AT v Commissioner of Police, New South Wales [2010] NSWCA 131
Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75
BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Source
Original judgment source is linked above.
Catchwords
AT v Commissioner of Police, New South Wales [2010] NSWCA 131Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103Gaynor v Burns [2015] NSWCATAP 150Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43IIQ v Delaney Associates Pty Ltd [2011] VCAT2056Murphy v Chief Commissioner of State Revenue [2012] NSWADT 221Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38
This is a costs application arising out of the proceedings and decision in Hamid v Commissioner of Police, New South Wales Police Force (Hamid No. 1) [2018] NSWCATAD 43, which was decided on 16 February 2018.
The applicant Ms Amany Hamid on 17 August 2017 had applied to this tribunal for review under the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) of the decision dated 5 July 2017 by a delegate of the respondent Commissioner affirming the imposition of a firearms prohibition order (FPO) on her pursuant to s 73 of the Firearms Act 1996 (NSW) on 18 May 2017. The tribunal's decision affirmed the respondent's decision imposing the order.
The respondent Commissioner applied orally for an order that the applicant pay the Commissioner's costs thrown away as a consequence of the adjournment of the matter on 6 December 2017 (to 2 February 2018). The respondent made that application on 6 December 2017 and the tribunal's decision on it was reserved.
On 14 March 2018, the tribunal made an order requiring the respondent to file and serve his evidence and submissions in support of his application for costs by 19 March 2018, which was duly done. The respondent's position was that the applicant should pay the costs of the Commissioner incurred by reason of the 6 December 2017 adjournment on an indemnity basis, in the amount of $2204.25, with payment to be made within 28 days.
The applicant was given until 9 April to file and serve her evidence and submissions, but did not file any material. She did not seek an oral hearing. She sought, and was granted, an extension of time to 13 April, but again filed no material. The costs issue was therefore decided on the papers.
[4]
Applicable legislation
The tribunal's power to make costs orders derives from s 60 of the CAT Act:
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.
After 2008, but before the enactment of the CAT Act in 2013, the relevant provision was s 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act) in the following form, which it is useful to note in pertinent part for the purposes of comparison:
88 Costs
(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant.
The issue in this application is whether the tribunal is satisfied that there are special circumstances warranting an award of costs in favour of the respondent. If so, it will then become necessary to decide whether the award should be for indemnity costs rather than party/party costs and whether the respondent's estimate of the appropriate amount for such an award is correct.
[5]
Respondent's evidence
The respondent relied on an affidavit of Lucy Boyle, a solicitor in the Crown Solicitor's Office, dated 16 March 2018. In it Ms Boyle deposed inter alia that at the time of her initial application on 17 August 2017, the applicant was represented by Havas & Dib Lawyers. The s 58 documents were filed and served on 18 September 2017. On 26 September, the matter was listed for directions before Hennessy DP, when the applicant was ordered to file all evidence and submissions by 17 October, the respondent was to file and serve all evidence in reply and submissions by 20 November and the matter was listed for hearing on 6 December 2017 for one day.
On 17 October 2017, the applicant's representative emailed the tribunal requesting an extension of the date for filing the applicant's evidence and submissions because of funding problems. The matter was listed for directions on 25 October, but on 24 October the applicant's representative emailed the tribunal stating that their firm was withdrawing because of continuing funding problems. The deponent stated that neither the applicant nor the applicant's representative appeared at the directions hearing on 25 October 2017, and that on that occasion, Titterton PM ordered that the applicant file any material on which she relied by 8 November 2017. The matter was listed for further directions on 9 November 2017. The respondent's solicitors wrote to the applicant on 26 October informing her of the outcome of the directions hearing.
On 8 November 2017, the applicant's representative wrote to the tribunal confirming inter alia that he had been retained again, and enclosing an unsealed affidavit by the applicant. The deponent believed that both the applicant's representative and the applicant were present at the 9 November directions hearing. At that hearing the tribunal ordered the applicant to file her affidavit on 9 November and her submissions on or before 13 November. The hearing date of 6 December 2017 was also confirmed. The applicant filed and served the affidavit of Amany Hamid on 9 November and her submissions on 13 November.
On 4 December 2017, the applicant's representative wrote to the tribunal seeking an adjournment of the 6 December hearing because of funding concerns and requesting that the matter be relisted the following year. The respondent opposed that application and informed the tribunal that in the event that the adjournment were granted, the Commissioner would seek the costs incurred as a result. On 5 December, Hennessy DP refused the adjournment request.
