Farooq v Commissioner of Police, NSW Police Force (No 2)

Category: Costs

Parties: Umer Farooq (Plaintiff)
Commissioner of Police, NSW Police Force (First Defendant)
Security Licensing & Enforcement Directorate (Second Defendant)

Representation: Counsel:
A Hammond (First Defendant)
Solicitors:
Lander & Rogers (First Defendant)

File Number(s): 2025/321627

Publication restriction: Nil

JUDGMENT

1. In December 2025, on the Commissioner’s motion, I made orders dismissing Mr Farooq’s summons. Thereby he sought to challenge a decision to revoke his security licence, which he had not only unsuccessfully challenged by a review application before NCAT, but had also appealed, but discontinued, his appeal. I was satisfied that the result was that these proceedings were misconceived and had no prospect of success, as the Commissioner contended: Farooq v Commissioner of Police, NSW Police Force [2025] NSWSC 1486.

2. This judgment deals with the disputed question of the resulting appropriate costs order. Mr Farooq, who is unrepresented, having been given the further time which he sought to put on his submissions, he having unsuccessfully pursued pro bono legal assistance.

3. The Commissioner seeks that the usual order be made against Mr Farooq, which he opposes. He contending that the Court should either order that there be no order for costs, or that each party bear their own costs.

4. There is no issue about the Court’s discretion to make such an order, but the Commissioner opposed its exercise in Mr Farooq’s favour: Civil Procedure Act 2005 (NSW), s 98 and Uniform Civil Procedure Rules 2005 (NSW), r 42.

5. Mr Farooq relied on a March 2026 affidavit to which he annexed email communications with the Registrar about his fee waiver applications, as well as 2020 emails concerning a complaint he had made about a training course in which he had been enrolled. It does not establish his financial circumstances.

6. Mr Farooq relied on Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67], where a consideration of the public interest resulted in a trial judge’s decision not to award costs against the unsuccessful party, which was upheld. His case being that his complaint in this Court had concerned the lawfulness of administrative decision-making which had affected his professional licence and livelihood, in which there was a public interest. That, together with his severe financial hardship and the disproportionate consequences of the usual costs order, warranting the exercise of the Court’s discretion to depart from the usual costs order.

7. There being no basis for a finding that his conduct of the litigation had been unreasonable. Consideration of all the relevant circumstances, as well as proportionality, reasonableness and fairness, supporting the making of the orders which he sought. He having been honest throughout the proceedings before NCAT and this Court, he not having been aware of security license requirements which bound him.

8. I am satisfied that Mr Farooq’s case cannot justly succeed.

9. Costs orders are made not to punish an unsuccessful litigant, but to indemnify the successful party against the expense incurred: Latoudis v Casey (1990) 170 CLR 534 at 543 (Mason CJ); [1990] HCA 59. What costs order should be made primarily flowing from a consideration of the successful party’s position: at 542.

10. In this case the Commissioner was wholly successful. Mr Farooq’s summons having been dismissed in circumstances where the parties remained bound by the NCAT decision which dismissed Mr Farooq’s review application of the decision to revoke his security licence, in circumstances explained in the December judgment. He having discontinued his NCAT appeal against that decision, having decided to pursue these proceedings instead.

11. To resist Mr Farooq’s proposed costs order, the Commissioner relied on it having emerged at the hearing of the motion that he had prepared his submissions with the assistance of AI. That having resulted in unnecessary costs being incurred, the Commissioner having to resist a case pressed on cases and documents Mr Farooq had quoted, which did not exist and also on authorities which did not stand for the propositions he advanced.

12. The Commissioner also contended that unlike Oshlack, Mr Farooq’s misconceived summons raised no matters of public interest. While financial hardship could be considered, it rarely provided a basis for an order against a successful party. In this case Mr Farooq having abandoned his appeal in NCAT, ordinarily a no costs jurisdiction and then having resisted the Commissioner’s dismissal motion, despite he having been put on notice of why the Court could not grant the relief he wished to pursue, there was no just basis for the order he sought to be made.

13. I am satisfied that the case Mr Farooq advanced cannot justly be accepted. He has not put on evidence to establish his real financial circumstances, as was explained at the directions hearing was necessary, if he was to rely on those circumstances. It follows that his submissions about the likely adverse consequences of a costs order have no evidentiary basis. The Court not being able, justly, to act on submissions alone.

14. It must also be accepted that there was no public interest in Mr Farooq’s misconceived summons and that costs were unnecessarily increased because of the use which he made of AI. While that was understandable, given that he was unrepresented, he was still responsible for ensuring that the submissions which he advanced were accurate.

15. Given what he did advance, it has to be accepted that the Commissioner did incur unnecessary costs in having to resist a case which simply had no basis. In all of those circumstances, it must be found that there is no just basis for any departure from the usual costs order.

Orders

16. For these reasons I order that Mr Farooq pay the Commissioner’s costs, as agreed or assessed.