Joliffe v Commissioner of Police, NSW Police

REASONS FOR DECISION Background 1 On 12 March 2003 Mr Joliffe lodged an application with the Tribunal for review of a decision made by the Commissioner of Police ("the Commissioner"). That decision, made on 10 February 2003, was to revoke Mr Joliffe's Security licence under section 26(IA) of the Security Industry Act 1997 ("the Security Industry Act"). The matter was listed before me in relation to the preliminary issue of whether a company of which Mr Joliffe is a director, Commercial Surveillance Pty Ltd, has been "convicted" of an offence prescribed by clause 11(f) of the Security Industry Regulation 1998. 2 I found that Commercial Surveillance Pty Ltd has been so "convicted". My reasons for decision are reported as Joliffe v Commissioner of Police, New South Wales Police Service [2003] NSWADT 159. Mr Joliffe successfully appealed my decision and the Appeal Panel decision is reported as Joliffe v Commissioner of Police, New South Wales Police Service (GD) [2003] NSWADTAP 58. The Appeal Panel set aside the Commissioner's decision to revoke Mr Joliffe's Master Security Licence. The facts are adequately covered in the reported decisions and it serves no purpose to repeat them here. The Appeal Panel stated at paragraphs 62 - 64: "62 To sum up, therefore, we are satisfied that there is clear authority (emerging from a previously confused line of cases) to the effect that proceedings under the particular provision of industrial relations legislation with which we are concerned s 178 of the Workplace Relations Act 1996 (Cth) are not proceedings for a criminal offence, traditionally so-called, and do not lead to convictions, traditionally so-called. The provisions within security industry legislation that are relevant to this case s 16(1) of the Security Industry Act 1997 and subclause 11(f) of the Regulation made under this Act use these same two terms in conjunction to define the range of proceedings to which they relate. The meaning of these terms, in this particular context, should not be extended beyond their traditional meanings. It follows that proceedings under s 178 do not fall within s 16(1) of the Act or subclause 11(f) of the Regulation. 63 For these reasons, the appeal must be allowed. 64 The only ground on which the Appellant s Master Security Licence was revoked by the Commissioner was that the Chief Industrial Magistrate s determinations that Commercial Surveillance (of which the Appellant was a director) had contravened s 178(1) of Workplace Relations Act 1996 (Cth) brought him within the scope of s 16(1)(a) or (b) of the Act and therefore exposed him to revocation of his Licence under s 26(1)(a). Our decision renders this ground of revocation invalid. The Commissioner s decision to revoke the Appellant s Licence must therefore be set aside." 3 Following the Appeal Panel decision, the matter came back before me on 12 December 2003 and at that time Mr Joliffe made an application for costs. I set a timetable for the filing of submissions on the issue and the matter was listed for hearing on 10 February 2004. The matter proceeded on that day and I reserved my decision. Legislative provisions 4 Section 88 of Administrative Decisions Tribunal Act 1997 ("the ADT Act") sets out the Tribunal's powers in relation to costs. Section 88 provides: "88 Costs (1) 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 there are special circumstances warranting an award of costs. (2) 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 Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application." 5 Section 16 of the Security Industry Act provides for restrictions on the granting of licences in the following terms: "16 Restrictions on granting licence - criminal and other related history (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or (b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or (c) has, within the period of 10 years before the application for the licence was made, been removed or dismissed from the Police Service of New South Wales or from the Police Force of any other jurisdiction (whether in Australia or overseas). (2) However, if the applicant concerned has been so removed from the Police Service of New South Wales by the Commissioner under section 181D of the Police Service Act 1990 on grounds other than the applicant's integrity as a police officer, the removal of the applicant in those circumstances is a discretionary ground for refusing the granting of the application for a licence. (3) The Commissioner must refuse to grant an application for a licence if the Commissioner is of the opinion that the applicant is not suitable to hold a licence because the applicant has been involved in corrupt conduct. (4) The Commissioner must refuse to grant an application for a master licence if the Commissioner is of the opinion that the applicant (or, if the applicant is a corporation, any person who is a director or who is concerned in the management of the corporation) has, within the period of 5 years before the application was made, been