Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner of Police v Robinson (No 2) [2022] NSWCATAP 280 Hearing dates: On the papers Date of orders: 30 August 2022 Decision date: 30 August 2022 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member J Lucy, Senior Member Decision: (1) Dispense with a hearing on the question of costs pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (2) Order that the appellant pay the respondent the amount of $4,400 inclusive of GST for and towards the respondent's costs of the appeal within 30 days. Catchwords: COSTS – whether special circumstances exist warranting an order for costs – unsuccessful appellant, being a government body, sought leave to appeal as a test case in order to clarify the law in respect of the practice and procedure of medical examination of parties – whether lump sum order of costs is appropriate Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 36, s 50(2), s 60, s 60(3) Cases Cited: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Hamod v New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Marrickville Municipal Council v Moustafa (No 2) [2002] NSWCA 179 Mirvac North Sydney Office Holdings Pty Limited v The Australian Industry Group [2022] NSWCATAP 233 News v Cotes (No 2) [2019] NSWCATAP 235 Oshlack v Richmond River Council (1998) 193 CLR 72 Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 Texts Cited: None cited Category: Costs Parties: Commissioner of Police (Appellant) Glen Robinson (Respondent) Representation: Counsel: M Seck (Appellant) VM Heath (Respondent) Solicitors: Kingston Read (Appellant) File Number(s): 2021/00361525 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 355 Before: A Britton, Deputy President File Number(s): 2021/00038329 reasons for decision Introduction 1. On 22 April 2022, we delivered our decision in these appeal proceedings whereby the appeal was dismissed: see Commissioner of Police, NSW Police Force v Robinson [2022] NSWCATAP 121 (the Decision). 2. We directed the parties to bring in submissions and evidence in respect of any costs application the respondent wished to make. The respondent has applied for his costs of the appeal, and this is our decision in respect of this application. 3. There are three principal issues to be determined: 1. Whether or not to dispense with the hearing of the costs application; 2. Whether special circumstances exist warranting an order for costs; and 3. If so, whether a lump sum order for costs should be made. Should a hearing be dispensed with? 1. The parties were directed to include in their submissions, any submissions they wished to make on the question of whether or not the Appeal Panel should order that a hearing of the costs application be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). No party opposed such an order being made. 2. We are satisfied that, in respect of the respondent's costs application, the issues for determination can be adequately determined in the absence of the parties and it is appropriate to deal with the matter on the papers. 3. Accordingly, we have ordered that pursuant to s 50(2) of the NCAT Act a hearing of the respondent's costs application be dispensed with. Do special circumstances exist? Submissions of the parties 1. The respondent accepted that the ordinary principle governing this appeal is that each party is to pay his or her own costs. However, the Tribunal may award costs if it is satisfied that there are special circumstances warranting a costs order: see s 60 of the NCAT Act. 2. In determining whether there are special circumstances warranting a costs order, the Tribunal may have regard to the matters set out in s 60(3) of the NCAT Act. 3. 'Special circumstances' are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional: see eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [94]; Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135 at [37]. 4. A costs order is primarily to compensate and not to punish an unsuccessful party: see Oshlack v Richmond River Council (1998) 193 CLR 72 (Oshlack) per McHugh J at [67]. 5. The respondent relied upon the following matters as special circumstances justifying a costs order: 1. the appeal was premised on a fundamental misconception of the role and obligations of an expert and the role of the Tribunal as fact-finder (Decision at [94]); 2. the appellant led no evidence before the Tribunal below that a video recording would somehow interfere with the medical assessment or interfere with the appellant's first choice of medical expert (Decision at [100]); 3. the appellant led new evidence on the appeal without seeking leave and absent any explanation for the failure to lead it in the hearing below (Decision at [22]); 4. that new evidence, however, could not even plausibly support a case that video recording would unreasonably interfere with the medical assessment or interfere with the appellant's first choice of medical expert, as it related only to the proposed expert's personal concern to immunise himself from cross-examination and was in any event misconceived as to its practical effect (Decision at [104]–[107]; 5. the appeal was on a matter of practice and procedure and the appellant was opposing a procedure that would "facilitate the just, quick and cheap resolution of the real issues in the proceeding" as required by s 36 NCAT Act; 6. The appellant had accepted the respondent's offer to resolve the issue and then reneged on the agreement, which is contrary to the appellant's duty under s 36 of the NCAT Act and was unreasonable in the circumstances found by the Appeal Panel (Decision [109]-[110] and documents attached to the respondent's Reply 14 January 2022); 7. The appellant did not improve her position by the appeal; and 8. An appeal on a matter of practice and procedure that had been agreed to be resolved has unnecessarily prolonged the principal proceedings. 