Papadellis v Commissioner of Police, NSW Police Force

NCAT Occupational|2018-12-18

REASONS FOR DECISION

The Commissioner of Police, NSW Police Force ("the Commissioner") seeks his costs of the review by the Tribunal of the Commissioner's decision under the Security Industry Act 1997 to not issue Mr John Papadellis with a Class 1AC security licence. The licence was refused on the basis that Mr Papadellis is not a fit and proper person to hold a security licence and it would not be in the public interest that he be given such a licence.
The application for review was lodged by Mr Papadellis with the Tribunal on 6 April 2018. The section 58 documents were filed by the Commissioner on 22 May 2018. Directions were made on 22 May 2018 for the filing of evidence and the matter was listed for hearing on 13 August 2018. That hearing date was vacated due to the non-compliance by Mr Papadellis with the directions made by the Tribunal. A new timetable for the exchange of evidence was made at a directions hearing on 14 August 2018 and the matter was listed for hearing on 19 September 2018.
Mr Papadellis filed a statutory declaration on 14 August 2018 and, on 12 September 2018, filed further documents in support of his application. Also on 12 September 2018, the Commissioner filed an outline of submissions and further evidence. Shortly prior to the commencement of the hearing on 19 September 2018, Mr Papadellis withdrew his application.
It was agreed that the Tribunal would determine the costs issue on the papers. The Commissioner made submissions on costs in accordance with the timetable set by the Tribunal. No submission in response has been received from Mr Papadellis. Mr Papadellis was not legally represented in the Tribunal proceedings.

Consideration

The Commissioner relied upon several decisions of the Tribunal which have awarded costs to the Commissioner in cases involving similar background facts and circumstances to the present case whereby persons obtained or sought to obtain NSW security licences: Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 120; Ahmed v Commissioner of Police, NSW Police Force [2017] NSWCATOD 113; Abughazaleh v Commissioner of Police, NSW Police Force; Sydney Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATOD 30; Ajami v Commissioner of Police, NSW Police Force [2018] NSWCATOD 95.
In each of the above cases, with the exception of Ajami, the costs awards were made after a hearing on the merits in which the licence holder gave evidence and was cross-examined. In those cases the Tribunal made findings that the applicants gave untruthful evidence and that their cases could not succeed.
In this case, as was the case in Ajami, the applicant withdrew his application prior to the hearing. The withdrawal of an application without a hearing on the merits can lead to an award of costs, particularly where the conduct of the applicant can properly be regarded as prolonging unreasonably the time taken to complete the proceedings (see Rae v Commissioner of Police, NSW Police Force (No 3) [2010] NSWADT 254).
The Commissioner in his submissions did not explicitly refer to s 60(3)(b) as a ground for the award of costs but, nevertheless, made comment that Mr Papadellis had had the section 58 documents since 22 May 2018, that he had a weak case and ought to have withdrawn in a timely manner but did not do so. As a result, the Commissioner unnecessarily incurred costs in preparing for the hearing. This was one of the grounds upon which the Tribunal awarded costs in Ajami, along with the fact that Mr Ajami failed to file any materials which resulted in several directions hearings and an adjourned hearing (s 60(3)(f)).
I am not satisfied in this case that the proceedings were unreasonably prolonged by Mr Papadellis's actions or inaction or that his failure to comply with the initial directions of the Tribunal was sufficient to amount to special circumstances for the award of costs. I am mindful that Mr Papadellis was not legally represented in the proceedings nor is there any evidence that the Commissioner alerted him that his case had no prospects of success and might incur costs. It appears that when Mr Papadellis did seek some advice shortly before the hearing, he immediately withdrew the application.
I am satisfied, however, that there are special circumstances warranting an order that Mr Papadellis pay the Commissioner's costs as his application had no tenable basis in fact or law. Furthermore, Mr Papadellis has been dishonest.

