DVT v Commissioner of Police

NCAT Appeal Panel|2022-01-11

Background

On 4 November 2021 we dismissed an appeal in respect of an order for costs made against the appellant in favour of the respondent (Commissioner) in proceedings 2020/00178009 in the Administrative and Equal Opportunity Division. We published written reasons for our decision: DVT v Commissioner of Police (No 2) [2021] NSWCATAP 344 (principal reasons).
In doing so, we made orders permitting the parties to make any application for costs in connection with the appeal.
The Commissioner has applied for costs of this appeal. In addition, an order is sought to prevent the publication of various evidence put forward in support of the application for costs contained in an affidavit of Tram Nguyen affirmed 12 November 2021 (Nguyen affidavit).
Each of the parties has provided written submissions.
Both parties agree an order should be made dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) so that the application for costs could be dealt with on the papers. We will make that order as we are satisfied that the issues for determination may be determined in the absence of the parties by considering their written submissions and other material lodged with the Appeal Panel.
There is no dispute that s 60 of the NCAT Act applies to this application. That section provides that each party is to pay their own costs although the Tribunal may make an order for costs if satisfied that there are special circumstances warranting such an award. Section 60(3) sets out matters to which the Tribunal may have regard in determining whether there are special circumstances. We dealt with what constitute special circumstances in our principal reasons at [19] and following when considering the appeal against the cost decision at first instance. It is not necessary to repeat those matters here.

Consideration

The Commissioner submits that there are special circumstances warranting an order for costs. The Commissioner says that the Appeal Panel should make a fixed sum costs order rather than an order that the cost be as agreed or assessed. The Commissioner seeks an amount of $10,000.
The application is supported by the Nguyen affidavit. There, the witness deposes to the charge rates of the Crown Solicitor's Office, who represented the Commissioner in these proceedings, and the time spent by employees of the Crown Solicitor in attending to this appeal.
In addition, the Commissioner seeks an order pursuant to s 64(1)(c) of the NCAT Act prohibiting "publication of information that tends to disclose the hourly rates charged by the Crown Solicitor's Office".
All orders are opposed by the appellant.

Are there special circumstances warranting an order for costs in the appeal?

