DVT v Commissioner of Police

The Notice of Appeal and Amended Notice of Appeal

1. The Notice of Appeal was filed on 7 January 2021. The Respondent submits it was filed out of time and we will revert to that issue later in these reasons. The following is a summary of the grounds of appeal: 1. The Tribunal erred in finding that there were special circumstances warranting an award of costs. 2. Leave should be granted because the Decision involves an injustice which is reasonably clear, an issue of general public importance and/or an issue of principle. An issue identified in the Notice of Appeal was that the decision in D Constructions Pty Ltd v Walsh [2020] NSWCATAP 91 (D Constructions Pty Ltd v Walsh) was wrongly decided.
2. The Appellant was given leave to file an Amended Notice of Appeal and that was filed on 5 February 2021. The grounds of appeal may be summarised as follows: 1. Ground 1: as above. 2. Ground 2: the Tribunal erred by asking the wrong question, namely "does the withdrawal amount to surrender/capitulation?" 3. Ground 3: the Tribunal erred in the exercise of the discretion to award costs by failing to take into account the following relevant factors: 1. the Respondent would have incurred costs in any event by responding to the similar application in matter 2020/141477; 2. the Respondent's failure to inform the Appellant of the Decision in the AVS case prior to the Respondent incurring the costs of the submissions dated 31 July 2020 was disentitling conduct; 3. the Respondent's consent and agreement on 30 June 2020 that the proceeding would continue separately to matter 2020/141477 was disentitling conduct' 4. the Respondent's filing of material that was mostly unnecessary and a duplication was disentitling conduct; 5. the Appellant had a prima facie right to make the application under s 52(2) of the ADR Act; 6. the withdrawal of the proceedings was due to nothing more than a procedural irregularity. 1. Ground 4: the Tribunal denied the Appellant natural justice by determining the application by reference to a question not raised by the parties, namely whether withdrawal amounts to surrender/capitulation and not affording the Appellant an opportunity to make submissions on that issue. 2. Ground 5: the Tribunal erred by failing to give adequate reasons which address the matters in paragraphs (3)(a)-(f) above.

Appellant's Submissions

1. The Appellant's submissions may be summarised as follows: 1. Ground 1: the Tribunal failed to make an express finding that "special circumstances" exist. To the extent that the Tribunal was required to only make an implicit finding that special circumstances exist such finding (if made) was based on the mere fact that the proceedings below were unsuccessful. The Tribunal made no findings that any of the factors set out in s 60(3) of the NCAT Act existed. Withdrawing an application when the facts or law become known does not constitute a special circumstance warranting an award of costs. Alternatively, the Tribunal erred in finding that special circumstances exist based upon the mere fact that the Appellant withdrew his application when the decision in the AVS case became known to him. 2. Ground 2: the wrong question was asked by the Tribunal in [50] of the Decision. The correct question is whether special circumstances exist so as to enliven the power to make an award of costs and if so whether the special circumstances warrant the exercise of discretion to award costs. 3. Ground 3: the Tribunal was required to take into account or give sufficient weight to relevant matters in exercising the discretion to award costs: see Thompson v Chapman [2016] NSWCATAP 6 at [86]. The Tribunal failed to deal at all, or in detail, with the relevant matters set out in grounds 3(a) to (f) in the exercise of its discretion. By failing to deal at all, or in detail, with those relevant matters an inference is open to be drawn that the Tribunal erred by failing to take into account those relevant matters: see Director-General Department of Finance & Services v Porter [2014] NSWCATAP 6 at [29]. 4. Ground 4: the determination of the matter by reference to a question not raised by the parties and without affording the parties an opportunity to make submissions on that issue constitutes an error of law: see Dimitropolous v Capital Constructions Pty Ltd [2018] NSWCATAP 100 at [42]-[43]. Alternatively, it is a breach of the fundamental requirement of natural justice that a party to a dispute have a reasonable opportunity of learning what is alleged against him and putting forward his own case, in answer to it: Musico v Davenport [2003] NSWSC 977 at [108]. Neither party raised the question whether withdrawal amounts to surrender/capitulation, nor did the Tribunal invite the parties to make submissions on that issue. 5. Ground 5: the relevant matters described under ground 3 were not discussed and if the Tribunal did take into account those relevant matters it nonetheless erred by failing to give adequate reasons which address each of those matters.
2. The Appellant also submitted that the Notice of Appeal was lodged within time as it was lodged by email within 28 days from 10 December 2021 (being the date the Appellant received the Decision). The Appellant submitted that a hard copy of the Notice of Appeal was lodged on 5 January 2021. The Appellant also submitted that the Tribunal had sent orders to him on 24 December and 5 January which were incorrect. They were queried by the Appellant and the Tribunal provided the correct and final orders on 5 January 2021. Time therefore did not start to run until 5 January 2021. The Appellant submits that if the Appeal Panel finds that the Notice of Appeal was lodged out of time an extension of time ought to be granted because any delay was minor and there has been no prejudice to the Respondent.
3. Finally, the Appellant submits that the Appeal Panel should set aside the costs order and that each party should bear their own costs of the proceedings.

