Edwards v Commissioner for Fair Trading, Department of Customer Service

Relevant principles

1. The starting point is that s 60(1) of the NCAT Act provides that each party is to bear its own costs. Section 60(2) provides the Tribunal with discretion to award costs if it is satisfied that there are special circumstances warranting such an order. In deciding whether there are special circumstances, the Tribunal may have regard to the factors in s 60(3), which reads as follows: (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.
2. Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary. These principles are well established and have been consistently applied in this Tribunal: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
3. A party's success on appeal is relevant to the question of costs, although it is not determinative: Hammond v Ozzy Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65. The Tribunal's discretion to award costs must be exercised judicially and not capriciously: Oshlack v Richmond River City Council (1998) 193 CLR 72 at 81; eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [37].
4. The "proceedings" that are the subject of the application for an award of costs, and thus the focus of our consideration as to whether there are special circumstances warranting such an order, are the proceedings commenced when the appellant lodged his Notice of Appeal on 1 February 2019: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [37]. The Appeal Panel is not determining whether an award of costs could or should be made in relation to the proceedings determined by the Senior Member in the Occupational Division.

Submissions and consideration

1. Both parties' submissions primarily address the respondent's failure to produce the documents to the Tribunal at first instance as the basis for any award for costs.
2. In his submissions dated 29 August 2019 and his further submissions from 11 September 2019, the appellant argues the respondent 'picked and chose' what it produced to the Tribunal at first instance. He appears to suggest that the respondent selectively withhold particular documents, rejecting any suggestion by the respondent that the failure to produce the two documents which came to light at the appeal hearing (as described above at [3]) was a simple mistake or oversight on its part. The appellant then argues that these documents are significant and go to the core of the Tribunal's proceedings, being (in the words of the appellant) the wrongful denial of a contractor licence to the appellant.
3. The respondent rejects any assertion that either of the documents were deliberately withheld from the Tribunal. There was no evidence before the Appeal Panel as to the reasons for the respondent's failure to produce the documents to the Tribunal, nor evidence as to the respondent's internal processes when preparing bundles of documents required to be lodged with the Tribunal under s 58 of the ADR Act. The Appeal Panel is not in a position to make findings on the question of the reasons for the respondent's failure to produce. For that reason, we are not in a position to address the submissions of either party on this issue, and we will have no further regard to submissions on this point in this costs decision.
4. The respondent contends in its submissions that, because the failure to produce was a simple administrative error and not the product of unreasonable behaviour or impropriety on its part, it cannot be considered out of the ordinary. The respondent relies on what was said by Santow JA (with whom Mason P and Brownie JA agreed) in Cripps v Dawson [2006] NSWCA 81 at [55] and [60]: [55] While determination of costs is a discretionary matter and moreover a matter of practice and procedure, as the Tribunal itself recognised, unreasonable conduct that is out of the ordinary and conduct which is grossly unreasonable can attract exercise of the Tribunal's power under s 88 to award costs. … [60] … [those circumstances]…do not have to be extraordinary or exceptional. While a finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.
5. We do not accept that submission. The failure to comply fully with s 58 of the ADR Act was an error on the respondent's part. That put the Tribunal at first instance in a position where it had to make the "correct and preferable" decision in its administrative review jurisdiction without being furnished with all relevant evidence. Those circumstances are clearly out of the ordinary. It does not follow from what was said in Cripps v Dawson [2006] NSWCA 81 at [55] and [60] that circumstances may only be considered out of the ordinary if there is 'unreasonable' or 'grossly unreasonable' behaviour, in the sense of some deliberate or wilful course of conduct. What the Court of Appeal was dealing with in that case was whether clearly unreasonable conduct in those particular circumstances was sufficient to consider the circumstances as extraordinary.
6. A narrower interpretation, which the respondent appears to be arguing for, would unduly fetter the discretion of the Tribunal to award costs and would be inconsistent with the terms of s 60 of the NCAT Act. Clearly, whether conduct has been deliberate or not can be a factor to consider under s 60(3) of the NCAT Act. However in these circumstances, as we have said above, we are not in a position to consider whether the respondent deliberately withheld the two documents (or other potentially relevant documents in its possession or under its control), and we do not consider that we need to do so in order to dispose of the costs issue in this appeal.
7. In its submissions, the respondent chose to deal separately with each of the two documents in question. On the first document, the 'Minute Sheet', the respondent contends it was not relevant to the respondent's initial administrative decision and is not informative of that decision in any respect. It says that all the document does is show the internal movements of the file in 2013.
8. The respondent concedes that the second document, entitled 'Assessment sheet - Further Information', was relevant. However, it contends that the information in the document was put before the Tribunal at first instance and had been considered by the appellant's solicitor. It did however concede that the following text in that document, under the second sub-heading 'The following additional information was received', was not included in the original production to the Tribunal: Received final police report. No other convictions within the last ten years-NFA [(no further action)] required'.
9. This "additional information" is of clear and obvious relevance to the proceedings before the Tribunal below.
