Sheehy v Commissioner of Police, NSW Police Force; Rapisarda v Commissioner of Police, NSW Police Force; McDonald v Commissioner of Police, NSW Police Force; Housego v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2018-05-24

Mr B Eurell (Applicants) Mr M Seck (Respondent)

Dowson Turco Lawyers (Applicants) K & L Gates (Respondent) File Number(s): 2016/00378368, 2016/00378369, 2016/00378371, 2016/00378372

Summary

These reasons deal with an application by the Commissioner of Police for costs of proceedings heard on 21 and 22 September 2017. My reasons for decision were published on 16 January 2018: Sheehy v Commissioner of Police, NSW Police Force [2018] NSWCATAD 73 (the primary decision). I affirmed the various decisions of the respondent under review.
The Commissioner submits that there has been a waste of public resources associated with these applications, and that the applicants should pay his costs. The Commissioner seeks a lump sum costs order against each of the applicants, jointly and severally, in the sum of $100,000.

The relevant principle

The relevant costs rule appears in s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). That section provides: 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.
The authorities establish that: 1. "Special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]- [31]; 2. the Tribunal must weigh up whether or not the special circumstances involved in the particular case warrant a departure from the usual rule that each party bear their own costs: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81]. 3. the discretion to award costs must be exercised judicially, having regard to the principle that parties should ordinarily bear their own costs: eMovePty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48].

Are there special circumstances warranting an award of costs?

Unnecessary disadvantage

The first matter relied on by the respondent is that the applicants caused disadvantage to the respondent by "constant changes" to their arguments. In particular, the respondent says that early on in the proceedings the applicants agreed to limit the scope of the reviews to the revelation of the identity of the complainant. The applicants denied that they had limited the scope of their applications in this way. An interlocutory hearing was held on 19 May 2017 to determine this issue. In Sheehy v Commissioner of Police, NSW Police Force [2017] NSWCATAD 163 the Tribunal found that the applicants had not expressly confined the scope of their application as claimed by the respondent. Given this conclusion, I do not accept, at least in relation to this matter, that the applicant conducted the proceedings in a way that unnecessarily disadvantaged the respondents.
A second matter relied on was the volume and the nature of evidence filed by the applicants. For each applicant there was a lengthy affidavit. To take Mr Rapisarda's affidavit as an example, it comprised 39 pages and exhibited some 70 documents. Except for some minor changes, the parties agreed that this was the same evidence as had been filed in proceedings brought by each applicant against the Commissioner seeking relief under the Anti-Discrimination Act 1977 (NSW) (the discrimination proceedings). Tender of these affidavits was objected to. On the first day of the hearing I asked the applicants' counsel to consider tendering only those parts of the affidavits which were relevant to the present proceedings.
The justification put by Mr Eurell was that the entirety of the affidavits was relevant to establishing unlawful conduct. He said discrimination was prohibited by the Anti-Discrimination Act, and what the affidavits established was unlawful conduct which culminated in what the applicants described as a malicious complaint that led to the investigations. I allowed the tender, but indicated I doubted the relevance of much of the material. Mr Eurell said that he did not expect the Tribunal to use the material without further assistance, and that he proposed to address the more substantial or significant aspects in his submissions. However, he did not do so.
But, regardless of this, the affidavits had been filed and served in the proceedings, and it was reasonable for the Commissioner to prepare on the basis that they would be relied on. I find that the applicants tendered affidavits slightly modified from those tendered in the discrimination proceedings. This modified evidence did not focus on the public interest factors relevant to disclosure. There is substance in the Commissioner's submission that the applicants "just 'recycled' their affidavit evidence and the majority of their submissions made in the discrimination proceedings, in the knowledge that the [Commissioner] was put to the time and expense of meeting the onus of justifying their own internal review decisions, irrespective of how weak the case might be that they presented".
A third matter relied on was the lengthy cross-examination of Detective Chief Inspector Newton. In the primary decision at [44] I found that Chief Inspector Newton was not asked questions about the public interest factors against disclosure relied on by the respondent, which he had explained in his open affidavit evidence; that his affidavit evidence was not the subject of any challenge, and that on the whole his cross-examination was irrelevant to my task.
I note that after the morning tea adjournment on the first day of hearing, the cross-examination having commenced early that morning, I indicated that I was concerned that the cross-examination would not assist me in my task. That was particularly the case where, as I explained, ultimately, I would be comparing the unredacted documents with the redacted versions to decide whether the claims made by the Commissioner were established. When the cross-examination was not completed by the end of the first day, I suggested to Mr Eurell he would need to consider completing his cross-examination. To ensure that the hearing would finish in the two days' allocated, I directed that we commence the second day of hearing half an hour earlier than usual. As it transpired, the largely irrelevant cross-examination lasted the equivalent of a whole day of hearing.
The nature of the evidence filed by the applicants and the scope and length of the cross examination of Chief Inspector Newton are matters which should be considered in determining whether or not there are special circumstances warranting an award of costs.