In respect of there being special circumstances warranting an order for costs, the Commissioner relies on four matters.
First, the Commissioner says the appellant conducted the appeal in a manner that unnecessarily disadvantaged the respondent. Reliance is placed on s 60(3)(a) of the NCAT Act. The conduct was: 1. failure to pay the costs order of $5000 made in the proceedings at first instance in circumstances where there was no stay; 2. the untenable contention that the appellant did not require an extension of time to appeal; 3. the failure of the appellant to properly particularise his appeal; 4. the appellant's delay in filing his submissions in support of the appeal. This included notifying the Commissioner that he would be seeking an extension of time to file submissions in reply and then notifying the Appeal Panel that he would not be filing any submissions in reply in circumstances where the application he had made resulted in the Commissioner incurring expense in responding to the application for an extension of time; and 5. the appellant's failure to incorporate the Commissioner's requested amendments in to the index of the appeal bundle (namely that the Commissioner did not think some of the documents in the bundle were relevant to the appeal) and the imposition on the Commissioner to assist in the proper assembly of the appeal bundle "on effectively the day the appeal bundle was due".
In our view none of these matters constitute special circumstances warranting an order for costs.
The first matter has nothing to do with the conduct of the appeal by the appellant. The Commissioner was at all times free to enforce any money orders made in his favour.
The other matters, when considered in the context that the appellant is self-represented, are not matters which we would regard as out of the ordinary. The Appeal Panel is often confronted with self-represented parties having difficulty expressing the grounds of appeal and the issues that they wish to raise. Nonetheless, the factual disputes and the challenge to the discretion exercised by the Tribunal at first instance and the manner in which the appeal was conducted in dealing with those matters could not be said to have caused unnecessary disadvantage.
As to the issues raised concerning extensions of time, both to lodgement of the appeal and to file submissions, these are of no moment. The proceedings were ultimately determined on the papers and it could not be said that there was any relevant delay that unnecessarily lengthened the proceedings.
As to the complaints concerning the bundle of documents, any challenge to relevant documents was a matter easily dealt with through submissions and did not require an extended debate concerning what an index should include.
Secondly, the Commissioner says the proceedings were frivolous and lacking in substance. Reliance is placed on s 60(3)(e) of the NCAT Act.
As stated above, the appeal related to a challenge to factual findings concerning special circumstances and the exercise of a discretion to award costs. The appeal was not unarguable and we reject this submission.
Thirdly, the Commissioner says the appellant failed to comply with the duty imposed under s 36(3) of the NCAT Act. Reliance is placed on s 60(3)(f) of the NCAT Act.
Again the issues of timetabling, requests for extensions of time and the timely determination of the appeal are raised.
We are not satisfied that what occurred is out of the ordinary, particularly when one has regard to the appellant being self-represented. Further, and in any event, as the matter was to be determined on the papers it is difficult to see how the matters raised could have had any relevant impact on the just quick and cheap resolution of the real issues in dispute.
Fourthly, the Commissioner relies on s 60(3)(g) and says there are other matters which the Appeal Panel should take into account in determining there are special circumstances. These matters are: 1. The appellant refused a settlement offer whereby the Commissioner offered to accept $4000 instead of $5000 as ordered by the Tribunal at first instance; 2. Although the appellant is self-represented, this is not a reason to reject a finding of special circumstances on the basis a reasonable offer was refused. The Commissioner says the appellant is an "experienced litigator in a number of courts and Tribunals" and an "indefatigable litigant". The appellant has been on notice that an adverse costs order could be made against him since the Commissioner filed a reply to appeal on 25 January 2021 and since the offer of settlement on 2 February 2021. In this regard the Commissioner says that the appellant "has been on notice that the [Commissioner] would oppose any leniency being accorded to [the appellant] in respect of costs by reason of his self-represented status since the [Commissioner's] email to [the appellant] dated 2 February 2021; and 3. By reason of related proceedings in this Tribunal it has been and is necessary for two first instance Tribunal members, plus the Appeal Panel in these proceedings, and an Appeal Panel in another related appeal (2021/00056044) to deal with the appellant's applications which have been futile. 4. The fact the appellant is unlikely to have the financial capacity to meet any costs order (he being bankrupt) is not a relevant consideration as to whether there are special circumstances or whether a costs order should be made.
In our view, the fact that there have been related proceedings is not, in the present case, a reason to find special circumstances or make an award for costs in favour of the Commissioner in respect of the appeal.
As we said above, the appeal was not untenable.
Section 60(1) applied to the proceedings at first instance, that is the usual position is that each party is to pay their own costs. The Tribunal at first instance was satisfied that special circumstances existed and that those circumstances warranted the making of an order for costs. The decision was an appealable decision- as of right on a question of law or otherwise with leave: s 80(2)(b) NCAT Act. Exercising a right of appeal and seeking leave is not, of itself out of the ordinary.
We accept that an offer of compromise is a factor that may be taken into account in determining whether there are special circumstances. Relevantly, as the offer is in the nature of a Calderbank offer, one question is whether the refusal was unreasonable. The offer was contained in a letter dated 2 February 2021. The offer was made before any amendment was made to the Notice of Appeal and before any submissions were filed.
The offer was in the following terms: … in order to avoid the cost and delay of conducting the present appeal, the Commissioner is prepared to make an offer of settlement in relation to these proceedings. The Commissioner would be prepared to accept $4000 in satisfaction of the 8 December 2020 Costs Order, conditional on your withdrawal of these proceedings (AP 21/01297). The offer will expire at 5 PM on 4 February 2021. It is conditional on full payment of the of that some within 7 days of acceptance and time is of the essence in this respect. If payment does not occur within this time, the Commissioner reserves the right to treat himself as no longer bound by this offer or its acceptance. Payment may be made by way of bank cheque or direct deposit to the following account: …
The offer was only open for two days. It was made before the amended Notice of Appeal was filed and before any submissions were exchanged. The offer contained a condition that money was to be paid within 7 days
Having regard to the Commissioner's concession that it was unlikely the appellant "has the financial capacity to meet any costs order made, having regard to his bankruptcy status", on one view it would have been inappropriate for the appellant to have accepted that offer in circumstances where he would be unable to comply with its terms. In any event, by accepting the offer the appellant would have effectively abandoned his appeal with the Commissioner being able to avoid the compromise and pursue the earlier costs order if the amount of $4,000 was not paid.
In these circumstances we are not satisfied the refusal to accept the offer was unreasonable and we reject this basis for finding there were special circumstances warranting an award for costs.
It follows that we are not satisfied special circumstances have been made out warranting an order for costs and we will dismiss the application for a fixed sum amount.

Section 64 Order

As to the application for an order under s 64 of the NCAT Act to prohibit publication of the charge rates of the Crown Solicitor's Office we are not satisfied any proper basis exists to make such an order in the present case.
There is a cost dispute which the Appeal Panel is required to determine. The charge rates have been put in evidence to support a claim for a costs order to be made on a fix sum basis. A determination of that issue, if we had been of a view that a costs order should be made, would have involved an examination of the rates and work done as part of a determination whether a fixed sum costs order should be made and if so for what amount. Principles of open justice make it appropriate for the relevant evidence to be available so as to understand the reasons which might be provided in connection with such an award.
Cases such as Cianfrano v Director General, NSW Department of Commerce [2008] NSWADTAP 1 (Cianfrano) do not assist the Commissioner. Cianfrano involved an application under the then Freedom of Information Act 1989 (NSW), now repealed. It says nothing about keeping confidential evidence a party tenders concerning fees and charges incurred in support of an application for costs.
Accordingly, the application for an order under s 64 of the NCAT Act is dismissed.

Orders

The Appeal Panel makes the following orders: 1. The Appeal Panel dispenses with a hearing of the application for costs pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The respondent's application for costs in respect of the appeal is dismissed. 3. The respondent's application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 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: 11 January 2022

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