10. The Respondent goes on to contend that this information would not have assisted the appellant. At [24] of its submissions it said: Had this information been disclosed it would not have assisted the Appellant in his argument that he is a fit and proper person to hold a contractor's licence in the category of electrical wiring. It noted that no other convictions were disclosed within the last 10 years. It is clear that the Appellant had convictions and that's why a National Police Check was requested on 5 July 2013. This issuing of a licence in 2013 prior to receipt of a National Police Check was simply an error made by the Assessing Officer. The final police report was from NSW police.
11. When considering an application for costs of an appeal, the Appeal Panel is not required to reconsider the merits of a Tribunal's substantive decision at first instance: BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [28]. In that same vein, the task for this Appeal Panel on this occasion is not to examine forensically the probity or weight that should be given to the documents and consider what a Tribunal at first instance would have done. That would be a matter for a newly constituted Tribunal at first instance in accordance with order (3) of the Appeal Panel, when determining what is the correct and preferable decision on administrative review as required by s 63 of the ADR Act. In that regard, the Appeal Panel notes that since the determination of the appeal, the appellant has been issued with a licence and withdrawn the application for administrative review.
12. What is relevant for this Panel is the merit of the appeal and the application for leave to appeal: Sahade v Owners SP 62022 [2015] NSWCATAP 225 at [30]; BPU v NSW Trustee and Guardian (Costs) [2016] NSWCATAP 87 at [28].
13. The fact is that the Appeal Panel, in its decision dated 15 August 2019, formed a view that the 2 documents not produced by the respondent were relevant to the proceedings at first instance. At [39]-[41] of the reasons, the Panel said: [39] The new evidence comprises documents that form part of the internal Fair Trading files relating to the appellant's contractor licence applications in 2013 and 2017. The documents indicate that, on 5 July 2013, there was additional information required by the respondent, and on 19 July 2013, there was a "reassessment" following receipt of additional information with the handwritten notation "Received final police report. No offence committed within last 10 yrs. NFA [no further action] required." [40] These documents are of potential relevance to the knowledge of, and conduct of, both Fair Trading officers and the appellant in respect of his licence applications in 2013 and in 2017, and to communications between those parties. The Tribunal made findings on the appellant's credibility and integrity, and such findings were based (at least in part) on communications between the parties in 2013 and the reasons as to why the appellant failed to forward a copy of the National Police Certificate he obtained to the respondent in 2013 (or later). The new evidence is both relevant, and material, to these issues. Moreover, and without speculating on whether this is likely to be the case, it is possible that there are further s 58 documents in the possession of, or under the control of, the respondent that remain to be disclosed to the Tribunal.
14. At the hearing of the appeal, the respondent also conceded that the documents were relevant and that they should have been produced to the Tribunal. Section 58(1)(b) of the ADR Act required the respondent to provide a copy of any document in its possession or under its control which it considered relevant to the determination of the application by the Tribunal. As is clear from the decision of the Tribunal at first instance, the appellant's failure to disclose his convictions was an important basis for the Tribunal's findings on the appellant's credit and integrity. Those findings were clearly key bases for the ultimate decision of the Tribunal. Determining an application for costs is not a forum to take another look at whether the documents should have been considered relevant or the degree of that relevance.
15. The respondent's failure to produce documents resulted in an injustice for the Appellant. As the Appeal Panel said in its reasons at [41], this failure to produce deprived the Appellant of opportunities that someone in this Tribunal at a minimum should expect, namely to address the evidence, to cross examine Fair Trading officers on it, and to ultimately make submissions about the evidence. Again, we are not concerned with the question as to whether, had the evidence been before the Tribunal at first instance, a different conclusion would definitely have been reached. The fact is that the evidence was relevant, an injustice was suffered, the Appeal Panel considered that injustice to be significant, and that injustice resulted from the respondent's conduct. In that respect, the appeal and application for leave to appeal was with merit and wholly successful. The special circumstances arise not simply because the appeal was successful, but because of the injustice that was required to be addressed on appeal.
16. For these reasons, we consider that there are special circumstances for an award of costs in the Appellant's favour.
17. By way of final comment, we wish to address the respondent's contention, at [29] of its submissions, that "there was nothing in the conduct of the appeal proceedings or the proceedings below that was out of the ordinary". We do not accept this submission. Failure to produce documents required by law to be lodged with the Tribunal must surely be conduct of the respondent that is "out of the ordinary". The bringing of an appeal was necessary for the appellant to achieve justice in this matter - the justice to which we refer is that of ensuring that the administrative review application brought by Mr Edwards to the Tribunal at first instance, and thereafter to the Appeal Panel by way of internal NCAT appeal, could be dealt with on the basis of the Tribunal having all relevant evidence before it. Issues cannot be properly ventilated unless the Tribunal is provided with material which the respondent is obliged to produce under s 58 of the ADR Act. Respondents should bear in mind the Tribunal's statutory obligations, including that contained in s 38(6)(a) of the NCAT Act pursuant to which the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings. All parties, and their representatives, have an obligation under s 36(3) of the NCAT Act to co-operate with the Tribunal to give effect to the guiding principle stated in s 36(1). As the Appeal Panel made clear in its decision of 15 August 2019 (see eg [16]), the Tribunal must be given assistance by respondents, including through diligent and thorough compliance with the obligations under s 58 of the ADR Act.

