Robinson v Commissioner of Police, NSW Police [2025] NSWCATAD 248;

1. Section 60 of the Civil and Administrative Tribunal Act (NSW) 2013 requires parties to pay their own costs unless the Tribunal is satisfied that special circumstances warrant an award of costs. Section 60 of the Civil and Administrative Tribunal Act, 2013 provides as follows:

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.

1. The meaning of the term "special circumstances" has been the subject of several decisions in the Appeal Panel (see for example Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Sahade v Owners SP 62022 [2015] NSWCATAP 225; Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 and Gaynor v Burns [2015] NSWCATAP 150; Commissioner for Fair Trading (NSW) (No 2) [2016] NSWCATOD 60; Quinones v Council of the Law Society of New South Wales [2023] NSWCATOD). Those cases show that the expression "special circumstances" means circumstances which are out of the ordinary but not necessarily extraordinary or exceptional. Of course, each case will depend on its own facts and the Tribunal may "in a structured exercise of discretion, have regard to the criteria in s 60: Gaynor v Burns [2015] NSWCATAP 150 at [18]."
2. The scope of s60(3) is broad, particularly given s60(3)(3): see Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134-135.
3. In this costs application, the respondent relied on s60(3) (a), whether a party has "unreasonably disadvantaged another party", s60(3)(b), whether a party has "unreasonably prolonged the proceedings", s60(3)(f) whether a party has "failed to comply with obligations under s36(3) and s60(3)(g) "any other relevant factor".
4. The Respondent has applied for costs in the limited sum, a "nominal sum" of "$10,000.00 or such other sum as the Tribunal deems fit". Three bases were advanced for such an order, namely that there was a Calderbank offer that was unreasonably rejected; secondly that there was non-compliance with orders of the Tribunal that resulted in undue delays during the litigation and thirdly that "at the heel of the hunt" on 7 May 2025, one day before publication of the judgment, an application was made seeking deferral of publication of the decision and a further extension of time to file the applicant's written submissions.
5. As to the Calderbank offer, on 30 November 2022, a Calderbank offer in the sum of $70,000 was made to the applicant marked 'without prejudice except as to costs' enclosing a deed that pointed to finality in the matter.
6. This was rejected by the applicant, who argues that the offer involved his agreeing not to apply for any position with NSW Police including non-police roles, which went beyond the proceedings and would have unduly restricted his future options. Further, it involved a confidentiality clause and non-disparagement clause which, if contravened, would have triggered an obligation in debt to repay the full amount of the settlement. Further, the applicant points out that the offer was open for a short time, but was extended from 12.07 on 30 November 2022 to 6 December 2022, which, was, he argues, insufficient time to consider the prospects of continuing the litigation. The offer was also served before the respondent had served her medical evidence. The applicant states that he indicated a willingness to negotiate and also made his own offers.
7. We find that there was sufficient time for the applicant to consider the Calderbank offer, as extended, and that the litigation had reached a stage where there was sufficient evidence for the applicant to seriously consider the Calderbank offer, although the medical evidence of the other party had not yet been served.
8. The conditions attached to the Calderbank offer went beyond what was necessary to resolve this litigation, but given the history of the matter, it was not unreasonable that the respondent sought to bring finality to matters involving the possible engagement of the applicant.
9. As to the offers made by the applicant, the offer made by the applicant to resolve the litigation dated 31 January 2023 involved the applicant being appointed as a NSW police officer effective 20 February 2023, posted to a particular region, the Sydney Metropolitan area/Central Metropolitan region, with the respondent to pay for courses provided by external educators such as Charles Sturt. That was an unrealistic offer, in the Tribunal's view. A further, very similar offer was also made on 10 May 2023.
10. Of itself, the Calderbank offer is, in the circumstances of this case, insufficient to warrant a departure from the "usual order" as to costs, but the counter offers made by the applicant, a matter raised by the applicant, appear unreasonable, a factor that can be considered in relation to s36(3) obligations of the applicant and pursuant to s60(3)(g).
11. The second argument of the respondent concerns delay in the litigation caused by the applicant. Due to the unavailability of the applicant's counsel, the timetable set for written submissions was not complied with. The applicant conveyed to the respondent the undertaking said to have been given by his Counsel to pay any costs thrown away as a result of her failure to comply with the timetable. She has provided her own statutory declaration of 10 June 2025 as to the medical and personal care responsibilities that led to that inability to comply with the timetable.
12. Ms Heath's Statutory Declaration of 10 June 2025 states that the failure of the applicant to file his written submission in a timely manner was "not due to any fault of his personally" but "due to my difficulty in completing the work due to my illness and personal circumstances".
13. The timetable for written submissions after the hearing was extended several times by the Tribunal: on 8 and 17 October 2024, 13 January 2025 and 7 May 2025. Those were generous extensions. If the written submissions of the applicant could not have been prepared within the times allowed by such extensions, then alternative arrangements ought to have been made, for example by Counsel returning the brief, the applicant choosing to brief another barrister or the applicant preparing the written submissions himself. The delay in providing those submissions was unacceptable in duration and is relevant as to whether there are "special circumstances" sufficient to depart from the "usual" position in relation to costs.
14. Those repeated defaults in filing written submissions delayed finalisation of the substantive litigation by several months, caused the respondent to incur further costs in responding to the non-compliance of the applicant and disrupted the Tribunal's orderly and timely disposition of the matter.
15. The respondent also argues that the "delay and procedural ambivalence" in lodging a request on 7 May for further time to re-engage counsel or self-represent to file submissions came "far too late". That is an extension of the second argument for the costs sought, namely that there was such a delay in filing the final written submissions on the part of the applicant. That argument is accepted, given the previous extensions to the timetable that were granted.
