Following the decision made by the Tribunal in Dare v Safework NSW {2021] NSWCATAD 12, Mr Dare has applied for an order for costs under section 60 of the Civil and Administrative Tribunal Act 2013 (the CAT Act). That decision determined an administrative review application made by Mr Dare with respect to a decision by Safework NSW to cancel his accreditation as a high risk work license assessor under the Work Health and Safety Regulation 2017 (NSW) (the Regulation) and to disqualify him from reapplying for accreditation five years.
The determination by the Tribunal was made on the papers. The Tribunal set aside the decision made by Safework NSW and instead suspended Mr Dare's accreditation from 1 June 2000 until the date of the decision. The effect of this was that Mr Dare regained his accreditation when the decision was made. The formal orders made by the Tribunal were:
(1) Pursuant to Section 50(2) of Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with an oral hearing in this matter.
(2) The decision of SafeWork NSW to cancel Mr Dare's accreditation as a high risk work licence assessor and to disqualify him from reapplying for a period of 5 years is set aside.
(3) In its place the Tribunal suspends Mr Dare's accreditation as a high risk work licence assessor from the period from 1 June 2020 until now, with the result that Mr Dare has now served his suspension in full.
(4) SafeWork NSW is to restore Mr Dare's accreditation documents to him forthwith.
Following publication of the decision Mr Dare's solicitors wrote seeking an order for costs. On 4 February 2021 I made the following orders:
1 The Tribunal has been advised that the applicant wishes to seek an order for costs in this matter. The Tribunal notes that the general rule under section 60 of the Civil and Administrative Tribunal Act 2013 is that each party pays their own costs. Before the Tribunal can make an order for costs it must be satisfied that there are special circumstances warranting such an order.
2 If the applicant, after considering the provisions of section 60, still wishes to seek costs he should file and serve a written application to that effect with submissions in support (limited to 2000 words) by 25 February 2021.
3 The respondent shall file and serve any submissions in response (limited to 2000 words) by 18 March 2021.
4 The parties submissions should address whether the issue of costs can be determined without a hearing on the materials supplied.
5 The applicant shall file and serve any submissions in reply (limited to 1000 words) by 1 April 2021.
6 The cost application is then to be referred to me to determine if it can be decided on the papers and, if so, to determine it.
7 If the applicant decides not to proceed to seek an order for costs he should advise the Tribunal and the respondent of that decision by 25 February 2021.
The parties have since filed submissions on the issue of costs, with Safework NSW's submissions, dated 14 April 2021, being late. On 15 April 2021, Mr Dare's representative wrote to the Tribunal opposing an extension of time being granted for the late filing of those submissions stating that the applicant had suffered from being without his accreditation and would be further prejudiced by the delay occasioned if an extension of time were granted. Of the Tribunal's own motion, I extended time so that the respondent's submissions were filed on time. It would have been unjust to proceed to determine the cost issue disregarding the respondent's submissions. I also extended time for Mr Dare to filed submissions in reply. None have been received.
For a more complete understanding of the proceedings regard should be had to decision I made on the substantive application: see Dare v Safework NSW {2021] NSWCATAD 12. I do not intend to repeat or explain matters traversed in that decision here. It speaks for itself.
[2]
Material before the Tribunal.
In addition to the material I considered when making the original decision in this matter, the parties have filed each filed submissions on costs. In considering this matter I have had regard to all the materials placed before the Tribunal by the parties.
[3]
Should the application be determined without a hearing?
Section 50 (2) to (4) of the CAT Act provide:
(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:
(a) afforded the parties an opportunity to make submissions about the proposed order, and
(b) taken any such submissions into account.
(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
In this case both parties have indicated their agreement to the costs issue being determined on the papers. Having reviewed all the materials I am satisfied that this is matter that can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing.
[4]
The Tribunal's power to award costs in the Administrative and Equal Opportunity Division.
Section 60 of the CAT Act relevantly provides:
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following -
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),
(g) any other matter that the Tribunal considers relevant.
(4) If costs are to be awarded by the Tribunal, the Tribunal may -
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
In awarding costs under s 60 the Tribunal exercises a discretion, which discretion is to be exercised judicially. In finding special circumstances the Tribunal may have regard to the factors set out in s 60(3), although a positive conclusion with respect to those matters do not necessarily mean that the Tribunal must be satisfied that there are special circumstances. With respect to special circumstances the Appeal Panel in AIN v Medical Council of New South Wales [2015] NSWCATAP 241 explained:
145. The meaning of the term "special circumstances" has been the subject of several decisions in the Appeal Panel (see for example Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Sahade v Owners SP 62022 [2015] NSWCATAP 225; Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 and Gaynor v Burns [2015] NSWCATAP 150). Those cases show that the expression "special circumstances" means circumstances which are out of the ordinary but not necessarily extraordinary or exceptional. Of course, each case will depend on its own facts and the Tribunal may "in a structured exercise of discretion, have regard to the criteria in s 60(a)-(g)": Gaynor v Burns [2015] NSWCATAP 150 at [18].