declared bankrupt. (5) A reference in subsection (1), (2) or (3) to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant." 6 Section 26 of the Security Industry Act provides that the Commissioner may revoke a licence under certain circumstances. Insofar as is relevant section 26 provides: "26 Revocation of licence (1) A licence may be revoked: … (b) if the licensee: … (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (d) for any other reason prescribed by the regulations. (1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused." 7 Clause 11(f) of the Security Industry Regulation provides: 11 Offences that disqualify applicants: section 16 For the purposes of section 16(1)(a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: … (f) Offences involving industrial relations matters In the case of an application for a master licence only - an offence under the Industrial Relations Act 1996, including the contravention of a State industrial instrument, or under any similar law of any other Australian jurisdiction, but only if a total of at least 5 such offences have been committed by the applicant during any period of 2 years." 8 Section 178(1) of the Workplace Relations Act 1996 provides: "Imposition and recovery of penalties (1) Where an organisation or person bound by an award, an order of the Commission (whether under this Act, the Registration and Accountability of Organisations Schedule or otherwise) or a certified agreement breaches a term of the award, order or agreement, a penalty may be imposed by the Court or by a court of competent jurisdiction." Mr Joliffe's case 9 Mr Joliffe's case is that the Tribunal may award costs in relation to proceedings before it if it is satisfied that there are special circumstances warranting an award of costs. Mr Joliffe referred to various authorities, which consider the approach to be taken by the Tribunal in considering the issue of costs, and argues that in this matter there are special circumstances warranting such an award. 10 On the issue of what may constitute "special circumstances" Mr Joliffe submits that the authorities provide examples of circumstances in particular situations which may be out of the usual course, which may warrant an award of costs. The authorities also indicate that success in a proceeding is not itself a special circumstance. Furthermore, the authorities state that the costs power afforded by Section 88(l) of the Act should not be used as a sanction to reprove allegedly unreasonable conduct by a government agency which has given a citizen no other option but to apply to the Tribunal for relief, and in so doing incurring professional costs. 11 Mr Joliffe referred to the decision in Brooks Maher -v- Cheung [2001] NSW ADT 18 where the Tribunal reviewed various authorities from both the Tribunal and other jurisdictions. Mr Joliffe submits that the decision gives a useful summary of the entitlement to costs under section 88 of the Act. The Tribunal found that they were satisfied that the plain meaning of "special circumstances" in section 88 of the ADT Act is circumstances which are out of the ordinary, without having to be extraordinary or exceptional. The Tribunal went on to say that special circumstances alone are not sufficient but under section 88 (1) the special circumstances must warrant an award of costs. Mr Joliffe also notes the comments of the Tribunal in this decision to the effect that the circumstances, which would or would not warrant an award of costs, cannot be exhaustively listed. The Tribunal stated at paragraphs 11 - 14: "The legislature has given a clear indication that the Tribunal is not to apply the usual approach to an unfettered discretion to award costs in judicial proceedings, ie that the successful party can expect to enjoy the benefit of a costs order. Something more than success is needed to warrant an order, whether the successful party is a citizen challenging an administrative decision or an administrative agency resisting such a challenge. 12 Special is given 17 meanings in the Macquarie Dictionary, Third edition, The Macquarie Library. One meaning is distinguished or different from what is ordinary: a special occasion. Another meaning is extraordinary; exceptional; exceptional in amount or degree especial: special importance. In interpreting the term special circumstances in a different context, the Federal Court in Holpitt Pty Ltd v Varimu Pty Ltd & Others (1991) 103 ALR 684 preferred the former definition: In my opinion, the court's duty in an application of this kind is to consider whether the applicant has shown some circumstances which takes the matter out of the ordinary course... 13 The application in that case related to whether the court should exercise its discretion to have documents produced in one set of proceedings, available for use in other proceedings. 