At 9:12 a.m. on 6 December, the applicant's representative emailed the tribunal seeking to withdraw from the matter and stating that his firm would not be appearing at the hearing on that day. At the 6 December hearing, the applicant appeared by telephone and informed the tribunal that she was stuck before the Anzac Bridge with a flat tyre and requested that the hearing be adjourned. That application was granted and the matter was stood over to 2 February 2018 for hearing, reserving the question of costs. On that occasion Mr El-Hage appeared for the respondent, instructed by Ms Nelson of the Crown Solicitor's Office, and pressed the application for the costs incurred on 6 December.
In my decision in Hamid No. 1, I said at para 24 that:
On 6 December 2017, when the matter was last listed before the tribunal, she [the applicant] had telephoned the registry 5 minutes before the 10:00 am start and said she was stuck before Anzac Bridge with a flat tyre. Mobile telephone records showed, however, that at that time she was in the Homebush Bay area. She admitted that she had lied to the tribunal about her location, but that it was true that she had a flat tyre. But she had lied because she was embarrassed about being unable to raise the funds to have her legal advisers in attendance and felt unable to represent herself before the tribunal because she could not understand the proceedings.
As regards the costs incurred in respect of the abortive 6 December hearing, the deponent stated that Cassandra Nelson of the Crown Solicitor's office attended the hearing for two hours to instruct. As her hourly rate is $269, the costs wasted by the adjournment of the hearing were estimated to be $538. Counsel also spent 5 hours 45 minutes preparing. As he was briefed at $215 an hour, the counsel's fees wasted because of the adjournment were estimated at $1666.25, making a total of $2204.25.
[6]
Respondent's submissions
The respondent on 19 March 2018 filed written submissions setting out the history of the case and the authorities relating to the interpretation of s 60(2), contending that the tribunal should be comfortably satisfied that there were special circumstances warranting an order for costs, and that such costs should be awarded on an indemnity basis. He relied on three main grounds. First, that by the time the matter came on for hearing on 6 December 2017, the tribunal (Hennessy DP) had already rejected an adjournment application by the applicant made on 4 December. That decision was made after the Commissioner informed the tribunal that he opposed the application and would seek costs if the matter were adjourned. In light of the tribunal's ruling, the Commissioner's representatives took steps to prepare for the hearing of the matter and proceeded on the basis that it would be heard on 6 December.
Secondly, the respondent argued that the transcript of the 6 December hearing showed that the tribunal's primary reason for granting the adjournment (despite the earlier refusal) was the applicant's claim that she was stuck before the Anzac Bridge with a flat tyre. Those statements, the respondent argued, were false and clearly made to convince the tribunal to grant the adjournment and needlessly added to costs.
Thirdly, the applicant did not voluntarily admit having lied to the tribunal. After the 6 December hearing, the Commissioner took steps to obtain the applicant's mobile telephone records and a report from Vodafone to establish that the applicant had not told the truth about her location. Consequently, her claim that nevertheless she had indeed been immobilized by a flat tyre could not be believed either. Conduct involving dishonesty was one of the circumstances warranting the award of costs on an indemnity basis: Abughazaleh v Commissioner of Police, New South Wales Police Force: [2018] NSWCATAD 30, [41] - [43].
[7]
Consideration
The tribunal's power to award costs derives from s 60 of the CAT Act. Section 60(1) establishes that the primary position is that each party is to pay its own costs of the proceedings. By s 60(2), however, the tribunal possesses a discretionary power to depart from that general rule: "(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". When exercising that power the tribunal may have regard to the matters expressly identified by s 60(3)(a) to (f) and, by s 60(3)(f), to "any other matter that the Tribunal considers relevant".
The general rule in s 60(1) that parties should bear their own costs is designed to promote access to justice generally and to minimize the overall level of costs in tribunal proceedings as far as is practicable: Stonnington City Council v Blue Emporium Pty Ltd [2004] VCAT 1441, [13]. It has also been observed (by the Victorian tribunal) that -
Generally speaking, I say that it is important that would-be applicants are not deterred from airing genuine grievances and making genuine claims, by the fear that the Tribunal will award costs against them if they lose, particularly if they lose because they have made a legal mistake (IIQ v Delaney Associates Pty Ltd [2011] VCAT 2056, [30] - [31].
See also Murphy v Chief Commissioner of State Revenue [2012] NSWADT 221, [27] - [28]- a decision of mine, but as far as I know it has not been criticized.
The Appeal Panel in Gaynor v Burns [2015] NSWCATAP 150, [18] outlined the process to be followed when applying s 60:
The drafting of s 60(1) evinces the intent of the legislature that generally each party to proceedings in the Tribunal shall be responsible for their own costs. Departure from s 60 (1) may occur but only if the Tribunal finds, there are "special circumstances" warranting it to do so. In determining whether there are special circumstances the Tribunal may, in a structured exercise of discretion, have regard to the criteria in s 60 (3) (a) - (g).
