Dare v SafeWork NSW (Costs) [2021] NSWCATAD 254

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dare v SafeWork NSW (Costs) [2021] NSWCATAD 254 Hearing dates: On the papers Date of orders: 30 August 2021 Decision date: 30 August 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Senior Member Decision: (1) Under s 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing of the costs issue in this matter. (2) No order as to costs. Catchwords: COSTS – administrative review proceedings - no special circumstances found that merit an order for costs. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Arles 2014 Work Health and Safety Regulation 2017 Cases Cited: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 Dare v Safework NSW [2021] NSWCATAD 12 Texts Cited: Nil Category: Costs Parties: Trevor William Dare (Applicant) SafeWork NSW (Respondent) Representation: Solicitors: Everingham Solomons (Applicant) Department of Customer Services, Legal (Respondent) File Number(s): 2020/00191704 Publication restriction: None

Reasons for decision

Background. 1. Following the decision made by the Tribunal in Dare v Safework NSW {2021] NSWCATAD 12, Mr Dare has applied for an order for costs under section 60 of the Civil and Administrative Tribunal Act 2013 (the CAT Act). That decision determined an administrative review application made by Mr Dare with respect to a decision by Safework NSW to cancel his accreditation as a high risk work license assessor under the Work Health and Safety Regulation 2017 (NSW) (the Regulation) and to disqualify him from reapplying for accreditation five years. 2. The determination by the Tribunal was made on the papers. The Tribunal set aside the decision made by Safework NSW and instead suspended Mr Dare's accreditation from 1 June 2000 until the date of the decision. The effect of this was that Mr Dare regained his accreditation when the decision was made. The formal orders made by the Tribunal were: (1) Pursuant to Section 50(2) of Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with an oral hearing in this matter. (2) The decision of SafeWork NSW to cancel Mr Dare's accreditation as a high risk work licence assessor and to disqualify him from reapplying for a period of 5 years is set aside. (3) In its place the Tribunal suspends Mr Dare's accreditation as a high risk work licence assessor from the period from 1 June 2020 until now, with the result that Mr Dare has now served his suspension in full. (4) SafeWork NSW is to restore Mr Dare's accreditation documents to him forthwith. 1. Following publication of the decision Mr Dare's solicitors wrote seeking an order for costs. On 4 February 2021 I made the following orders: 1 The Tribunal has been advised that the applicant wishes to seek an order for costs in this matter. The Tribunal notes that the general rule under section 60 of the Civil and Administrative Tribunal Act 2013 is that each party pays their own costs. Before the Tribunal can make an order for costs it must be satisfied that there are special circumstances warranting such an order. 2 If the applicant, after considering the provisions of section 60, still wishes to seek costs he should file and serve a written application to that effect with submissions in support (limited to 2000 words) by 25 February 2021. 3 The respondent shall file and serve any submissions in response (limited to 2000 words) by 18 March 2021. 4 The parties submissions should address whether the issue of costs can be determined without a hearing on the materials supplied. 5 The applicant shall file and serve any submissions in reply (limited to 1000 words) by 1 April 2021. 6 The cost application is then to be referred to me to determine if it can be decided on the papers and, if so, to determine it. 7 If the applicant decides not to proceed to seek an order for costs he should advise the Tribunal and the respondent of that decision by 25 February 2021. 1. The parties have since filed submissions on the issue of costs, with Safework NSW's submissions, dated 14 April 2021, being late. On 15 April 2021, Mr Dare's representative wrote to the Tribunal opposing an extension of time being granted for the late filing of those submissions stating that the applicant had suffered from being without his accreditation and would be further prejudiced by the delay occasioned if an extension of time were granted. Of the Tribunal's own motion, I extended time so that the respondent's submissions were filed on time. It would have been unjust to proceed to determine the cost issue disregarding the respondent's submissions. I also extended time for Mr Dare to filed submissions in reply. None have been received. 2. For a more complete understanding of the proceedings regard should be had to decision I made on the substantive application: see Dare v Safework NSW {2021] NSWCATAD 12. I do not intend to repeat or explain matters traversed in that decision here. It speaks for itself.