DVT v Commissioner of Police - [2021] NSWCATAP 344 - NSWCATAP 2021 case summary — Zoe

NSWNSWCATAP

DVT v Commissioner of Police

[2021] NSWCATAP 344

NCAT Appeal Panel|2021-11-04

View original source

At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2021-11-04

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

Background

This is an appeal from a decision (the Decision) published on 8 December 2020, in which the Tribunal made orders to the following effect: 1. Pursuant to ss 60(2) and (4) of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act) the Applicant [now the Appellant] is to pay the Respondent's costs of the proceedings in the sum of $5000 (order 1). 2. The proceedings are dismissed pursuant to s 55(1)( a) of the NCAT Act (order 2).
Order 2 was made pursuant to s 55(1)(a) which provides that the Tribunal may dismiss proceedings if the Applicant withdraws the application. That order is not the subject of this appeal. The appeal only concerns order 1.
An order has been made in these proceedings for the appeal to be determined on the papers. Neither party has submitted otherwise. We are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other material lodged for this appeal. We will make an order affirming the order dispensing with a hearing.
Section 60 of the NCAT Act provides: 60 Costs (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. (5) In this section-- "costs" includes-- (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

The reasoning of the Tribunal as recorded in the Decision may be summarised as follows: 1. On 27 August 2020, the Appellant notified the Tribunal of his intention to withdraw his application in the proceedings which had been filed on 15 June 2020 at [1]. 2. The Respondent seeks his costs under s 60 of the NCAT Act at [2]. 3. The application (which was lodged with the Tribunal on 15 June 2021) concerned the Appellant's application for an order under s 52(2) of the Administrative Decisions Review Act 1997(ADR Act) requiring the Respondent to provide better reasons for a decision made under s 49(3) ADR Act at [3]. 4. On 26 June 2020 the Respondent invited the Appellant to withdraw the application for three reasons. The first was that the Appellant had commenced other proceedings in the Tribunal on 12 May 2020 in which the Appellant sought administrative review of the same internal review made by the Respondent under s 55 of the Privacy & Personal Information Protection Act 1998 (PPIP Act). The second reason was that there was no utility in the relief sought by the Appellant in these proceedings because the other proceedings (the PPIP Act proceedings) involved a fresh review of the conduct of the Respondent. The third reason was that the application was misconceived or vexatious at [4]. 5. Pursuant to directions made by the Tribunal the Appellant (then the Applicant), filed and served submissions on 17 July 2020 and the Respondent filed and served submissions on 31 July 2020. On 1 August 2020 the application was allocated for determination on the papers at [6] and [7]. 6. On 24 August 2020 the Appellant sought the Respondent's consent for him to withdraw the proceedings on the basis that the Appellant had recently become aware of the judgment in AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391. That case had been referred to by the Respondent in his submissions at [8]. 7. The Appellant requested the Tribunal to withdraw his application and the Respondent informed the Tribunal on 28 August 2020 that he objected and would be seeking costs at [9]. 8. Pursuant to directions made subsequently, the Respondent filed and served an application for a costs order seeking costs in the fixed sum of $7027.26 and the Appellant filed and served submissions in opposition at [11]-[15]. 9. The Decision records that the NCAT Act makes express provision for an award of costs under s 60(2) only if the Tribunal is satisfied that there are special circumstances warranting an award of costs at [17]. 10. One circumstance which may justify an order for costs where there has been no hearing on the merits is where one party capitulates or surrenders during the course of proceedings at [36]. The effect of the dismissal under s 55(1)(a) is that the proceedings are brought to an end without a hearing on the merits at [38]. 11. Where there has been no determination on the merits and a party seeks to withdraw or discontinue without the consent of the other party, as in this case, it is necessary to consider the circumstances causing the withdrawal. The reasons, the timing and manner of the applicant's intention to withdraw the application should be considered to better inform the Tribunal whether the withdrawal may be characterised as a form of surrender/capitulation or something else at [41]. 12. The Decision records the Respondent's submission that the Appellant's application pursuant to s 52 which was brought over a month after his application for administrative review and more than a week after a copy of the internal review decision was lodged with the Tribunal in those proceedings is misconceived and lacks utility. There remains no obligation on the Respondent pursuant to s 49 where the Respondent is now under an obligation to lodge a Statement of Reasons pursuant to s 58(1)(a)at [43]. 13. The Decision records the Respondent's submission that in the AVS case it was held that the obligation to provide reasons pursuant to s 49 of the ADR Act was eclipsed by the obligation under s 58(1)(h) on the commencement of administrative review proceedings at [42]. 14. The Tribunal found that on becoming aware of the AVS case the Appellant did not properly withdraw his application. He did not seek to withdraw his application until 27 August 2020 at [44]. 15. The Tribunal further found that it was satisfied that the withdrawal was "occasioned solely or predominantly because of the Appellant becoming aware or realising the effect of the decision" in AVS. The Tribunal found that the Respondent had brought the AVS case to the attention of the Appellant in his submissions dated 31 July 2020 at [45]. 16. At [50] the Tribunal stated that it was "considering the question of wasted costs when the withdrawal was made after a full exchange of submissions, after the matter had been set down for 'hearing' and when it was awaiting a determination 'on the papers', such that having regard to the reasons given by the applicant to explain the withdrawal, does the withdrawal amount to surrender/capitulation?". 17. At [52] the Tribunal stated that it was satisfied that the Appellant had "effectively surrendered or capitulated to the Respondent at a stage when the matter was to be 'heard', having accepted the Respondent's submission that the decision of the Supreme Court in AVS did not support the matters brought in his application". The Tribunal further found that in seeking to withdraw the application "when he did", the Respondent had by that time incurred legal expenses "thrown away" in preparing submissions and evidence. Accordingly, the Tribunal said that the Respondent should be compensated for some of its costs and that a discounted sum of $5000 would be appropriate at [55].

[2]

The Notice of Appeal and Amended Notice of Appeal

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.
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.

[3]

Appellant's Submissions

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.
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.
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.

[14]

Ground 3

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.
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.

DVT v Commissioner of Police

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (14)

Cited By (2)