14 We are satisfied that the plain meaning of special circumstances is circumstances which are out of the ordinary, without having to be extraordinary or exceptional. But special circumstances alone are not sufficient. Under s 88(1), the special circumstances must warrant an award of costs. The circumstances which would or would not warrant an award of costs cannot be exhaustively listed. However where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted." 12 Mr Joliffe further notes that in the matter of Expile Pty Ltd v Jabb's Excavations Pty Ltd [2002] NSWSC 851, a decision relating to an extension of time for the granting of relief under the Corporations Law, Hamilton J. noted at paragraph 6 of the judgment that: "The other thing that may be said about the meaning of the words "special circumstances" in this context is that there should be no exhaustive attempt to define or list the matters which may come within the rubric "special circumstances" as used here. … The discretion is a discretion to be exercised by the Judge on the view that he or she takes of all the circumstances of each case. Having said that, I should emphasise that one feature of s 459R(2) is that an order may only be made under the subsection if the Court is satisfied that special circumstances exist and justify the extension. If no special circumstances exist, then that is an end of the matter. If there is nothing that can be characterised as special circumstances, the discretion cannot be exercised. If, however, special circumstances are found to exist, that does not compel or even necessarily authorise the exercise of the discretion. Those special circumstances must be found to justify the extension and whether or not an extension is granted is still within the general discretion of the Court, as emphasised by the word "may", which is the third word in s 459R(2). " 13 Mr Joliffe also referred to the following authorities. In Citadin Pty Ltd (No. 2)-v-Eddie Azzi Australia Pty Ltd and General Pants Co. Pty Ltd [2001] NSW ADTAP 31 (6 September 2001), an application in the retail leases division of the Tribunal, the Tribunal referred to section 109 of the Victorian Civil and Administrative Tribunal Act 1997 ("the VCAT Act") as providing a list of factors that might constitute special circumstances. At paragraph 6 of the decision the Appeal Panel stated: "6 The usual rule in the Tribunal is that parties bear their own costs of proceedings. Being successful in proceedings is not in itself a special circumstance. There must be some additional factor or factors present in the case to justify an award of costs." 14 In Raethel -v- the Director General Department of Education and Training [2000] NSWADT 56 the President of the Tribunal considered that it would be an error to use the power to award costs for punitive purposes rather than for compensatory purposes. His Honour also indicated that the power to award costs should not be used as a sanction for poor administration by a government agency in steps taken by it leading up to the commencement of proceedings. At paragraphs 56, 57, 58 & 59 of decision the President stated: "Boundaries on Use of Costs Power 56 In this case the applicant proceeded in the usual way, and dealt directly with the agency. The agency dealt with her in a way, which she regards, as highly unsatisfactory. The applicant s submissions seek to use the costs power as a sanction for poor administration. 57 To use the costs power as some kind of sanction to punish agencies for poor administration would, I consider, involve the error condemned frequently by the courts of using the costs sanction for punitive rather than compensatory purposes: Latoudis v Casey (1990) 170 CLR 534 at 542-3 per Mason CJ; and at 567 per McHugh J. The oversight body for bad administration in government is the Ombudsman s office. This Tribunal only becomes involved in the issue of bad administration to the extent that statutory procedures pertinent to an application may not have been observed. 58 If submissions of the kind made in this case were to be entertained the potential would exist for a costs application to provide the basis for a general inquiry into the way in which the agency dealt with the applicant. In this case, for example, the submissions on behalf of the applicant traversed some requests that at the end of the day did not give rise to an application for review in the Tribunal. 59 It would involve an unreasonable diversion of the Tribunal s limited resources for it to be called upon to look so broadly at the background to an application including matters not providing any foundation for the application." 15 In Charteris -v- General Manager, Leichhardt Municipal Council (2) (GD) [2001] NSW ADTAP 39 (29 November 2001), the Appeal Panel expressed caution in relation to allowing a costs application to become a vehicle for a general review of the conduct of an agency against an application. Although the Tribunal made these observations, it noted that there might be circumstances where it will be appropriate for the Tribunal to have regard to the pre-litigation conduct of the parties. At paragraphs 22 - 26 of the decision the Appeal Panel stated: "22 This is not the first time that an aggrieved applicant has sought to have the Tribunal focus on the pre-litigation conduct of the agency in dealing with the matter before it reached the Tribunal. We reiterate the view expressed by the President sitting at first instance that caution must be observed in allowing costs applications to become a vehicle for the general scrutiny of the conduct of one of the parties prior to the commencement of the litigation: Raethel v Director-General, Department of Education and Training [2000] NSWADT 56. 