Naylor v Commissioner of Police, NSW Police Force

NCAT Occupational|2014-10-21

Background 1The Commissioner of Police has applied for an order for costs on an indemnity basis with respect to proceedings that were heard before the Administrative Decisions Tribunal (the ADT) in 2013, with the decision being delivered on 2 May 2014: Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 43. A familiarity with that decision is assumed in these reasons. 2The Tribunal affirmed the decision of the Commissioner to revoke Essential Security Pty Ltd.'s Class MC Master Licence under the Security Industry Act 1997. In reaching that decision I made a series of adverse findings with respect to the reliability of the evidence Ms Naylor and her witness, Mr Farooq. I also found that Ms Naylor had actively sought to deceive the Commissioner and the Tribunal in an effort to retain the corporate master licence. 3As the proceedings were part heard before me as a member of the ADT, at the time when the New South Wales Civil and Administrative Tribunal was established, clause 7(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013 provides that (a) I complete the matter sitting as a member of NCAT; and, (b) "the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply." As a consequence, the costs application is to be determined under s 88 of the Administrative Decisions Tribunal Act 1997 as it was before the establishment of NCAT. 4Section 88 relevantly provided - (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. (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 a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. 5While both parties were given an opportunity to make submissions with respect to costs, only the Commissioner of Police has done so.

The Commissioner's submissions 6In submissions the Commissioner briefly referred to various findings adverse to Ms Naylor that I made in the course of my substantive decision. These included findings that Ms Naylor had actively sought to deceive both the Commissioner and the Tribunal and that she had given false evidence. I do not intend to repeat these matters in any detail as they are evident from a reading of the substantive decision. 7The Commissioner submitted that a consideration of the substantive decision reveals that Ms Naylor's application had no tenable basis and was lacking in substance. Her dishonesty in her dealings with the Commissioner and the Tribunal alone was said to be sufficient to justify a costs order. 8The Commissioner adduced evidence, in the form of an Affidavit from Felicity Howell, the solicitor with the carriage of the matter on behalf of the Commissioner, concerning a "without prejudice except as to costs" letter sent to Ms Naylor's then solicitor in 16 August 2013. At that stage the matter was part-heard before me. The letter relevantly said - You will have had a chance to review the Commissioner of Police's evidence that was served on 16 August 2013. We expect the evidence compiled by the NSW Police would make it highly unlikely that Ms Naylor will succeed in convincing the ADT to overturning the Commissioner of Police's decision to revoke the Master Security Licence issued to Excellent Security Pty Ltd on 7 May 2011. The evidence marshalled raises real issues of concern: 1. Despite assertions to the contrary, Mr Farooq still has involvement in Excellent Security in a significant way; 2. Excellent Security, through Mr Farooq, is involved in a dishonest and potential unlawful scheme of issuing training certificates when no training has been undertaken; 3. There is evidence of Mr Farooq paying money into Excellent Security and Peacekeepers Security receiving payment from Excellent Security; 4. Ms Naylor cannot, we submit, disavow herself of any knowledge of these matters. If she does purport to do so, it will demonstrate it is not in the public interest to allow her to operate Excellent Security. If she knows about it, she has been dishonest and that disentitles her to a licence In the circumstances we invite Ms Naylor to promptly withdraw her application from the ADT. The NSW Police costs to date are about $12,500; this is largely due to the need to pursue and test Ms Naylor's evidence and Mr Farooq's apparent false statements. If Ms Naylor continues with the proceedings and is unsuccessful we will be seeking an order for costs on an indemnity basis. We ask that your client consider her position before further costs are incurred. 9Ms Naylor did not withdraw her application and the matter proceeded, being heard on two further days. It is to be noted that she was not legally represented on those occasions. 10The Commissioner submitted that Ms Naylor should have known her application to the Tribunal had no chance of success and that her pursuit of it, and her reliance on false evidence in doing so, required wasted and unnecessary expense in opposing it. Her application was said to be based on "deliberate lies and wilful disregard of the known facts", and given her refusal to withdraw, costs on an indemnity basis were sought. The total costs of the proceedings to the Commissioner claimed were $29,115.48.

Consideration 11When considering an issue of costs under s 88 of the Administrative Decisions Tribunal Act 1997 the starting point is that each party is to bear their own costs unless it is fair to make a costs order having regard to the consideration set out in sub-section (1A). 12In the present case I agree with the Commissioner that Ms Naylor's case was always weak and destined to fail, a consideration under sub-section (1A)(c). I also accept that Ms Naylor attempted to deceive both the Commissioner and the Tribunal with respect to the involvement of Mr Farooq in the operations of the licenced corporation, in an effort to hide the very weaknesses that made her application untenable. This in turn is a relevant consideration under sub-section (1A)(a)(v). I also think that Ms Naylor's persistence with her application after receipt of the Commissioner's letter of 16 August 2013, pointing out the futility of her position, is a relevant factor which makes it fair to consider making a costs order in favour of the Commissioner under subsection(1A)(e). That letter is not analogous with a Calderbank offer, as it did not offer a compromise, but simply demanded that Ms Naylor capitulate. 13Those three factors combine to persuade me that in the circumstances of this case it is fair to order Ms Naylor to pay the Commissioner's costs of this proceedings on the ordinary basis. 14I am not persuaded in the context of merits review proceedings' under the Administrative Decisions Tribunal Act 1997, relating to a master licence under the Security Industry Act 1997, that the costs order should be on an indemnity basis. As I have already mentioned the Commissioner's letter of 16 August 2013 is not analogous with a Calderbank offer.

Order 15The Tribunal orders that Ms Naylor pay the Commissioner's costs of this proceeding, such cost in default of agreement to be assessed.

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: 21 October 2014

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