Exercising the s 60(2) discretion is thus a two-stage structured process consisting of:
a consideration of whether or not the tribunal is "satisfied" that there are "special circumstances" in relation to the question of costs; and
if so, whether those special circumstances warrant departing from the general rule and making an award of costs.
As was indicated above, it is important to realize that the test applicable in this tribunal is different from the one that governed its predecessor, the Administrative Decisions Tribunal Act 1997, s 88 (and that test itself was altered in 2008). Before 2008, s 88 incorporated a "special circumstances" test, but the 2008 amendments altered the test to "if it is fair to do so" having regard to the listed matters (Robinson, Fitzgerald, Lucy, NCAT - Practice and Procedure (Thomson Reuters 2015) (NCAT Practice), pp 90-91).
Thus, in AT v Commissioner of Police, New South Wales [2010] NSWCA 131, the Court of Appeal was applying s 88 as it stood after the 2008 amendments. At that time s 88 reiterated the general rule that parties were to bear their own costs, and provided the exception that "the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to" the matters specifically mentioned, including whether a party had conducted the proceedings in a way that unnecessarily disadvantaged another party, such as by "causing an adjournment" or "vexatiously conducting the proceedings". The tribunal could also have regard to "any other matter that the Tribunal considers relevant" (s 88(1A).
After noting (at [26]) that the criterion of fairness was not qualitatively different from the exercise of an unfettered discretion, the court observed that:
Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context (at [33] - my emphasis).
In Gaynor, which applied the current test, the Appeal Panel began by outlining the operation of s 60 in the terms already noted above.
The panel then went on to quote with approval from Santow JA's judgment in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 where his Honour concluded that the tribunal had erred by failing to find special circumstances:
60 It is not necessary to determine whether in the circumstances the appellant committed equitable fraud. In my view it suffices that the conduct of Cripps and Jones, in relying upon their status as the registered proprietors of the freehold and the doctrine of indefeasibility of title to wrongly deny registration and consequently assignment of the lease, so acted as by their conduct to give rise to special circumstances; that is, circumstances that were clearly out of the ordinary and grossly unreasonable so far as the respondent tenant was concerned. On the one hand, the Tribunal correctly concluded that the respondent, through no fault of its own, has been placed in the situation where it has been forced to pursue this litigation. Yet it still failed to find special circumstances. With respect, I consider that the Tribunal was in error in failing to conclude that special circumstances here applied. For this purpose, it suffices that the circumstances are out of the ordinary. They 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.
[8]
Order
1. The respondent's application for costs is refused.
[9]
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: 27 April 2018
Parties
Applicant/Plaintiff:
Hamid
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
It will be noted that his Honour found the appellants' conduct to be "out of the ordinary and grossly unreasonable" and that it had forced the respondent to pursue litigation that was wholly improper and unmeritorious. And while a finding of "serious unfairness" was not a prerequisite for finding special circumstances, it was "a highly relevant consideration". His Honour was thus applying a more stringent standard than had been used in AT v Commissioner, where the court had found that the criterion of fairness in s 88 as it then stood constituted a "relatively low hurdle" and was not qualitatively different from the exercise of an unfettered discretion.
The Appeal Panel also has noted that the "special circumstances" exception to the general rule in s 60(1) is narrower than the "fair to do so" exception in the former s 88(1A): Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, [78]; (see also NCAT Practice, p 92).
Besides requiring special circumstances, s 60(2) provides a more limited list of factors to which the tribunal can have regard than s 88(1A) as it stood at the time of AT. Under s 60(2), consideration may be given to seven classes of circumstances, such as whether a party has been responsible for prolonging unreasonably the time taken by the proceedings, but includes no reference to unnecessary adjournments. Section 88(2), however, allowed 11 types of circumstances to be taken into account, including, specifically, "causing an adjournment".
In the context of s 60(2), the Appeal Panel has stated that the words "'special circumstances' mean something out of the ordinary, which invites an examination of the particular circumstances of the proceedings under consideration and a comparison with what might be characterised as 'ordinary circumstances'": Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75, [13]. Once it is satisfied that there are special circumstances, the tribunal must further be satisfied that they are circumstances "warranting an award of costs": Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103. The exercise of the discretion requires the tribunal "to weigh whether those circumstances [identified by the invoking party] are sufficient to amount to "special" circumstances that justify departing from the general rule that each party bear their own costs": BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87, [9].