23 The appellant referred to Raethel. The difference between the application in that case and the one made on this occasion, according to counsel for the appellant, was that Raethel involved allegations of obstructionist behaviour rather than outright instances of non-compliance with statutory requirements. We do not regard that as a crucial distinction, and, as previously stated, are satisfied that the Tribunal had regard to the appellant s submissions as to the degree of non-compliance. 24 We are satisfied from scrutiny of the transcript below and the reasons for decision that the Tribunal did take proper account of these submissions, and simply engaged in the usual weighing exercise. The Tribunal s generalised reference to non-compliance with s 28 forms part of a wider discussion as to conduct of both parties. 25 It is not necessary that the Tribunal undertake a didactic, itemised examination of each of the concerns raised by one party as to the conduct of the other party. It is plain that the Tribunal thought that an important factor militating against the force of the appellant s concerns was that he met with little success in his application. It was not therefore a case of an agency unreasonably relying on an exemption and unfairly forcing the applicant to litigate to establish his or her claims. 26 On the other hand, as acknowledged in Raethel and in the decision under appeal, there may be circumstances where it is appropriate to have regard to the pre-litigation conduct of one of the parties." 16 Mr Joliffe also referred to the decisions of Department of Education and Training -v- Simpson [2001] NSW ADTAP6 and Tu v University of Sydney [2002] NSW ADTAP 25. Those matters concerned applications where costs orders were made in circumstances where the parties had engaged in unreasonable conduct in the application. Mr Joliffe submits that these cases are only of minor assistance to the Tribunal in determining whether or not special circumstances exist so as to warrant an award of costs in this application. Mr Joliffe does not allege that the Commissioner has engaged in conduct of the type referred to in these decisions. 17 Mr Joliffe puts forward the following matters as "special circumstances" warranting an award of costs under section 88 (1) of the ADT Act: a) The decision made by the Security Industry Registry, as the Commissioner's delegate, to revoke the master licence held by Mr Joliffe on grounds that Mr Joliffe had been convicted of an Industrial Relations Offence under Clause l1 (f) of the Security Industry Regulation was found to be invalid, in circumstances where the effect of the decision was to render Mr Joliffe unable to continue to work in the Security Industry, a vocation which he had enjoyed since approximately 1979. b) The fact that it was also necessary for Mr Joliffe to bring the proceedings in the Tribunal if he was to continue to work as a Master Licence holder in the Security Industry and to honour his obligations to both employees and customers. c) The Security Industry Registry proceeded to make the decision to revoke Mr Joliffe's Master Licence as a mandatory decision, based on advice received from a Mr. John Christie, Manager of the Department of Employment & Workplace Relations, Northern Area Office, in a letter to the Registry dated 23 August 2002. This letter incorrectly stated that: "I understand that this employer is the holder of a Master Licence and that a Master Licence holder must be disqualified if convicted of industrial relations offences." The Security Industry Registry relied on the information contained within this letter when deciding to revoke Mr. Joliffe's licence. This letter contained information that was clearly incorrect. In addition to the letter dated 23 August 2002, the workplace inspector forwarded a copy of a letter from Newcastle Local Court dated 12 August 2002 setting out the penalties and orders made in respect of the proceedings brought against Commercial Surveillance Pty Ltd under Section 178 (1) of the Workplace Relations Act 1996. This letter did not state that either Mr. Joliffe or the company had been convicted of any offence. It does not appear that the Security Industry Registry has taken any steps to ascertain whether or not the proceedings under section 178 of the Workplace Relations Act resulted in Mr. Joliffe being convicted of an offence. Mr Joliffe asserts that at no time prior to issuing the Notice of Revocation of Licence on 25 November 2002 did the Security Industry Registry have in its possession any evidence that Mr. Joliffe had committed an Industrial Relations Offence. The only evidence in the possession of the Registry was the letter enclosing copies of orders made by the Chief Industrial Magistrate at Newcastle on 6 August 2002. 