Dassouki v Department of Fair Trading

Background

1. The substantive proceedings relate to a decision by the Department to reprimand Mr Dassouki and cancel his contractor licence. The Department also disqualified him from holding certain authorities for 12 months. Mr Dassouki applied to the Tribunal for a review of that decision. On 17 January 2019, the Tribunal made the following orders: 1. The decision under review is varied by shortening the period of disqualification from 12 months to 6 months. 2. This decision will take effect after the expiration of 28 days from the date of this decision.
2. The 28 day delay was to allow Mr Dassouki to arrange for the future operation of his plumbing business.
3. After the Tribunal handed down the decision, the Department wrote to Mr Dassouki's lawyer saying that the effect of the Tribunal's decision was that Mr Dassouki's disqualification period would expire on 15 August 2019. That period was calculated on the basis that it was 6 months from the date of the Tribunal's decision, allowing for the 28 day delay in the decision coming into effect. Mr Dassouki's lawyers wrote back saying that Mr Dassouki's contractor licence had already been cancelled for approximately two months prior to the Tribunal staying the cancellation. The 6 month disqualification period should be understood as including that period. Mr Dassouki's lawyers pointed out that the Department's interpretation of the Tribunal's orders would result in Mr Dassouki being disqualified from holding an authority for more than 6 months. The letter went on to note that breach of the Tribunal's order is subject to a penalty.
4. Five days later, having not received a reply to their letter, Mr Dassouki's lawyers wrote to the Department again. In that letter, Mr Dassouki's lawyers stated that if the Department stood by its interpretation of the Tribunal's orders, they were instructed to apply for orders that the Department is in contempt of the Tribunal's orders. The Department responded on the same day maintaining that its interpretation of the Tribunal's orders was correct and inviting Mr Dassouki to "seek clarification" from the Tribunal about what the orders mean.
5. Mr Dassouki applied to the Tribunal for an order that the Department's failure to comply with the Tribunal's orders constitutes contempt under s 73 of the Civil and Administrative Tribunal Act 2013 (NSW). Section 73(2) of the NCAT Act provides that: (2) A person is guilty of contempt of the Tribunal if the person does or omits to do anything that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.
6. Mr Dassouki also applied for his costs to be paid on an indemnity basis.
7. At a directions hearing the Tribunal constituted to hear the contempt application expressed the preliminary view that Mr Dassouki's interpretation of the Tribunal's orders was correct. The Department then conceded that the correct interpretation of the Tribunal's orders was that the period of about two months when Mr Dassouki had been disqualified should count towards the 6 month disqualification period. Based on that concession, Mr Dassouki has withdrawn the contempt application. The remaining issue is whether the Department should be ordered to pay Mr Dassouki's costs and, if so, whether costs should be paid on a part/party basis or on an indemnity basis.

Costs rule

1. The functions of the Tribunal when dealing with alleged or apparent contempt are part of its enforcement jurisdiction: NCAT Act, s 33(1). The Tribunal also has jurisdiction to make "ancillary" decisions such as costs orders in contempt proceedings: NCAT Act, s 33(2) and s 4 (definition of "ancillary decision"). The general rule is that each party is to pay their own costs: NCAT Act, s 60(1). The Tribunal may award costs "only if it is satisfied that there are special circumstances warranting an award of costs": NCAT Act, s 60(3).
2. Under s 60(3), in determining whether there are special circumstances, 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.
3. The special circumstances on which Mr Dassouki relied in this case were that the Department had: 1. interpreted the Tribunal's orders incorrectly leading to the conclusion that any defence to the contempt application would have been weak; 2. conducted the proceedings in a way that unnecessarily disadvantaged Mr Dassouki by requiring him to initiate contempt proceedings; 3. been responsible for prolonging unreasonably the time taken to complete the proceedings by interpreting the Tribunal's orders incorrectly; and 4. not complied with the Model Litigant Policy and the duty to co-operate with the Tribunal to give effect to the guiding principle to "facilitate the just quick and cheap resolution of the real issues in the proceedings."

Are there special circumstances justifying an award of costs?