Respondent's Replies and Submissions.

1. The Respondent lodged a Reply to the Notice of Appeal and a further Reply to the Amended Notice of Appeal. There is no necessity to record the Respondent's submissions in those two Replies other than to record that one of the Respondent's submissions concerned whether the Notice of Appeal was filed out of time. The Respondent submits that the parties were notified on 7 December 2021 that the Decision would be published online on 8 December 2020. That occurred and the Appellant should be taken to have received the Decision on 8 December 2020. The Notice of Appeal was filed two days out of time. In addition, the Notice of Appeal was incomplete because it failed to articulate the grounds of appeal.
2. The Respondent's submissions may be summarised as follows:

Ground 1 1. It is apparent from the Decision that the Tribunal considered that the late withdrawal of the application can constitute a special circumstance within the meaning of s 60(2). The discussion at [47]-[52] headed "Can withdrawal constitute a 'special circumstance'?" makes that point clear. The concluding finding at [52] is that the Appellant had capitulated at a late stage and that the Respondent should accordingly be compensated for some of his costs evidently includes a finding of special circumstances. The Appellant's submission that the Tribunal was required to make an express finding that any of the factors in s 60(3) existed fails to recognise that the Tribunal "may", but is not required to, have regard to matters in s 60(3) in making a finding that special circumstances exist. In any case, the findings of the Tribunal at [45] indicate that the Tribunal accepted the Respondent's submissions on the relative strengths of the claims made by each of the parties in accordance with S 60(3)(c) and also the Respondent's submissions on the Appellant's failure to comply with the duty imposed by s 36(3) of the NCAT Act in accordance with s 60(3)(f). The submission that the withdrawal of the application should not constitute a special circumstance does not raise a question of law. Rather it is a challenge to the weight attributed by the Tribunal to the Appellant's withdrawal in determining that there are special circumstances warranting an award of costs. Leave is required to rely on this ground.

Ground 2 1. The Decision is unambiguous in the statement made at [50] that the Tribunal was concerned with, and found that, the withdrawal at a late stage can amount to special circumstances.

Ground 3 1. The merits of the six matters (described in subparagraphs (a) to (f)) said to have not been considered by the Tribunal do not raise a question of law. The Appellant's submissions are limited to whether the Tribunal was required to take into account the identified matters and whether it did so. The Tribunal will only fall into an error of law by a failure to take into account a relevant mandatory consideration: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. Not every consideration will be a relevant consideration in the sense that it is mandatory for the Tribunal to take it into account. A decision maker will only fall into an error of law where he/she was bound to take it into account. There is nothing in the text of s 60(2) or (3) that would mandate the Tribunal to consider any of the matters referred to under ground 3 even if the Tribunal was mandated to take into account the matters identified by the Appellant, and the submission that it did not do so is factually incorrect. With respect to ground 3(a), the Tribunal was aware that the Appellant had made a similar application in proceedings 2020/14177 (see [24] of the Decision). It is apparent from the Decision that the Tribunal considered the matters described in ground 3(b) and (c): see [44]-[45] and [27(2)]. With respect to ground 3(d) the Tribunal found that the Respondent should be compensated for some of its costs [52] and that a discounted sum of $5000 was "fair". Similarly, ground 3(f), was before the Tribunal and acknowledged [27]. With respect to ground 3(e) the fact that the Appellant may have had the right to make the application does not prevent the Tribunal from finding that there are special circumstances warranting an award of costs by reason of the withdrawal and dismissal.

