Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DVT v Commissioner of Police (No 2) [2022] NSWCATAP 5 Hearing dates: On the papers Date of orders: 11 January 2022 Decision date: 11 January 2022 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President M Harrowell, Deputy President Decision: 1. The Appeal Panel dispenses with a hearing of the application for costs pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The respondent's application for costs in respect of the appeal is dismissed. 3. The respondent's application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 is dismissed. Catchwords: COSTS – Special Circumstances – no special circumstances warranting an award of costs PRACTICE AND PROCEDURE – application for an order to prohibit the publication of solicitors charge rates provided in evidence in support of an application for costs – principle of open justice Legislation Cited: Administrative Decisions Review Act 1997(NSW) formerly the Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Freedom of Information Act 1989 (NSW) (repealed) Cases Cited: AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWADT 223 AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391 Cianfrano v Director General, NSW Department of Commerce [2008] NSWADTAP 1 DVT v Commissioner of Police [2021] NSWCATAP 337 DVT v Commissioner of Police (No 2) [2021] NSWCATAP 344 Shi Shi Cindy Lee v Dr Geoffrey Lee Jessica Talbert v Dr Geoffrey Lee & Sue Maree Olsen/Lee. Sue Maree Olsen v Shi Shi Cindy Lee, Jessica Talbert, GP Legal Solicitors [2014] NSWCATCD 181 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP Texts Cited: Nil Category: Costs Parties: DVT (Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Crown Solicitor (Respondent) File Number(s): 2021/00056044 formerly AP 21/02272 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 299 Date of Decision: 14 December 2020 Before: C Ludlow (Senior Member) File Number(s): 2020/00141477 REASONS FOR DECISION Background 1. On 29 October 2021 we dismissed an appeal in respect of a miscellaneous application by the appellant seeking an order in proceedings 2020/00178009 in the Administrative and Equal Opportunity Division that the respondent (Commissioner) be directed to provide a written statement of reasons that complies with s 49(3) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) formerly known as the Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act). We published written reasons for our decision: DVT v Commissioner of Police [2021] NSWCATAP 337 (principal reasons). 2. In doing so, we made orders permitting the parties to make any application for costs in connection with the appeal. 3. The Commissioner has applied for costs of this appeal. An order for costs is sought in the fixed amount of $7500. In addition, an order is sought to prevent the publication of various evidence put forward in support of the application for costs contained in an affidavit of Tram Nguyen affirmed 12 November 2021 (Nguyen affidavit). 4. The Nguyen affidavit provides evidence of costs incurred by the Commissioner in connection with the appeal. It is said the total of the time entries is $10,244.70. Of these costs it is also said that the Commissioner incurred an amount of $1,104.72 in connection with disputes concerning the content of the appeal book, request for extensions of time and the filing of submissions in reply by the appellant. 5. All applications are opposed by the appellant. 6. Each of the parties has provided written submissions. 7. Both parties agree an order should be made dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) so that the application for costs could be dealt with on the papers. We will make that order as we are satisfied that the issues for determination may be determined in the absence of the parties by considering their written submissions and other material lodged with the Appeal Panel. 8. There is no dispute that s 60 of the NCAT Act applies to this application. That section provides that each party is to pay their own costs although the Tribunal may make an order for costs if satisfied that there are special circumstances warranting such an award. Section 60(3) sets out matters to which the Tribunal may have regard in determining whether there are special circumstances. We dealt with what constitute special circumstances in DVT v Commissioner of Police (No 2) [2021] NSWCATAP 344 at [19] when considering the appeal against a cost decision at first instance. It is not necessary to repeat those matters here. Consideration 1. In the principal reasons at [5] we identified three grounds of appeal. These were (1) The Tribunal erred by misconstruing the application for miscellaneous matters dated 31 August 2020 to be an application seeking reasons under s 49 of the ADR Act. (2) The Tribunal erred by finding that there is only a power to direct a statement of reasons be given if no statement of reasons was given under s 49. (3) The Tribunal denied the Appellant procedural fairness by refusing to make an order directing the Respondent to provide a statement of reasons that complies with s 49(3). 