18 Mr Joliffe relies on the fact that the Registry had no legal basis upon which to make the decision to revoke Mr Joliffe's Master Licence, as this is not a ground upon which a mandatory revocation of licence could be founded. 19 Mr Joliffe submits that the circumstances of this case may be distinguished from those of Raethel and Charteris in a number of respects. Firstly, those matters concerned applications under freedom of information legislation and arose from the agency's refusal to allow the parties access to documents. The decision in this matter concerned Mr Joliffe's ability to hold a Master Licence under the Security Industry Act. This is a matter that may have a serious impact on a person's ability to work, conduct a business and continue to employ people. 20 Mr Joliffe argues that Raethel concerned allegations of obstructional behaviour and Charteris concerned allegations of non-compliance with statutory provisions. In those matters the Tribunal decisions did not agree with the costs applicants' submissions on the issues of delay and obstructionalist behaviour. In contrast, the effect of the decision of the Appeal Panel in this application rendered the decision of the Security Industry Registry invalid. Therefore Mr Joliffe submits the primary matter that distinguishes this application from Raethel and Charteris is that in this matter the Security Industry Registry made a decision that was found to be invalid when such was not the situation in relation to the other matters. 21 Mr Joliffe asks the Tribunal to take into account as a special circumstance, the Security Industry Registry's reliance on incorrect advice from the Department of Workplace Relations when making the decision which was subsequently found to be invalid. Mr Joliffe argues that this is not a general request that the Tribunal provide a critique or to review the steps taken by the Security Industry Registry. 22 Mr Joliffe further submits that if the Tribunal accepts this as a special circumstance, the effect will not be to punish the Commissioner for any actions taken by it, but to compensate Mr. Joliffe. In the circumstances it was necessary for him to bring the application if he was to continue to enjoy his long-standing vocation in the security industry. 23 Mr Joliffe also submits that although the decision in Citaden Pty Ltd (No. 2) was in the Retail Leases division of the Tribunal, the Tribunal should rely on the factors listed at Section 109 of the VCAT Act when considering whether special circumstances exist. These considerations should not only be limited to the Tribunal's consideration of whether special circumstances exist in retail lease matters. In particular section 109(3)(c) of that Act is a matter that should be taken into account by the Tribunal in this matter when deciding whether special circumstances exist so as to warrant an award of costs. Section 109(3)(c) refers to 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. 24 Mr Joliffe criticised the approach adopted by the Commissioner in the original application where the Commissioner sought to argue that Clause 11(f) of the Security Industry Regulation extended the ordinary meaning of the words "convicted of an offence" to extend to penalties imposed under Section 178 of the Workplace Relations Act 1996. Mr Joliffe submits that the law on the issue of whether a penalty imposed under section 178 of the Workplace Relations Act 1996 is not a criminal conviction has been settled since the decision of Gapes -v- Commercial Bank of Australia (1979) 38 FLR 431 in 1974. 25 Finally, Mr Joliffe submits that the effect of the authorities is that the Tribunal should consider each matter on its own merits and is not limited to any particular test when determining what matters constitute special circumstances. No particular factor is necessarily determinative of whether special circumstances exist. Special circumstances are not limited to applications where there is an abuse of process or limited to the other specific examples as set out in the decision of the Appeal Panel in Tu -v- University of Sydney. Mr Joliffe submits that the above matters are special circumstances, which warrant an award of costs in the particular circumstances of this application. The Commissioner's case 26 The Commissioner also referred the Tribunal to the decisions in Brooks Maher v Cheung and Expile Pty Ltd v Jabb's Excavations Pty Ltd in relation to what constitutes special circumstances. Mr McLaughlin referred to the paragraphs from those decisions that are quoted above. 