Strength of the parties' claim

1. 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, is a relevant consideration: NCAT Act, s 60(3)(c). Mr Dassouki submitted that the Department's concession that his interpretation of the Tribunal's orders was correct, amounts to a capitulation and that a costs order is warranted. Alternatively, Mr Dassouki submitted that as the Department has now agreed with his interpretation of the Tribunal's orders, the Department has "purged" the contempt. In either case, the Department's actions demonstrate that any defence it may have brought had no tenable basis in fact or law, or was weak.
2. Failure to comply with a court or tribunal order can constitute contempt. Courts have made orders for costs in connection with contempt proceedings which are discontinued because the contempt is later purged: Wildbeach Corporation Pty Ltd v Atkins [2008] WASC 29; Zaaiter v Perpetual Trustees Victoria Ltd [2010] NSWSC 512 at [15]. But this is not a case where the Tribunal's orders directed, in unambiguous terms, what was to be done: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106, Burns v Corbett [2015] NSWCATAD 188 at [68]. Hodgson JA elaborated on the requirement for the order to be in unambiguous terms in Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 at 36: It is very desirable that orders be completely self-contained and self-explanatory. However, as pointed out by Campbell J in Kirkpatrick at [55], the recipient of an order is expected to try to understand and obey it. In my opinion, in considering whether an order is expressed so that the recipient knows or plainly should know what is required, it may be appropriate to have regard to the circumstances in which the order is made, including the terms of the reasons given for the order and elements of applicable law.
3. Adopting Hodgson JA's wording, a question for the Tribunal hearing the contempt application would have been whether, taking into account all the circumstances, the Department knew, or plainly should have known, what was required. The orders, when read in isolation, suggest that the disqualification period of six months is to commence 28 days from the date of the Tribunal's reasons. There is no mention in the orders or the reasons for decision to the previous disqualification period being included or excluded. That circumstance makes it arguable that the Department did not know and should not have known what was required.
4. Even if a Tribunal hearing the contempt application found that the Department knew or should have known what was required by the Tribunal's orders, s 73(2) of the NCAT Act contains a defence to a charge of contempt. The defence applies if "the person establishes that there was a reasonable excuse for the act or omission". Again, if the contempt proceedings had proceeded, the Department may have provided evidence and submissions supporting a finding that the relevant officers had such an excuse.
5. It follows that, in my view, 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, does not warrant making a costs order in this case.
6. We deal next with a submission by the Department that the Tribunal could have applied to correct the "error" in the Tribunal's decision under the so-called "slip rule": NCAT Act, s 63. According to the Department, there was a 'defect of form' in the Tribunal's orders because the order did not specify the date on which Mr Dassouki's disqualification period would end. If the Tribunal intended the earlier two month disqualification period to be included, then the Tribunal should have stated the end date of the disqualification period in the orders. The Department acknowledged that this was not their view when they wrote to Mr Dassouki's solicitor on 27 February 2019. In that email, the Department expressed the view that the orders "are not infected with error of any kind, nor are they orders amendable to amendment by application of the slip rule." We accept that the Department now takes a different view.
7. In support of this submission, the Department relied on the Tribunal's decision in Place v Department of Finance, Services and Innovation (No. 2) [2017] NSWCATAD 21 at [9] where the "slip rule" is explained: Section 63 is a statutory version of the common law "slip rule", the purpose of which is to avoid injustice by permitting the rectification of errors or omissions in the orders or reasons of a court or tribunal: Batagol & McGill v Monk [2000] VSC 48, [17]. The test for applying it has been held to be whether, if the matter had been drawn to the tribunal's attention, a mistake or omission would have been corrected at once: Riga v Peninsula Home Improvements [2000] VCAT 56. The following passage from R v Cripps; ex parte Muldoon [1984] QB 686, 695 has often been referred to: [The slip rule] is surprisingly wide in scope. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. But it also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended.
8. Although wide in scope, the slip rule does not apply in this case. The Tribunal has power to vary the Department's decision: Administrative Decisions Tribunal Act 1997 (NSW), s 63(3)(b). The Tribunal varied the decision to substitute a 6 month disqualification period for a 12 month period. When varying a decision of an administrator, the Tribunal may substitute one period of disqualification for a shorter period of disqualification. There is no defect of form if the Tribunal fails to specify the end date for the disqualification period.

Unreasonable delay and duty to co-operate

1. Two other circumstances which Mr Dassouki said warranted a costs order were unreasonable delay and non-compliance with the Department's duty to co-operate with the Tribunal. Both the Model Litigant Policy for Civil Litigation published by the Department of Premier and Cabinet, and the NCAT Act refer to the guiding principle in civil litigation which is to facilitate the "just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 60(3)(f).
2. When the Tribunal expressed the preliminary view at a directions hearing that Mr Dassouki's interpretation of the Tribunal's orders was correct, the Department agreed with that view. That was the first time the Department had heard the Tribunal's preliminary view and the concession was made as soon as instructions had been obtained.
3. That concession meant that the contempt application did not go ahead and costs were saved. Mr Dassouki's response was that it was too late to make that concession after the contempt application has been brought.
4. In my view, the Department's disagreement with Mr Dassouki's view before contempt proceedings were instigated does not constitute non-compliance with the Model Litigant Policy or with the duty to co-operate with the Tribunal to give effect to the guiding principle. The Tribunal's orders were not unambiguous, nor did the Department fail to co-operate or unreasonably delay the proceedings.

Should the costs be paid on an indemnity basis?

1. As we have decided not to make a costs order, there is no need to consider whether such an order should be made on an indemnity basis.

Order 1. The applicant's application for costs is dismissed.

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: 28 March 2019