1. In the principal reasons at [29] we said: (1) Ground 1: we are in agreement with the Appellant that the Tribunal may have misconstrued the Reasons Application as being made under s 49. However we are in agreement with the Respondent that there was no error in the order dismissing the Reasons Application. (2) Ground 2: this ground is misconceived in that the Tribunal did not find that there was no power under the Civil & Administrative Tribunal Act to direct that a statement of reasons be given. Rather the Tribunal declined to make a clear finding of the existence of such a power on the basis that the order proposed would not facilitate the just, quick and cheap resolution of the real issue between the parties. There is no error in the Tribunal's reasoning. (3) Ground 3: in our view there is no procedural unfairness in that the Tribunal dealt comprehensively with each of the submissions of the Appellant. To the extent that we consider that the Tribunal has power to order an adequate statement of reasons be given (analogous to the reasoning of Deputy President Hennessy) we would not have made such an order. This is because having regard to the right of the Respondent to maintain client legal privilege there was no evidence or indeed a submission to the effect that further reasons could have been given without impinging upon client legal privilege. The result, in our opinion, is that the orders made were correct, and accordingly that the appeal should be dismissed. 1. In reaching these conclusions we analysed the Tribunal's statement that there appeared to be a conflict between what was said by Deputy President Hennessy in AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWADT 223 and what was said by Davies J in AVS Group of Companies Pty Ltd v Commissioner of Police [2009] NSWSC 1391(the AVS decisions) concerning the power to require a further statement of reasons. This related to whether the obligation under s 49 is superseded where there arises in its place an obligation under s 58 (1)(a) to provide a statement of reasons for the purpose of proceedings in the Tribunal and whether the Tribunal has power to make an order requiring the provision of a statement of reasons in proceedings before it. We determined there was no conflict but, as recorded in our reasons concerning ground 3, any power the Tribunal had to direct reasons utilising its powers under the NCAT Act should not be exercised in the present case due to the earlier decision concerning legal professional privilege. Are there special circumstances warranting an order for costs in the appeal? 1. In relation to our decision, the Commissioner accepts that the respondent was successful on ground 1 however submits that there are special circumstances warranting the departure from the rule that each party is to pay their own costs. 2. Three bases are put forward by the Commissioner as constituting special circumstances that warrant an award for costs in his favour. 3. First is the relative strength of the claims made by each party and a contention by the Commissioner that the appeal was frivolous. Reliance is placed on s 60(3)(c) and (e) of the NCAT Act. 4. The Commissioner says that even though the Appeal Panel found the Tribunal erred in its construction of the appellant's request for reasons, "the appellant was still unsuccessful in having the Tribunal's decision overturned due to the futility of the relief that he sought". Reference is made to [26]-[28] of the principal reasons. The Commissioner then says that the Appeal Panel should be satisfied that the appeal "was 'frivolous', that is the appeal was 'paltry or trifling'" in the same manner as determined by the Appeal Panel in Shi Shi Cindy Lee v Dr Geoffrey Lee Jessica Talbert v Dr Geoffrey Lee & Sue Maree Olsen/Lee. Sue Maree Olsen v Shi Shi Cindy Lee, Jessica Talbert, GP Legal Solicitors [2014] NSWCATCD 181at [31]-[32]. 5. We do not accept that the lack of success of the appellant should result in the appeal being characterised as futile or frivolous or result in an award for costs in favour of the Commissioner. 6. As accepted by the Commissioner, the appellant had some success. We found that the Tribunal misconstrued the appellant's original application. As such, the Tribunal dealt with the application in a manner different to that of the Appeal Panel, the appellant losing his challenge to the dismissal order for different reasons. Also, we think the lack of a clear finding by the Tribunal as to its powers and the Tribunal's statement concerning an apparent conflict in the reasons of the Tribunal compared with those of the Supreme Court in the AVS decisions provided some basis for the appeal that was made. 7. Secondly, the Commissioner relies upon an alleged failure of the appellant to comply with his duty under s 36(3) of the NCAT Act. Reliance is placed on s 60(3)(f) of the NCAT Act. 8. The conduct pointed to consists of: 1. the fact of multiple proceedings before the same parties about similar issues and costs; 2. the delays caused to the proceedings below in their resolution "due to prosecution by the appellant, on several fronts, of applications for relief that have, at all stages of each proceedings, been recognised as futile"; 3. the appellant's lateness in filing his submissions in the appeal and "unreasonable resistance to including the respondent's submissions and other relevant documents in the appeal book" which "has occasioned otherwise avoidable costs to be incurred by the [Commissioner]". Here, reliance is placed on the Nguyen affidavit, paras 8-11 and annexures B-D. 1. In short the respondent says "the appellant's conduct in prosecuting futile applications is inconsistent with his duty to cooperate with the Tribunal to give effect to the guiding principle". 2. We do not accept these submissions. 