16. The applicant argues that the respondent also delayed proceedings by the lack of availability of one of its key witnesses, Detective Chief Inspector Lindley, by seeking a stay, seeking an expert examination of the applicant which was cancelled at one point and re-scheduled and failing to respond to summonses for production issued by the applicant. It is necessary to consider those arguments.
17. Seeking a stay, in all the circumstances of previous litigation, was not unreasonable. It was not an unmeritorious or unwarranted application.
18. Having the applicant medically examined by Dr Greenberg was not unreasonable. The respondent was not obliged to serve his report, despite the requests of the applicant to do so.
19. The Tribunal accepts that DCI Lindley's unavailability caused delay. His unavailability was, however, notified sufficiently in advance that the applicant was on notice of it.
20. The Summonses were legitimate forensic steps that were open to the applicant. The applicant sought production of material informally, which was reasonable and appropriate, however the ambit and extent of the material sought gave rise to argument, necessitating a formal application for the material.
21. There was considerable argument regarding the scope of the summonses, which the Tribunal reduced, accepting some of the arguments of the respondent. The number of individual files that the respondent was required to produce was considerable.
22. The Tribunal reduced the number of individual applicant files that needed to be produced in answer to the summons and limited the material that could be sought. Ultimately an argument of indirect discrimination (for which such production could have been utilised) was not fully articulated, perhaps due to the lack of availability of the applicant's Counsel. Nevertheless the respondent was put to considerable effort to produce the files of approximately 50 other applicants for roles in the NSW Police Service. That is a matter that is relevant as to costs, as it materially added to the length of the interlocutory proceedings, requiring several directions hearings, without significant argument or submissions as to the utility of that material produced.
23. There is an additional matter, not argued by the respondent, but which arises from the submissions and affidavit of the applicant as to costs. Included in the annexures GR-1 to the applicant's affidavit of 6 June 2025 regarding costs, at page 56, is a letter from the respondent's solicitors dated 14 June 2023 to Mr Robinson. The letter states that although being aware that the respondent was legally represented by Kingston Reid, Solicitors, Mr Robinson sought to make contact with the Commissioner of Police 21 times since the proceedings commenced in November 2021, and at least 15 times sought to make contact with the Commissioner's Chief of Staff, ventilating issues being dealt with in the proceedings or restating offers he made to resolve the proceedings. Kingston Reid asked that correspondence be directed to them. Each instance of such attempts by the applicant was identified by date and set out in a table. Such conduct by the applicant would also have increased costs incurred by the respondent unnecessarily.
24. The applicant argued that the respondent ought to have produced full workings of the costs claimed in order to justify the amount claimed, $10,000 (although it should be noted that in the alternative the respondent sought that the Tribunal award "other such sum as the Tribunal deems fit").
25. It is clear that the costs expended by the respondent in this litigation would have far exceeded the $10,000 claimed, as this litigation involved a number of contested interlocutory applications and hearings over 4 days. In the affidavit of Ms Christa Lenard, Solicitor, dated 22 May 2025, at paragraph 34, she states that from a review of invoices from the issuing of the Calderbank offer on 30 November 2022, costs of the respondent were approximately $203,553.36, comprising $145,422.35 in solicitor costs and $58,131.01 in Counsel's costs. Although, as the applicant, states, individual invoices were not produced by the respondent, it is clear that the amount expended by the respondent in the litigation significantly exceeded $10,000.
26. It is not necessary or appropriate, in the NCAT context, to make an assessment of the respondent's total costs. Given the limited amount sought in costs by the respondent, it is not necessary to require production of the invoices for the Tribunal to be satisfied that the costs of the respondent significantly exceeded $10,000.
27. The applicant submitted that if arguments against making such an order were not accepted, then "a gross sum assessment of $500 would be reasonable". That argument is rejected as the amount does not represent a reasonable contribution to the costs of the proceedings, which is what, in effect, the respondent has sought. The amount of $10,000 is not sought by the respondent to be justified as a "gross sum assessment" of costs. It is fairly clearly a contribution to costs in a specified amount. Thus it is not a claim analogous to the claims in either Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA54 or Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy trading as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327, as argued by the applicant.
28. The Tribunal finds that there are special circumstances that justify departure from the usual rule that each party is to bear its own costs, namely that the applicant failed to comply with obligations under s36(3) in issuing summonses that were overly broad and seeking material that was ultimately not relied upon in an indirect discrimination claim that was unsuccessful, in prolonging the proceedings by significantly delayed written submissions, in rejecting the Calderbank offer and being unrealistic in offers made to resolve the proceedings and in unwarranted communication directly with the Commissioner and others, rather than communicating with the solicitors on the record. These matters are sufficient to constitute "special circumstances" that warrant a departure from the usual position
29. The amount sought by the respondent is a significant amount, but one which is only a contribution to costs. Given the interlocutory steps in the matter, the number of hearing days and the matters set out above, the figure of $10,000 is reasonable and is allowed.
30. In the exercise of discretion, the amount of $10,000 is awarded in relation to costs, to be paid by the applicant by 29 October 2025.

(1) By 29 October 2025, the applicant is to pay to the respondent the sum of $10,000.00 as a contribution to costs.

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.