27 Mr McLaughlin referred to the case of Director General, Department of Education and Training -v Simpson [2001] NSW ADTAP 6 which concerned a situation where the appellant agency before the Appeal Panel, withdrew the application on the morning on which the matter was to be heard. In relation to an issue of costs the Tribunal stated at paragraphs 6 - 11: "The following is reasonably clear, i.e. that the mere fact that someone has succeeded in proceedings is not enough in itself to amount to a special circumstance, otherwise we would be back in the position of applying the rule of costs following the event (the ordinary rule in litigation) which clearly this Act and legislative scheme was intended to oust in the proceedings of this Tribunal. … We are disinclined in respect of applications of this kind to explore the history of an application for review of a decision prior to the time of its lodgment in the Tribunal, unless there is substantial material placed before us which might plainly demonstrate for example that the decision put in issue by the application was wholly unmeritorious - and that was known to be so or should have reasonably been understood to be so by the Department prior to the making of the application. Or that there was some other defect of a similar magnitude." 28 Mr McLaughlin referred to the decisions in Tu v University of Sydney [2002] NSWADTAP 25 and Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12. 29 In Tu v University of Sydney the Appeal Panel considered the principles that should apply when considering whether to make a costs order under section 111(1) of the Anti Discrimination Act. The Appeal Panel ordered costs against Mr Tu where he had failed to co-operate with the Tribunal's directions and respond to them in a timely way. This caused significant costs to the respondent. The Appeal Panel stated that: "42 The sanction of a full costs order against the complainant tends to be reserved for cases where an abuse of process is seen as having been involved, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith. 43 Where a matter is found to be misconceived or lacking in substance there is greater caution in making an adverse costs order. A complaint may be misconceived or lacking in substance for technical legal reasons (e.g. jurisdictional limitations, absence of preconditions as to proof of key facts) which may be lost on the (typically unrepresented) complainant. In these circumstances respondents are often left to bear the cost, because of the greater public interests involved in upholding the making of complaints of violation of human rights". 30 In Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12 it was stated at paragraph 90: "The power to award costs in circumscribed. In keeping with the position found in many modern statutory tribunals, the usual rule is that costs are not to be awarded. This is a measure that has at least two objectives - one, to remove an impediment to the exercise of important rights that the Tribunal has been established to see protected where appropriate; two, to discourage the use of lawyers. In these ways the goals of affordable, accessible justice are seen as being supported. But circumstances can arise in proceedings where a party should be given some compensation by way of a costs order. The special circumstances' power allows the Tribunal to take that action. 31 Mr McLaughlin submits that Mr Joliffe's application for costs lacks foundation. Several reasons are given in support of that submission: a) The decision to revoke Mr Joliffe's Master Security Licence was on the basis of the interpretation of the statute. That interpretation led to the view that Mr Joliffe had a conviction and the licence was cancelled by the operation of the statute. The wording of the particular statute has been the subject of these proceedings and the Commissioner's interpretation was upheld at first instance. The fact that the Commissioner's decision rendered Mr Joliffe unable to continue to work in the security industry was by operation of statute given the interpretation that was applied and subsequently upheld at first instance. Mr Joliffe's submission that these factors constitute 'special circumstances' to justify the making of a costs order must fail. b) The fact that it was necessary for Mr Joliffe to bring the proceedings in the Tribunal if he was to continue to work as master licence holder in the security industry and to honour his obligations to both employees and customers is not a 'special circumstance'. It is the exercising a legitimate appeal right by Mr Joliffe to restore the 'status quo' of his master security licence. In effect, it was a process enabling the review of the administrators decision making process as the 'correct and preferable decision'. In effect, it afforded Mr Joliffe procedural fairness. It also provided both Mr Joliffe and the Commissioner to argue a valid point of law. c) Once the Commissioner's decision was made, Mr Joliffe had to follow that process if he was to honour his obligations to both employees and customers. Mr Joliffe had to exercise his appeal rights for the status quo to be returned. Mr McLaughlin submits that there is no conduct shown that would warrant the making of a costs order as outlined in the tests above. d) The Security Industry Registry proceeded to make the decision to revoke Mr Joliffe's Master Licence as a mandatory decision. Mr McLaughlin submits that