Ground 4 1. This ground has no basis because the Respondent had submitted at first instance that the withdrawal amounted to a concession of weakness and was a matter the Tribunal might consider as constituting a special circumstance. The Respondent also made submissions about the lateness of the withdrawal and the Tribunal acknowledged the Appellant's submissions at [27(7)].

Ground 5 1. An examination of the Decision demonstrates that the Tribunal was clear in its chain of reasoning as to how the facts before it could constitute special circumstances. 2. The submission that the Tribunal identified special circumstances purely because the Appellant had withdrawn his application is clearly an oversimplification of the Tribunal's reasoning. To the extent that the Appellant raises no question of law, leave is required but leave is not sought. In any event, the Respondent submits that leave should not be granted.

Extension of Time 1. With respect to the Appellant's application for time to lodge the appeal to be extended, the Respondent submits that the Tribunal sent a notification to the parties by email on 7 December that the Decision would be published and available online from 8 December 2020. The Appellant must be taken to be on notice of the effect of the Decision by 9 December at the latest. Although there was correspondence from the Tribunal which contained errors that was no more than a mere formality. The Appellant's intimation that he was confused is not credible. 2. The Respondent states that he reserves his position as to whether he will seek costs of the appeal. 3. Finally, the Respondent submits that there is no basis for the Appellant's name to be anonymized in relation to this costs appeal. No order has been made supporting anonymization. The Respondent states that it has sought orders in the proceedings below, and in the related proceedings below (2020/141477), for orders that the "non-publication order" be revoked. The Respondent submits that if those applications are resolved such that revocation takes place, then there should be a similar facility available to the Respondent to apply in these appeal proceedings for anonymization to be lifted. We are of the view that until there is an order revoking the prior order , the order for anonymization continues to apply to this decision .We will make an order to that effect.

Consideration

1. An appeal lies as of right on any question of law and with the leave of the Appeal Panel on any other the grounds (see s 80(2)(b) of the NCAT Act). The Tribunal has a statutory discretion to make an order for costs and, as was stated in the Conimos v Di Rico(No2)[2016]NSWCATAP138 decision the exercise of a statutory discretion can only be overturned on appeal in limited circumstances relying upon Micaleff v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] and Hannaford v Commonwealth Bank of Australia [2014] NSWCA 279 at [14] where Emmett JA held that any attack on a discretionary decision on a matter of practice and procedure must fail unless it can be demonstrated that the decision maker: 1. made an error of legal principle; 2. made a material error of fact; 3. took into account some irrelevant matter; 4. failed to take into account or gave insufficient weight to some relevant matter; or 5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred even though the error in question did not explicitly appear on the face of the reasoning.
2. The Tribunal's discretion to award costs under s 60 may only be exercised if the Tribunal is satisfied that there are special circumstances warranting an award of costs (s 60(2)). It is clear that the Tribunal was aware of that requirement as it not only quoted part of that section (see [17]) but also recorded the Respondent's submission concerning the factors relevant to an assessment of whether there are special circumstances to warrant an award of costs: see [21]. We deal with each of the grounds of appeal in the following paragraphs.

Ground 1

1. As stated earlier this ground challenges the finding there were special circumstances warranting an award of costs in favour of the respondent.
2. After outlining submissions and the factual background the Tribunal included the heading "Can a withdrawal constitute a 'special circumstance'?" above [47]. In that paragraph the Tribunal referred to the Appellant's submission that the "timing of a withdrawal does not give rise to special circumstances". The Tribunal then found at [52] that, in the circumstances, the Respondent should be compensated. It is clear that the Tribunal identified the statutory task before it, namely to be satisfied that there are special circumstances warranting an award of costs. It is also clear that the Tribunal decided that the withdrawal, in the circumstances, constituted special circumstances. Although it may be the case that the Tribunal did not expressly state that it found that the withdrawal constituted special circumstances, it nevertheless makes it clear by its language that it had made such a finding.
3. This ground also asserts that the Tribunal erred in finding that special circumstances exist based on the mere fact that the Appellant withdrew his application. In our view, that is not an accurate characterisation of the Decision. At paragraphs [50], [51] and [52] the Tribunal made it clear that the Decision was based upon the fact that the Tribunal thought that the Respondent's costs had been wasted as the withdrawal was made after exchange of submissions, the matter had been set down for "hearing" in circumstances where the decision to withdraw was based upon the Appellant's realisation that the AVS case was against him, knowledge of which case he had had for some time prior to the withdrawal. It is not accurate to say that the Tribunal found that the "mere withdrawal" constituted special circumstances. Accordingly ground 1 is rejected.