146. When one has regard to the criteria in s 60(3)(a)-(g) it is clear, in our opinion, that the conduct of a party, including their subjective motives and conduct of the litigation, can be a relevant factor for the Tribunal to take into account. That subjective motive or conduct could be relevant to most of the criteria set out in s 60(3): s 60(3)(a) - whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party; s60(3)(b) - whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; s 60(3)(c) - the relative strengths or weaknesses of the claims of the parties and whether a claim of a party has no tenable basis in fact or law; s 60(3)(e) whether the proceedings were frivolous or vexatious; and s 60(3)(f) - whether a party has failed or refused to comply with the statutory obligation of co-operation imposed by s 36(3) of the Act. Additionally, a party's subjective motives, conduct or behaviour in relation to proceedings before the Tribunal could be relevant to the undefined "other matters" criteria pursuant to s 60(3)(g).
[5]
Brief summary of Mr Dare's position on costs.
In submissions, Mr Dare argued that special circumstances justifying an award of costs in his favour exist in this case exist because the issues "were complex and beyond the self represented party". They put his career in serious jeopardy and in those circumstances, "it is just and reasonable" that Mr Dare be reimbursed his costs.
The submissions note that the Tribunal found the maximum penalty imposed on Mr Dare excessive and added that Safework NSW had failed to engage in discussions or did not consider reducing the penalty. This failure, it is argued, placed Mr Dare in a disadvantaged position vis-à-vis Safework NSW and unnecessarily prolonged the proceedings: both factors to be taken into account pursuant to section 60(3)(a) and (b) of the CAT Act. Further, Mr Dare submits that Safework NSW required him to meet facts and events put forward by a witness who was himself under investigation/prosecution, whose evidence should not have been relied on. Mr Dare's submissions give no further explanation of this but suggest that there was no tenable basis to Safework NSW's claims against him. They go on to submit that the fact that the matter was determined on the papers itself, shows that the matter was complex and difficult because a large volume of material had to be considered and addressed.
Mr Dare submits that the result of the proceedings was that he received a suspension for unprofessional conduct involving the disclosure of personal information to a Victorian government Department. He was allowed to recommence work immediately following the decision. Ultimately, Mr Dare's submission is that the outcome of the proceedings was favourable to him.
It should be noted that in his submissions Mr Dare relied on rule 38 of the Civil and Administrative Tribunal Rules 2014. That rule has no application to proceedings in the Administrative and Equal Opportunity Division and applies only to specific proceedings in the Consumer and Commercial Division.
[6]
Brief summary of Safework NSW's position on costs.
Safework NSW points out that the Tribunal was satisfied that Mr Dare had engaged in unprofessional conduct and determined to suspend his accreditation for the period between the original decision and the publication of the Tribunal's decision. The Tribunal agreed that it was open to Safework NSW to cancel and disqualify the accreditation, but thought the penalty imposed excessive.
Safework NSW takes issue with each of the propositions advanced by Mr Dare with respect to the conduct of the proceedings. It submits that both factual and legal issues were determined on the papers and that this does not indicate great complexity. It points to the fact that the outcome of the proceedings involved the Tribunal making findings of unprofessional conduct against Mr Dare and imposing a period of suspension. It says that no special circumstances exist justifying an order for the costs.
[7]
Consideration.
The starting point when considering costs in the Administrative and Equal Opportunity Division of the Tribunal is that set out in section 60(1) of the NCAT Act, namely that each party should bear their own costs. It is not a jurisdiction in which costs go with the event and in which success - or partial success - in proceedings should give rise to an expectation of costs.
The Tribunal may exercise its discretion to make an order for costs under section 60(2) when it is persuaded that special circumstances exist meriting an order for costs.
In Mr Dare's case I am not persuaded that special circumstances exist. Whilst he was successful in reducing the penalty and in overcoming some of the findings made against him by Safework NSW, he was nonetheless found to have engaged in unprofessional conduct and had his accreditation suspended.
The possible consequences to Mr Dare's living, which the proceedings threatened, are not unusual in the Administrative and Equal Opportunity Division . They do not of themselves constitute special circumstances. There is nothing in the conduct of Safework NSW - aside from making the decision he sought to review - that disadvantaged Mr Dare in the conduct of the proceedings, that unnecessarily prolonged the proceeding, or that involved a breach of Safework NSW's duty to the Tribunal. While I found the penalty imposed against Mr Dare to be excessive, the decision to cancel his accreditation and disqualify him for five years was one that was open to Safework NSW under the Regulation. It was not untenable.
I accept that the proceedings involved a degree of complexity, especially in understanding the legislative scheme. Complexity of that sort, however, is an everyday occurrence in occupational licensing cases. In my view, it does not constitute a special circumstances. If it did, I would not consider it a special circumstance meriting an order for costs in this case.
In my view the correct outcome in this case is that there be no order as to costs. I am not satisfied that special circumstances exist. Ms Dare's submission that "it is just and reasonable" that he receive his costs does not address the applicable test.
[8]
Order.
The Tribunal makes the following order:
1. Under s 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing of the costs issue in this matter.
2. No order as to costs.
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 30 August 2021