Dishonesty

While it is not open to me to make findings of fact with respect to the substantive issues that were in dispute in these proceedings, there are matters which lead me to conclude that Mr Papadellis has been dishonest. A party's dishonesty is a relevant matter to take into account in determining whether to award costs (Abughazaleh v Commissioner of Police, NSW Police Force; Sydney Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAD 30; Ahmed v Commissioner of Police, NSW Police Force [2017] NSWCATOD 113).
Mr Papadellis acknowledged in his statutory declaration of 12 August 2018 that he had provided false statements in connection with his application for a NSW security licence. In particular, he acknowledged that his statement made to investigators that he had attended a course in Queensland was false. Mr Papadellis was therefore aware that certificates which attested that he had completed certain training, and which he submitted to the Queensland authorities in order to obtain a security licence, were false. He also therefore knew that he submitted false information to NSW Police to obtain a NSW licence and to the Australian Skills Quality Authority (ASQA) in response to a notification from ASQA that it intended to cancel the qualifications issued to him by Peacemakers.
Furthermore, Mr Papadellis provided a signed witness statement dated 20 April 2017 in Tribunal proceedings involving Mr Abughazaleh and Sydney Training Academy. In the statement he reiterated his contentions that he had undertaken the requisite training in Queensland. Although Mr Papadellis did not give oral evidence to the Tribunal in that case, in light of other evidence before it, the Tribunal did not accept the veracity of his written statement (Sydney Training Academy Pty Ltd v Commissioner of Police, NSW Police Force; Abughazaleh v Commissioner of Police, NSW Police Force [2017] NSWCATOD 176 at [96] to [98]).
In addition, in support of his most recent application for a NSW security licence in October 2017, Mr Papadellis relied upon a First Aid certificate issued by Spectrum Institute of Training and Education dated 17 March 2017. In Sydney Training Academy, the Tribunal found, based on telephone records, that Mr Papadellis did not attend that training (at [88] to [89]).
The Commissioner referred to several other alleged instances of dishonesty by Mr Papadellis. There is no need to enumerate those and the major instances are set out above.
In his statutory declaration of 12 August 2018 Mr Papadellis states that any of the false statements that he made were made under the instruction of Mr Abughazaleh or other persons. He states he did not intentionally make these false statements. This statement would indicate that Mr Papadellis lacked any will or mind of his own. Mr Papadellis is a well-educated man with a previous career as an engineer. He knew the statements were false at the time he made them and ought to have been aware that the falsification of professional qualifications is a serious matter.

Claim not tenable

In Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 the Appeal Panel set out what is required for it to be determined that a claim is "not tenable in fact or in law". The Appeal Panel, referring to Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, stated that, for a claim to have no tenable basis in fact or law it must be so obviously untenable that it cannot possibly succeed. The Appeal Panel went on to say that "manifestly groundless" or "clearly untenable" are equivalent expressions. The Panel held that it matters not whether a conclusion that a claim has no tenable basis in fact or law is reached in connection with an application for summary dismissal or after a full hearing on the merits (at [44]). By extension, in my view, it also does not matter if the application is withdrawn before a hearing on the merits.
The application made by Mr Papadellis to the Tribunal had no merit and no prospect of success. He knew he had made false statements about how he had obtained his qualifications and knew that he was not entitled to a security licence. He was also aware, as he had provided a witness statement in the Tribunal proceedings, that action had been taken against Mr Abughazaleh and Sydney Training Academy for their part in the arrangements under which he had obtained those false qualifications. It is clear in those circumstances that his application had no tenable basis in fact and was a waste of the Tribunal's and the Commissioner's resources.

Frivolous, vexatious or lacking in substance

I am not, however, satisfied that the proceedings were frivolous, vexatious or lacking in substance. Mr Papadellis was entitled to bring his application and there is no suggestion that he did so out of any malice towards or desire to harass the Commissioner. Like the Tribunal in Mr Abughazaleh's case, I am not satisfied that the proceedings were "utterly hopeless" or that an application for summary dismissal would have succeeded if the Commissioner had made an application for such an order (Abughazaleh v Commissioner of Police, NSW Police Force; Sydney Training Academy Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAD 30 at [31]).

Should costs be awarded on an indemnity basis?