Ground 2

1. In our view there was no error by the Tribunal in considering, having regard to the factual circumstances, whether the Respondent's withdrawal amounted to surrender/capitulation.
2. Where s 60 applies, the Tribunal must first be satisfied that there are special circumstances. If so, the Tribunal then has a discretion to award costs. Special circumstances are circumstances out of the ordinary but not necessarily extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11] referring to Santow JA in Cripps v G & M Mawson [2006] NSWCA 84 at [60]. Whether special circumstances exist is a question of fact.
3. Section 60(3)(a)-(f) specifies certain matters the Tribunal may consider in determining if there are special circumstances. Section 60(3)(g) makes clear that the enquiry as to the existence of special circumstances is not limited to those matters. Rather the Tribunal may consider "any other matter the Tribunal considers relevant".
4. The Tribunal formed the view that the late withdrawal, after the Respondent had incurred costs, was a matter that it was entitled to take into account in determining there was special circumstances. There is no error displayed in the Decision.

Ground 3

1. None of the matters in ground 3 listed in subparagraphs (a) to (f) are matters which the Tribunal is mandated to consider. In so far as the appellant contends otherwise we disagree. The language of s 60(3) does not support this interpretation.
2. To the extent that the Appellant submits that ground 3 should be considered as a leave ground the view we take is as follows: 1. Ground 3(a): it is clear that the Tribunal was aware of the other proceedings and that it did not consider costs incurred by the Respondent in those proceedings warranted no order for costs in these proceedings. The Appellant's submission assumes that the Respondent's costs in these proceedings were entirely duplicated in the other proceedings and that costs would be awarded in the other proceedings. The basis for those assumptions is not established.. 2. Ground 3(b): in our view there was no obligation upon the Respondent to inform the Appellant of the Decision in the AVS case prior to the Respondent complying with the directions to file submissions which it did by the directed deadline of 31 July 2020. Accordingly, there was no disentitling conduct of the Respondent. 3. Ground 3(c): the Tribunal was aware of this submission: see [27(2)] of the Decision and it is reasonable to infer that the Tribunal did not regard the submission as detracting from its conclusion that by reason of the Appellant's late surrender or capitulation the Respondent was entitled to costs. No error of law is displayed and nor does the Decision display a miscarriage of the Tribunal's discretion. 4. Ground 3(d): this submission was made by the Appellant in the proceedings below and, as the Respondent submits, the Tribunal was satisfied that the Respondent should be compensated for some of its costs. The Decision in this respect is not inconsistent with the possibility that the Respondent may have filed unnecessary and duplicated material. In any event, no question of law nor leave ground has been established. 5. Ground 3(e): we agree with the Respondent's submissions that the alleged prima facie right for the Appellant to make the application under s 52(2) of the ADR Act does not have the consequence that in the circumstances of the Appellant's late surrender/capitulation the Tribunal cannot find that there are special circumstances warranting an award of costs. 6. Ground 3 (f): we do not understand the withdrawal to have been due to "nothing more than a procedural irregularity". It was the case that the Appellant withdrew the proceedings before determination and the proceedings were dismissed. There is nothing illogical or unjust in the Tribunal determining that costs incurred by the Respondent were wasted in the circumstances and that it was warranted that those costs (or some portion) be paid by the Appellant.