Unreasonable prolonging of the litigation

The principal matters on which the respondent relies in relation to unreasonably prolonging the matter are: 1. Mr Eurell's cross-examination of Chief Inspector Newtown; 2. the applicants' counsel's application that he and his instructing solicitor be allowed to be present during a confidential hearing conducted pursuant to s 107 of the Government Information (Public Access) Act. Here the respondent relies on my observations at pars [25] to [33] of the primary decision for rejecting that application.
I have already commented on the length and scope of the cross-examination of Chief Inspector Newton.
I agree with the respondent that the application to be present during the confidential hearing also added to the length of time it took to complete the proceedings.
These matters should be considered in my determination of whether there are special circumstances warranting an award of costs.

The relative strengths of the claims

The respondent submits that the Tribunal must compare the respondent's "robust case" with the case pressed by the applicants, which it says was unmeritorious. The respondent says that there is a clear disproportionality between the relative strengths of the claims made by the parties that enlivens ss 60(3)(c) of the NCAT Act.
I disagree. I find this factor does not amount to special circumstances, particularly where an applicant has no way of knowing or testing the confidential evidence relied on by the respondent.

The nature and complexity of the proceedings

The respondent submits that, in many respects, this factor is coextensive with ss 60(3)(a) and (c), and that the proceedings were entirely rudimentary. I agree. I find this factor does not amount to special circumstances.

Proceedings being frivolous or vexatious or otherwise misconceived or lacking in substance

The respondent concedes the proceedings were not frivolous.
I reject the submission that the proceedings were lacking in substance. True it is the applicants were unsuccessful, but as I have noted, applicants face real difficulties where a respondent relies on confidential evidence the applicant's cannot see and cannot test. For this reason, I also reject the respondent's alternative submission that the applicants' case was so manifestly groundless as to be utterly hopeless.
However, I think that there is some substance in the submission that the proceedings were designed to achieve a collateral purpose. The applicant's affidavits are a case in point. I noted above that the affidavits were largely, if not totally, irrelevant. Their use was said to be justified on the basis of establishing unlawful discriminatory conduct. This was accompanied by regular allegations throughout the hearing to similar effect, and repeated in the applicants' submissions; for example:

"this case . . . involves a completed investigation tainted by illegal and unlawful conduct apparently intended to harass and victimise a protected minority group", and
"[t]his review is concerned with the Applicants' enforceable right to access documents that contain evidence that persons occupying high public office abused and/or neglected their authority, and engaged in conduct which the Parliament of New South Wales has declared in various statutes to be illegal".

Applicants' failure to comply with s 36

Section 36 of the NCAT Act relevantly provides that: 36 GUIDING PRINCIPLE TO BE APPLIED TO PRACTICE AND PROCEDURE (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
The respondent asserts that the applicants failed to comply on time with every single direction made in these proceedings. This is not denied in the applicants' written submissions. To my own knowledge, the post-hearing proceedings were filed late: see par [8] of the primary decision. And I note that the applicants' costs submissions were late, also without explanation.
At the hearing of the applicants' application to re-open the proceedings on 29 November 2017, I indicated that I expected the applicants to abandon their attempts to obtain documents and government information in these proceedings that they had already obtained under summons in the related discrimination proceedings: see my decision Sheehy v Commissioner of Police, NSW Police Force [2017] NSWCATAD 349 at [35] and [36]. I indicated that, as all parties were represented by experienced counsel, I expected them to use their common sense about asking the Tribunal to embark on determining matters which were now otiose. I indicated that I saw no reason why, if some of the information sought in these proceedings had been made available to the applicants in the discrimination proceedings, why the relevant relief was still sought in these proceedings. Despite this expectation being made clear both on transcript and in an interlocutory decision, the applicants failed to narrow the scope of their claim.
I find therefore, at least to that extent, that is the failure to comply with the filing of directions in a timely way and the failure to narrow the scope of their claim, the applicant failed to comply with the duty imposed by s 36 of the NCAT Act. This is also a matter which is relevant in determining whether there are special circumstances warranting an award of costs.

Any other matter

I reject the submission that the failure to participate in a mediation justifies an award of costs. While mediation is to be encouraged, and even expected in modern litigation, it is understandable that on some occasions the personal relationship between parties has broken down so irretrievably as to make mediation difficult. There is no obligation to participate in mediation, although parties may be directed to do so. No such direction was made on this occasion.
I accept the submission that the applicants' allegations of corruption, fabrication of evidence, false complaints, maladministration, and the deliberate "cover up" of serious misconduct, amongst other serious contentions were found to be irrelevant to the administrative review I was called upon to conduct and resulted in the inefficient conduct of the proceedings: see primary decision at [44]. This too is a matter to consider in determining special circumstances.