the information provided to the Registry would be a factor in determining whether a person had in fact been convicted or found guilty of an offence prescribed by the Regulations. Mr McLaughlin further submits that there is a lack of evidence to deal with whether the decision to revoke was based only on the advice of Mr John Christie. The documents from the Local Court Newcastle indicate that numerous penalties were imposed against Commercial Surveillance Pty Ltd for breaches of s 178(1) of the Workplace Relations Act 1996. Mr McLaughlin asserts that where penalties are imposed in a case such as this, it would be indicative of a finding of guilt. e) With respect to Mr Joliffe's reliance on the fact that the Registry had no legal basis upon which to make the decision to revoke Mr Joliffe's Master Licence, Mr McLaughlin submits that in fact, the Appeal Panel acknowledged at paragraph 62 that both Mr Joliffe and the Commissioner had supporting arguments in relation to judicial interpretation of the wording of the appropriate sections. It was only on appeal that Mr Joliffe was successful. At the time that the original decision was made, it was open therefore to find that the Commissioner acted in good faith. It follows, in his submission, that at the time the decision was made there was in fact a legal basis for the Commissioner to act as he did. f) Mr McLaughlin referred to the decision in Tu v University of Sydney where the Tribunal indicated that costs tends to be reserved for cases where there is an abuse of process and gives specific examples where the conduct of the complainant was frivolous, vexatious or lacking in good faith. In this matter, he submits, each party had an arguable case, which was determinable on appeal. The fact that the Security Industry Registry made a decision that was found to be invalid upon appeal does not place the matter into 'special circumstances' on the above outlined case law. g) Mr McLaughlin further submits that Mr Joliffe's argument that the finding that the decision of the Security Industry Registry was invalid amounts to a special circumstance' is against the principles outlined in Brooks Maher v Cheung. h) Mr McLaughlin also takes issue with Mr Joliffe's reliance upon the decision of Citaden Pty Ltd (No2) and the factors listed at Section 109 of the VCAT Act. Mr McLaughlin submits that the appropriate avenue of seeking costs in these particular circumstances is via section 88 of the ADT Act. 32 Mr McLaughlin submitted that the relevant authorities and the statutory wording of section 88 of the ADT Act establish the criteria that must be met. He argued that Mr Joliffe has not identified 'special circumstances'. Further, even if Mr Joliffe did identify 'special circumstances', the matter must be one in which the 'special circumstances' warrant the awarding of costs. The appeal was based upon an 'error of law'. Arguable cases were put forward by both parties at first instance and before the Appeal Panel. Therefore the Commissioner submits that Mr McLaughlin's submission that there are 'special circumstances' that warrant the awarding of costs must fail. Decision and Reasons 33 As noted above, section 88 of the ADT Act gives the Tribunal the power to award costs. The Tribunal's power to award costs is a discretionary power. It must therefore be determined whether, in the circumstances of this matter, that discretion ought to be exercised and if so, in whose favour it should be exercised. I agree with Mr McLaughlin's submission that this is a two staged process. If it is found that Mr Joliffe has identified 'special circumstances', I must also find that those 'special circumstances' warrant the awarding of costs. This approach is consistent with the views expressed at paragraph 14 in Brooks Maher -v- Cheung. 34 The provisions of section 88 of the ADT Act have been considered in numerous cases before this Tribunal. In Protogeros -v- Fouzas [2004] NSWADT 62 I stated: "50 The issue of costs has been considered in numerous cases before this Tribunal, most recently by Judicial Member Molloy in Sarip Investment Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27. I agree with Judicial Member Molloy's summary of the findings by the Appeal Panel decision in Randi Wiks Pty Limited v. Pokana Pty Limited [2003] NSW ADTAP 27 which make it clear that: (a) The question whether the fact that have been proved constituted "special circumstances" was not a question of law but one of fact. (b) There is a significant difference between Section 109 of the VCAT Act and Section 88 Administrative Decisions Tribunal Act 1997, the difference being that while Section 88 requires a finding of "special circumstances", Section 109 lays down a criteria of "fairness". This distinction is crucial and the Victorian Act does not give direct guidance to the interpretation of Section 88. (c) Arguments by an unsuccessful party that are put forward in good faith and have a reasonable basis do not of themselves entitle a successful party to an order for costs. It may well be different if the unsuccessful party had persisted with an unarguable case. (d) The fact that one of the objects of the Administrative Decisions Tribunal, as set out in Section 3(b), to the effect that this Tribunal should be "accessible", does not imply that costs should regularly follow the event … (e) In order to award costs the Tribunal must be "satisfied" that there are "special circumstances warranting an award of costs " (Section 88) and "special circumstances" means circumstances that are "out of the ordinary, but without having to be extraordinary or exceptional". 