Ground 4 1. The Tribunal's determination that the conduct of the Appellant constituted a capitulation or surrender was based upon the finding that the Appellant had formed the view that its application was doomed to failure. That view, in turn, had been formed in part by an assessment of the judgment in the AVS case. As the Respondent submits, the Tribunal had before it submissions by the Respondent to the effect that the withdrawal constituted a concession as to the weakness of the Appellant's case. In substance the characterisation of surrender/capitulation was no different from the submission that the Appellant's case was weak, misconceived and lacking in substance. In our view, the submissions put forward by the Appellant to the Tribunal included submissions intended to address the issue of whether the withdrawal of the application was occasioned by a late realisation that the application lacked merit. The Tribunal's Decision to the extent that it was based upon the withdrawal being characterised as "capitulation/surrender" was within the scope of the Appellant's submissions, and consequently there was no procedural unfairness or denial of natural justice by reason of the final characterisation of the Appellant's conduct as described by the Tribunal.

Ground 5 1. In our view there is no basis to this ground. The Tribunal's reasons are clear and adequate. They conform to the guidance offered in s 62(3) of the NCAT Act which is applicable when there is a request for a written statement of reasons. Section 62(3) provides: (3) A written statement of reasons for the purposes of this section must set out the following-- (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.

1. The Appellant submits that the reasons were inadequate because the Tribunal failed to address each of the matters identified in ground 3. There is no absolute requirement to address each and every matter raised by a party in proceedings. The Tribunal acknowledged in the Decision the submissions put by the parties. However, that does not mean that it is necessary for the Tribunal to make a determination with respect to each and every submission. The Appellant has not identified a matter ignored by the Tribunal, which had it been considered, would have led to a different outcome.

Leave to Appeal

1. To the extent that the Appellant's submissions do not give rise to a question of law but are based upon a ground requiring leave, there is in our view no basis for the Appeal Panel to grant leave. This is because in our view there is no question of principle, clear injustice or other matter which would normally involve the grant of leave: see the decision in Conimos v Di Rico (No 2) [2016] NSWCATAP 138 at 22.
2. As we understand it the Appellant is a lay person and it may be the case that he did not initially appreciate the fact that the initiating application lacked merit. However, having had the defects in his claim drawn to his attention and having regard to the delay in withdrawing the proceedings, it was open to the Tribunal to find special circumstances and exercise its discretion to award costs as permitted by s 60.
3. In this regard it must be remembered that an award of costs is made not with a view to punishing a party but rather with the view to compensating the other party for the costs it has incurred (see Oshlack v Ricmond River Council [1998]HCA11 at [67]).
4. Although the Appellant did not in his submissions elaborate on the issue he raised in the Notice of Appeal concerning the decision in D Constructions for completeness, we should note that no principle of general public importance arises in connection with the decision in D Constructions. That case concerned the exercise of discretion where r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) was engaged.
5. It follows that leave to appeal should be refused.

Extension of Time

1. In our view the Appellant received notice of the Decision on 8 December 2020 having been notified the previous day that the Decision would be published online on 8 December. There is no evidence that the Appellant could not on that day access the Decision online. It follows that the appeal was filed out of time by two days. There is no apparent prejudice to the Respondent in the Appellant being granted leave to file the Notice of Appeal out of time having regard to the views that we have expressed above that the appeal should be dismissed. Given that outcome, the lack of prejudice and the short delay in filing the Notice of Appeal we will grant the Appellant an extension of time.

Conclusion and Orders

1. It follows from the above that the appeal must be dismissed
2. The Appeal Panel makes the following orders: 1. The order dispensing with a hearing is affirmed. 2. The time for filing the Notice of Appeal is extended to 7 January 2021. 3. (3) Leave to appeal is refused and the appeal is dismissed. 4. The Respondent must file and serve within 14 days any submissions it wishes to make in support of an order for costs of the appeal. 5. The Appellant has 14 days thereafter to file and serve any submissions in opposition to the Respondent's submissions on costs of the appeal. 6. The parties' submissions on costs of the appeal should include whether the Appeal Panel may decide costs of the appeal "on the papers" and thus dispense with a hearing on costs of the appeal. 7. The order made in the proceedings at first instance pursuant to s64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication or the broadcast of the name of the Appellant (DVT) continues to apply to these appeal proceedings.

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: 04 November 2021