Conclusion

The primary matters which weigh in a determination of whether there are special circumstances are:

the content and length of cross-examination of Chief Inspector Newton;
the applicant failing to comply with the directions of the Tribunal;
the applicants' various irrelevant allegations of police misconduct;
the content and length of voluminous evidence not relied on in submissions and irrelevant to the determination of these reviews,

all of which are discussed above.
I accept that all litigation entails some inefficiencies, and with the benefit of hindsight most litigation could be conducted more efficiently. Tactical decisions are made during the course of litigation which may not be successful. Parties do fail to comply with directions. And parties, and their legal representatives, do sometimes over emphasize, if not exaggerate, the strengths of their client's position. Nevertheless, when considered cumulatively, I am satisfied that these matters amount to special circumstances warranting an award of costs.
My primary reasons for this conclusion are that: 1. this was a matter which would have been completed in one day of hearing had there not been the equivalent of a whole day of cross-examination of Chief Inspector Newtown; and 2. the applicants filed and served voluminous but largely irrelevant affidavit evidence that they scarcely relied on, if at all.
I agree with the Commissioner that the approach taken by the applicants to the conduct of these review proceedings subjected him to unnecessary disadvantage. The applicants were legally represented by solicitors and counsel, and the Tribunal can reasonably expect that the litigation would have been conducted in a manner that sensibly narrowed the issues that were in dispute. I find that the applicants made a strategic decision not do so, causing the Commissioner an unnecessary disadvantage.

What costs should be ordered?

Section 60(4) of the NCAT Act provides that if costs are to be awarded by the Tribunal, "the Tribunal may determine by whom and to what extent costs are to be paid". This power extends to making what are known as "lump sum," costs orders: see for example Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48 at [25] to [27].
The Commissioner submits, in the interests of bringing these proceedings to an expedient conclusion and avoiding 'satellite litigation' about the quantum of costs (see O'Rourke v P&B Corporation Pty Ltd [2008] WASC 36; Lambert v Jackson [2011] FamCA 275 at [59]), that the Tribunal make a lump sum costs order. This he says will avoid assessment and taxation. The Commissioner submits that a party who obtains an order for costs on the ordinary basis will usually recover an amount in the realms of 60% to 70% of their total legal costs following assessment. In this case, the Commissioner presses for a lump sum costs order just under 60% of his total costs.
The Commissioner seeks a lump sum of $100,000. He justifies this on the following basis: In particular, with total costs incurred by the [Commissioner] just shy of $160,000, the [Commissioner] submits that a costs order in the amount of $100,000 (about 59.5% of total costs) involves a gross lump sum that is representative of what the [Commissioner] would otherwise achieve following taxation, if costs were payable on the ordinary basis. It should also be observed that the sum of $160,000 is the [Commissioner]'s legal costs only. If costs were awarded, the [Commissioner] would also be entitled to all of its costs that are incidental to the proceedings, including the time and expense of representatives from the [Commissioner] attending the hearings and providing instructions. These incidental costs are not being pursued in seeking the gross lump sum order, but they will be captured if an ordinary costs order is made.
I do not think that an award of costs in the lump sum of $100,000 is appropriate. The amount that is appropriate is the additional time wasted by the inefficient conduct of the proceedings (being the day-long cross-examination of Chief Inspector Newton), together with a component of wasted preparation in considering the applicants' irrelevant affidavit evidence.
In this respect I note the observations of the Supreme Court of Victoria in Lollis v Loulatzis (No 2) [2008] VSC 35 at [27] to [29]. The Court observed that there was authority which supported the proposition that where a party has by its conduct caused a case to take longer than it ought, it is appropriate that that party, upon succeeding at trial, should not be awarded the whole of its costs of the trial. The Court referred with approval to the comments of the Full Court of Victorian in Keddy v Foxall [1955] VR 320 at 323 - 324 where their Honours stated: The cases do show, we think, that in exercising his discretion on costs a Judge may have regard to conduct - not necessarily misconduct - of any party which is calculated to occasion unnecessary expense ...
The Court concluded at [29] that the principle in Keddy was particularly where trials took an unduly long period of time to complete. The Court observed that: it behoves trial judges to be conscious of the principle that a losing litigant ought not to be required to bear that portion of the successful party's costs which is attributable to conduct of the successful party which has unduly protracted the length of the trial.
I accept that those Victorian decisions were decisions in proceedings where the usual or general curial costs rules applied, that is that a successful litigant was entitled to their costs. However, I found the analysis to useful to the exercise of my discretion, having found that there are special circumstances warranting an award of costs. Having regard to the principle that parties should ordinarily bear their own costs, I consider that an amount of $10,000 adequately reflects the cost of the Commissioner's counsel and solicitor attending the hearing for Chief Inspector Newton's cross-examination and for preparation of the Commissioner's case in response to the applicants' affidavit evidence.
This amount should be paid equally by each of the applicants in their respective applications. I do not consider that any applicant should be jointly responsible for another applicant's costs. Nor do I consider that, because Mr Sheehy was seeking review of two decisions of the Commissioner, that he should bear a larger amount of costs. In my view, these unnecessary costs I have identified should be borne equally.

Orders 1. In proceedings 2016/00378368, the applicant is to pay the respondent's costs in the sum of $2,500. 2. In proceedings 2016/00378369, the applicant is to pay the respondent's costs in the sum of $2,500. 3. In proceedings 2016/00378371, the applicant is to pay the respondent's costs in the sum of $2,500. 4. In proceedings 2016/00378372, the applicant is to pay the respondent's costs in the sum of $2,500.

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: 24 May 2018

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Judgment (16 paragraphs)

Legislation Cited (3)

Cases Cited (14)

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