The first ground relied on by the respondent in support of his submission that there are "special circumstances" was the fact that the tribunal (Hennessy DP) had already refused an adjournment application by the applicant on 5 December, the day before the matter was listed for hearing. I do not have a copy of her Honour's reasons for dismissing the application, or a transcript of those proceedings.
Nevertheless, it is clear that the applicant's circumstances changed materially between the two hearings. The email from her solicitor, Ms Lucy Ferguson, dated 4 December shows that on that date the applicant was still professionally represented. But by 6 December, as the email from Ms Rose Evers, law clerk, of that date shows, the applicant's legal representatives had withdrawn from the matter. That last-minute change of circumstances was plainly relevant to the question of whether an adjournment was appropriate.
The respondent's second argument was that the primary ground for the grant of the adjournment appearing in the reasons for decision in Hamid No. 1 was the applicant's claim over the telephone that she was stuck before the Anzac Bridge with a flat tyre. But she had admitted that she had lied about her location and was in fact in the Homebush Bay area at the time. She still maintained that her car had suffered a flat tyre, but that assertion could not be accepted in light of her false claim about her location.
The primary ground for the grant of the adjournment was clearly as stated by the respondent. The tribunal did not, however, have the benefit of any submissions based on the true facts (viz.,that she was actually at Homebush Bay and might or might not have had a flat tyre), and of course it was not incumbent on the respondent to advance any such submissions in the circumstances. Nevertheless, the applicant might have had a case for an adjournment even if she had told the whole truth. She had apparently lost her legal representation the day before, or perhaps the day of, the scheduled hearing. She said she was embarrassed by her inability to fund her legal representation and believed she would be unable to appear in person because she would be unable to understand the proceedings.
She was also under the impression, apparently on the basis of legal advice she had received, that if an FPO were made against her, it would be legally irrevocable and she would be subject to warrantless police searches at any time of the day or night for the rest of her life, with adverse consequences for her young child's welfare and her own employment prospects. In my decision I found that legal proposition to be mistaken, but the respondent had not challenged it and the prospect must have placed the applicant in a state of high anxiety in relation to the proceedings. In those conditions, although the applicant should have told the whole truth, it is somewhat understandable that she succumbed to panic and resorted to (unsworn) falsehood in an attempt to extricate herself from her predicament.
While a misstatement of that kind would have been a serious matter indeed if made by a legal practitioner, or if it had been made in sworn evidence, it takes on a somewhat different aspect coming from an unrepresented lay applicant in what she believed to be a dire and insoluble situation. The kind and degree of dishonesty involved are of a quite different order from that in, for example, Cripps.
Of the matters listed in s 60(3) to which the tribunal may have regard in determining whether there are special circumstances, a relevant one is s 60(3)(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".
Hamid No. 1 dealt with the Commissioner's power to issue FPOs under s 73 of the Firearms Act. As there did not appear to be any decided cases dealing with that provision, it was a case of first impression. The issue was whether the applicant was "not fit, in the public interest, to have possession of a firearm" within the meaning of s 73(1).
The applicant has no criminal history and has not been charged with any offence. She has never been interviewed, cautioned, or her details recorded in relation to any offence or investigation involving a firearm. She has never applied for a firearms licence. She declares that she has no intention of, or any interest in, doing so or in having anything to do with firearms, not least out of concern for the safety of her young daughter, and there is no evidence to contradict her.
In those circumstances the respondent's case that she should be subject to an FPO was testing the boundaries of s 73. It rested on her successive associations with two men who had criminal records and FPOs against them. On the basis of the open and confidential evidence and submissions, the matter was decided in favour of the respondent, but neither side had made a claim having "no tenable basis in fact or law" and the relative strengths of the claims made by each of the parties must be regarded as rather well matched.
A matter that may be considered relevant pursuant to s 60(3)(g) is the applicant's ability to meet an award of costs against her. There is not a great deal of evidence about her financial position, but it is known that she is an unemployed single mother who was unable to muster the funds to pay her own lawyer's fees in these proceedings. Requiring her to pay costs in the region of $2200 would probably cause her some difficulty or hardship. Also relevant is the tribunal's "guiding principle" in s 36(1) whereby it is required to facilitate, inter alia, the low-cost resolution of the issues in the proceedings.
Taking all the above considerations together, I find that there are not special circumstances warranting an award of costs within the meaning of s 60(2). It is therefore unnecessary to decide whether a costs award should be on an indemnity basis or a party/party basis.
The outcome might have been different if the tribunal had been required to apply the "fair to do so" test in the former s 88(1A), given that the applicant behaved improperly in relation to the 6 December adjournment and thereby put the respondent (and the taxpayer) to unnecessary expense. But I am not satisfied that special circumstances under s 60(2) warranting an order for costs have been shown.