3. Firstly, the fact of multiple proceedings and multiple applications and appeals is not a reason in the present case to find special circumstances justifying an award for costs in favour of the Commissioner in this appeal. Costs are compensatory in nature and, as provided in s 60(1) of the NCAT Act, are not usually awarded by the Tribunal in connection with administrative review proceedings. The mere exercise of a right of appeal does not make these proceedings out of the ordinary and for the reasons above the appeal should not be characterised as futile or frivolous. 4. As to any delay in resolving the proceedings below, this is an issue to be taken up before the Tribunal at first instance. No stay was granted by the Appeal Panel preventing the proceedings being brought to finality notwithstanding the lodgement of this appeal. 5. As to the issues of lateness in connection with filing submissions and/or the so-called "unreasonable resistance to including the [Commissioner's] submissions and other relevant documents in the appeal book" there has been no substantive delay to the just quick and cheap resolution of the real issues in dispute. Further, the matters now put forward in support of the application for costs could, to the extent necessary, have been dealt with in written submissions by the Commissioner without expending any money in debating with a self-represented person what documents should be included. Certainly, apart from an exchange of correspondence on the topic, these matters did not impact upon the finalisation of this appeal on a timely basis. 6. Finally, a submission is made about the financial capacity of the appellant to pay costs. Reliance is placed on s 60(3)(g) of the NCAT Act. 7. The appellant made no submission in reply concerning its financial capacity to pay any costs order and in the context of this application for costs this matter seems wholly irrelevant. 8. It follows from the above we are not satisfied special circumstances have been established warranting an order for costs and we dismiss the application. Section 64 Order 1. As to the application to prohibit the publication of the Crown Solicitor's Office hourly charge rates, an order is sought under s 64(1)(c) of the NCAT Act. 2. In support of this application the Commissioner referred to various decisions of the Tribunal and the former Administrative Decisions Tribunal including Cianfrano v Director General, NSW Department of Commerce [2008] NSWADTAP 1 (Cianfrano). In doing so, the Commissioner accepted the principle of open justice but submitted that "disclosure of the hourly rates charged by the Crown Solicitor's Office could reasonably be expected to have an adverse effect on the business affairs of the Crown Solicitors Office in so far as the disclosure may provide an advantage to third parties when negotiating the hourly rates. 3. Having set out various considerations identified in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP as relevant to the exercise of a similar power under s 75(2) of the ADT Act the Commissioner submitted: 54. Consideration (d) directs attention to the fact that the respondent does not seek to prevent disclosure to the appellant or to exclude an open hearing in relation to the substance of the costs application. The only information over which a non-publication order is sought is that which tends to disclose the hourly rates charged by the Crown Solicitor's Office, such as the hourly rates of a solicitor or the charged amount in respect of an item together with the time spent on that item. In these circumstances, the [Commissioner] submits that making the orders sought poses no threat to the open justice principle (consideration (a)). 55. The [Commissioner] acknowledges that preserving the confidentiality of the charge-out rates of the Crown Solicitor's Office may serve the "private" interests of the Crown Solicitor's Office, but consideration (f), together with consideration (c) and (d), acknowledge that that is not fatal to the application for an order under s 64. 1. The Commissioner has chosen to place evidence of costs before the Appeal Panel to support its claim for a lump sum award. Such material would be relevant to deciding what amount should be awarded if we are inclined to make a lump sum award for costs. If these proceedings had been determined by way of open hearing, this evidence would have been tendered and cross examination would have been permitted. 2. As such, there seems no basis to make an order to keep this evidence confidential. Indeed, the evidence itself would have been highly relevant to understanding any reasons for decision if it had been appropriate to make a lump sum award of costs. 3. As to Cianfrano, this case involved an application for access under the now repealed Freedom of Information Act 1989 (NSW), which was opposed. It was not a case involving evidence tendered in Tribunal proceedings in which an order for costs was sought based on that evidence. As such it has not relevance to the present application. 4. Accordingly the application for an order under s 64 of the NCAT Act is dismissed Orders 1. The Appeal Panel makes the following orders: 1. The Appeal Panel dispenses with a hearing of the application for costs pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The respondent's application for costs in respect of the appeal is dismissed. 3. The respondent's application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 is 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: 11 January 2022