Conclusion

1. For these reasons, the Appeal Panel is satisfied that there are special circumstances warranting an order for costs of the appeal. Section 60(4)(b) of the NCAT Act provides that the Tribunal may order costs to be assessed on the basis set out in the legal costs legislation, or on any other basis. In his submissions on costs the appellant had provided invoices to substantiate his claim, including costs incurred in the first instance proceedings.
2. The Appeal Panel requested evidence from the appellant to substantiate the amount claimed for expenses in respect of the appeal, including provision of itemised invoices, in the event that the decision was that an order for costs should be made. The invoices provided by the appellant in response confirm that his legal costs and disbursements of the appeal were $4,420.68 inclusive of GST. The Respondent did not take issue with the quantum of costs, while maintaining its position that there were not special circumstances that warrant the award of costs.
3. The Appeal Panel is of the view that it is preferable that a fixed sum costs order be made so that the parties avoid the expense, and inconvenience, of having costs assessed (by an external costs assessor) in default of agreement. The amount claimed is substantiated, and not disputed by the Respondent. An order for payment of the amount of $4,420.68 should be made
4. In making an order for costs of the appeal, the Appeal Panel notes, as indicated to the parties in the correspondence after the hearing, that the Appeal Panel cannot award costs in respect of the Tribunal proceedings below, and a separate application would need to be made by Mr Edwards to the Tribunal in that respect.
5. Orders 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing of the application in respect of costs is dispensed with. 2. The Respondent is to pay the appellant's costs of this appeal fixed in an amount of $4420.68 inclusive of GST. 3. The name of the respondent is changed to Commissioner for Fair Trading, Department of Customer Service.

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 October 2019