51 Applying these principles to the present circumstances, it is necessary that I find circumstances that are out of the ordinary, but not necessarily extraordinary or exceptional, that would warrant an award of costs. It is for the Tribunal to determine what are special circumstances in the particular circumstances of a matter before it. The Tribunal has to be satisfied that the circumstances warrant an interference with the position that each party should bear their own costs." 35 The authorities to which I have been referred by the parties support that view. The circumstances of this matter are quite different to the circumstances in each of the cited authorities. Nevertheless, there is a consistent approach taken in those matters. In each case where an award of costs was made, reason was found to depart from the standard position that each party should pay its own costs. 36 Mr Joliffe relies heavily on the assertion that the Commissioner did not follow proper procedural steps in making the original decision; that consequently he was forced to the Tribunal so that he would be able to carry on his business in the security industry; and that it was subsequently found that there was no legal basis for the Commissioner's decision. While Mr Joliffe has taken care to articulate his claim to avoid being overly critical of the Commissioner's pre-litigation conduct, it is my view that this assertion nevertheless falls within the circumstances discussed by the Appeal Panel in Charteris. I note that in Charteris the Appeal Panel urged caution in allowing costs to become a vehicle for the general scrutiny of pre-litigation conduct. Accordingly, caution is necessary in considering this particular submission. 37 In my view there is some merit in Mr Joliffe's submission that decisions that have the potential to impact seriously on a person's ability to work, conduct a business and continue to employ people, as is the situation in this case, may be distinguished from decisions under freedom of information legislation. I agree with Mr Joliffe's argument that the particular circumstances of the application have to be considered. 38 No particular factor is necessarily determinative of whether special circumstances exist. Special circumstances are not limited to applications where there is an abuse of process or limited to the other specific examples as set out in the decision of the Appeal panel in Tu -v- University of Sydney. Accordingly, I have paid close attention to the material that each party sought to rely on in support of their respective positions. 39 After considering all material, I do not accept Mr Joliffe's argument that the approach taken by the Commissioner in the original decision-making process amounts to "special circumstances" within the meaning of section 88 of the ADT Act. 40 Furthermore, while I accept that the Commissioner may have based the original decision on erroneous information, I do not accept that this amounts to "special circumstances". In my view the Commissioner's arguments were put forward in good faith and the Commissioner had a reasonable basis for those arguments. It is an oversimplification to state that the law in relation to this issue has been settled since the decision of Gapes -v- Commercial Bank of Australia in 1974. This is not a situation where the Commissioner had an unarguable case. The position is not altered by the fact that Mr Joliffe was successful on appeal. 41 I also reject Mr Joliffe's argument that special circumstances can be found in the fact that it was necessary for him to bring the proceedings in the Tribunal if he was to continue to work as a master licence holder and to honour his obligations to both employees and customers. 42 As I have indicated above by reference to my decision in Protogeros -v- Fouzas, I do not agree with Mr Joliffe's submission that the factors listed at Section 109 of the VCAT Act should be taken into account in this matter. In my view, the correct approach is to ascertain, on the basis of the particular circumstances of this matter, whether there are special circumstances that warrant an interference with the position that each party should bear their own costs. Having considered the circumstances of this matter I am not satisfied that there are special circumstances warranting an award of costs. Accordingly, there should be no order for costs. Order

1. Mr Joliffe's application for costs is refused. Each party is to pay their own costs.

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