The Commissioner has sought costs on an indemnity basis. Costs on this basis are not awarded lightly. The Commissioner referred to cases such as Peng v Chief Commissioner of State Revenue [2009] NSWADT 295 in which it was stated that knowingly giving false evidence is a circumstance which may justify an award of indemnity costs.
In Mendonca v Tonna [2017] NSWCATAP 176 at [59]-[64], the Appeal Panel set out the principles applicable to the award of indemnity costs, observing: 59 Indemnity costs are only awarded in limited circumstances. The discretion to do so must be the subject of careful reasoning (Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354) and caution should be exercised in making such an award: Leichhardt Municipal Council v Green [2004] NSWCA 341; Ng v Chong [2005] NSWSC 385 at [13]. 60 Other than in relation to the unreasonable refusal of a genuine offer of settlement, one circumstance in which indemnity costs may be awarded is when a case is commenced or continued where there is no chance of success (Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [4]), such as where the claim is "without substance", "groundless", "fanciful or hopeless" or so weak as to be futile, such as where a limitation period is obviously at an end: Hillebrand v Penrith Council [2000] NSWSC 1058. However, mere weakness of a case will not be sufficient to warrant an exercise of the discretion to award indemnity costs: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534. … 62 Another circumstance which may warrant an order for costs on an indemnity basis is where the proceedings amount to an abuse of process: BaillieuKnight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 at 362. Examples of abuse of process include where the proceedings are commenced other than in good faith or for an ulterior or collateral purpose: Palmer v Gold Coast Newspapers Pty Ltd [2013] QSC 352; Packer v Meagher [1984] 3 NSWLR 486 at 500. … 63 An award of indemnity costs may also be made for unreasonable conduct. Such conduct may include unnecessarily prolonging the proceedings, (Degmam Pty Ltd (in liq) v Wright (No 2), at 358); unfounded allegations of fraud or improper conduct (Maule v Liporoni (No 2) (2002) 122 LGERA 216 at 229); deliberate or high-handed conduct (Rouse v Shepherd (No 2) (1994) 35 NSWLR 277) and behaviour which causes unnecessary anxiety, trouble or expense, such as the failure to adhere to proper procedure (FAI General Insurance Co Ltd v Burns (1996) 9 ANZ Ins Cas 61-384). Disregard of court orders may justify an indemnity costs order (O'Keefe v Hayes Knight GTO Pty Ltd [2005] FCA 1559 at [35]). Perverse persistence by an unrepresented litigant with a hopeless application may also do so: Rose v Richards [2005] NSWSC 758. 64 Misconduct of a serious nature, such as fraud, perjury, contempt or dishonest conduct may also justify costs being awarded on an indemnity basis: Berkeley Administration Inc v McClelland [1990] FSR 565 at 568-569; Ivory v Telstra Corporation Ltd [2001] QSC 102); Vance v Vance (1981) 128 DLR (3d) 109 at 122.
While I have found that that Mr Papadellis' case had no tenable basis, I am not satisfied that his conduct was unreasonable or, as noted above, his case was utterly hopeless or commenced with any collateral purpose. Of most relevance to this case, is the discussion by the Appeal Panel that misconduct such as dishonesty may justify an award of costs on an indemnity basis.
Mr Papadellis has acknowledged that he provided false evidence to NSW Police and other authorities. He did not, however, persist with that evidence before the Tribunal, although he sought to put his conduct in the best possible light in his witness statement. After talking advice, he quite properly withdrew his application. In the circumstances, I am not satisfied that an award of indemnity costs is appropriate.

What order should be made?

The Commissioner has provided an affidavit of James Bernard Mattson, a lawyer with the solicitors employed by the Commissioner in these proceedings. He sets out the costs incurred by the Commissioner in responding to Mr Papadellis' application. The amounts sought by the Commissioner are set out earlier in this decision. Mr Mattson states that the legal fees are charged at significantly reduced rates obtained by the Commissioner under tender.
The circumstances in which a gross sum costs order may be made were examined by the Appeal Panel in Zucker. At [76] the Appeal Panel set out the matters which the Tribunal is required to consider before making such an order: 1. directed the respondents to provide evidence of the legal costs they incurred and the appropriate discount, if any, to be applied; 2. directed the appellant to provide evidence in response to the respondent's evidence; 3. invited the parties to make submissions in relation to the proposed order; 4. made findings of fact in respect of the claimed costs; and 5. applied the legal principles relevant to the making of a gross sum costs order to its findings of fact.
As noted above, the Commissioner provided submissions on costs but the applicant failed to respond to that submission or make any other submission as to his view on the question of costs. In the circumstances, to avoid any expense or delay arising out of any taxation of costs, it is appropriate to award a gross sum.
The Commissioner claims $3,500 being the costs thrown away in preparation for the hearing and of this costs application. As it is not appropriate to awards costs on an indemnity basis, I propose to reduce the costs claimed to reflect a part/party figure. The Commissioner claims that the costs already reflect a reduced amount due to the tender arrangements between the Commissioner and its solicitors. There is, however, no evidence before me about what that reduction is likely to be.

Order 1. The applicant shall pay the respondent's costs of this application fixed at $2,800. 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: 20 April 2023

(2002) 122 LGERA 216

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