Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner of Police v EMB (No.2 - Costs of Application for a Stay) [2021] NSWCATAP 60 Hearing dates: On the papers Date of orders: 18 March 2021 Decision date: 18 March 2021 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: (1) The respondent's application that the appellant pay his costs of the Application for a Stay is dismissed. Catchwords: APPEAL – Application for a Stay – costs – whether "special circumstances warranting an award of costs" within the meaning of s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) established – exercise of discretion Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (No 2) [2016] NSWCATAP 168 Texts Cited: Nil Category: Costs Parties: Commissioner of Police (Appellant) EMB (Respondent) Representation: Counsel: C Mantziaris (Appellant) C Nowlan (Respondent) Solicitors: Maddocks Lawyers (Appellant) Johnson & Sendall (Respondent) File Number(s): 2020/00371166 (AP 20/48252) Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the publication of the name of the respondent is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 255 Date of Decision: 20 October 2020 Before: N Isenberg, Senior Member File Number(s): 2020/00152964 REASONS FOR DECISION Background 1. This decision concerns an application for costs made by the respondent in an appeal from a decision of the Administrative and Equal Opportunity Division of the Tribunal. 2. The nature of the appeal, and the issues it raises, are dealt with in my reasons for refusing the appellant's Application for a Stay (Commissioner of Police, NSW Police Force v EMB [2020] NSWCATAP 262) and do not need to be repeated here. 3. The respondent, having succeeded in opposing the appellant's stay application, sought his costs of that application ("the costs application"). In determining the stay, I gave each party directions to lodge their submissions on the costs application. With the consent of the parties, I dispensed with a hearing of the costs application and have determined it on the written submissions without an oral hearing. 4. These are my reasons for refusing the costs application. 5. References in these reasons to legislation are to the Civil and Administrative Tribunal Act 2013 (NSW) unless otherwise stated. Power to award costs 1. Section 60(1) creates the general rule that each party to proceedings of this nature are to pay their own costs. I may only order costs "if satisfied that there are special circumstances warranting an award of costs": s 60(2). Section 60(3) sets out a non-exhaustive list of factors that I may consider in deciding whether there are special circumstances warranting an award of costs, as follows: 1. whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, 2. whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, 3. 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, 4. the nature and complexity of the proceedings, 5. whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, 6. whether a party has refused or failed to comply with the duty imposed by section 36(3), 7. any other matter that the Tribunal considers relevant. 1. The term "special circumstances" is not defined by the Act. It has been interpreted to mean circumstances that are out of the ordinary but not necessarily extraordinary or exceptional. 2. Even if the respondent establishes that special circumstances exist, I still need to consider whether they warrant an award of costs, such that I should exercise my discretion to make an order and determine what order to make: Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224 at [21], [24]. 3. The discretion to award costs must be exercised judicially, having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs: eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]–[31]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (No 2) [2016] NSWCATAP 168 at [16]. Consideration 1. The respondent says that he incurred costs in obtaining legal advice prior to, and for and representation at, the hearing of the stay application. 2. In support of the costs application, the respondent submits that it is important to ensure that costs are not prohibitive in administrative review proceedings (and I infer, subsequent appeals) to ensure that the correct and preferable decision may be arrived at. This may be accepted, but it does not displace the effect of s 60. 3. The respondent otherwise submits, without significant elaboration, that "each of [s 60] (a), (b), (c), (e), (f) and (g) applies to the appellant's conduct of the proceedings". 4. The closest that the submissions go to an explanation of the basis upon which he says that there are special circumstances warranting an order for costs is a complaint that the appellant failed to perform an internal review of his application, leading to the proceedings which are the subject of the appeal, and an allegation that the appellant failed to comply with the Tribunal's order to issue him with a firearms licence. 5. To the extent that this is a submission that the appellant has conducted the proceedings in a way that unnecessarily disadvantaged the respondent or has been responsible for prolonging unreasonably the time taken to complete the proceedings, I reject that submission. 6. What I need to consider is the appellant's conduct in relation to the stay application and, arguably, the appeal, not prior alleged conduct. 7. As I found when dismissing the stay application, the Notice of Appeal raised what I considered to be arguable grounds. Whilst the respondent submits that the stay application was frivolous and vexatious, that is not consistent with my decision in the stay application, and there is nothing before me that persuades me to a different view. 8. The stay application itself was conducted by each party expeditiously, on the first return date of the listing of the appeal for directions. Both parties made concise written submissions following the directions made, which they elaborated upon at the hearing. 9. Self-evidently, there is nothing out of the ordinary in one party to a stay application being unsuccessful. 10. Finally, in case it is thought to have been overlooked, I should record that the respondent also submitted that "the Appellant may be attempting to take advantage of its superior financial position and bleed the Respondent dry." That assertion, advanced through the respondent's counsel, goes far beyond any finding I could properly make on the material before me. It is, on that basis, inappropriate and, ultimately, unpersuasive. 11. On that basis, I am not satisfied that special circumstances which warrant an award to the respondent of his costs from the appellant have been demonstrated. 12. The costs application should be dismissed. ********** 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: 18 March 2021