1. The substance of the appellant's response was as follows: 1. The Appeal Panel in the Decision accepted that there was uncertainty on the authorities and the appeal raised matters of general application warranting leave to appeal: see the Decision at [40]-[41]; 2. Accordingly, the appellant was not acting unreasonably in pursuing her appeal even though that may have prolonged the proceedings: citing Mirvac North Sydney Office Holdings Pty Limited v The Australian Industry Group [2022] NSWCATAP 233 at [43]; 3. There is nothing out of the ordinary in a party on appeal seeking to rely upon further evidence; 4. Pursuing the appeal was not contrary to the guiding principle in s 36 of the NCAT Act as the true position was that there was a legitimate dispute between the parties as to the subject of the appeal. Consideration 1. The appellant, in pursuit of a stay of the proceedings on appeal, sought to argue the matter at a level of generality so as to have it established in the practice and procedure of the Tribunal the general proposition that where a medical examination is requested by one party of another (the examinee), it is, without evidence needing to be led on the matter, unreasonable of the examinee to make it a condition of the examination that it be video recorded. It was submitted that this principle of general application flowed from an even broader general principle which the appellant urged upon the Appeal Panel that, except in exceptional circumstances or where there is good reason to depart from the general rule, the examinee should not be able to place any conditions on the nature of the medical examination if this is objected to by the medical practitioner in question. 2. As there is no clear authority on the Tribunal's practice and procedure with respect to medical examinations, we decided to grant leave to appeal. However, there are circumstances in this case to indicate that the desire of the appellant to clarify the law in this area of practice and procedure should not be at the expense of the respondent. 3. The appellant's first choice of medical expert was a Dr Walker, who objected to the medical examination being video recorded. After the Tribunal rejected the applicant's application for a stay, the appellant retained another expert, Professor Greenberg, who was willing to examine the respondent and for such examination to be video recorded: Decision at [109]. 4. This led to Professor Greenberg appointing 15 January 2022 as a time convenient to conduct a medical assessment of the respondent and the Professor did not object to that assessment being video recorded. Quite sensibly at that point the appellant accepted the respondent's offer to agree to attend on the date nominated by Professor Greenberg provided the medical assessment was video recorded. 5. It has not been suggested that such an assessment being made by Professor Greenberg instead of Dr Walker in any way prejudices the appellant's right or desire to defend the claim against her. 6. The parties agreed that such examination would be done by video link and the respondent would duly attend. When 15 January 2022 arrived, the respondent attended the appointment, but it was cancelled by the appellant and Professor Greenberg did not attend. 7. The respondent contends this was contrary to the agreement and the 'settlement' reached between the parties which resolved the issue of the conditions of the desired medical assessment. The respondent contends that the arrangement with Professor Greenberg was necessitated because of directions by the Tribunal that all of the relevant medical evidence be filed by a certain time. Subsequently, the appellant persuaded the Tribunal to vacate those directions in light of the appeal and accordingly, the appellant had the appointment cancelled. 8. Leaving aside the contention that such cancellation was in breach of the agreement between the parties, in our view it demonstrates that the appellant was seeking to pursue a matter it regarded as being of general importance beyond these proceedings. That is so, even though, if it continued with its agreement to have the respondent assessed by Professor Greenberg by video link, that would not have prejudiced the appellant's interests in defending the claim. 9. In our view, this constitutes a special circumstance warranting an order for costs against the appellant, even if prospects of success could be regarded as 'reasonable' on the point of principle. 10. Generally, where a government agency which is a frequent litigant seeks to pursue a test case on a matter of general application for its benefit, particularly on a matter of practice and procedure, against a natural person where that agency would not actually suffer prejudice from the orders in dispute, it should not be at the expense of the respondent, particularly where the respondent is successful on appeal and has no interest in clarifying the law: see A Goninan & Co Ltd v Gill [2001] NSWCA 77 at [60]; Marrickville Municipal Council v Moustafa (No 2) [2002] NSWCA 179. Had the application for leave been heard before the appeal, it would have been appropriate to grant leave on condition that the appellant pay the respondent's costs in any event: Marrickville Municipal Council v Moustafa (No 2) [2002] NSWCA 179. 11. Further, we accept the evidence of the respondent in his statement of 29 July 2022 that the appeal has delayed the hearing of his claim to return to the police force, which has caused him concern. We accept his evidence that being kept out of his chosen career 'saddens and disappoints' him. We also accept his evidence that he genuinely fears that the delay in the proceedings may be a factor against being able to return to policing. 12. In our view, these matters amount to special circumstances warranting a costs order against the appellant. Should a lump sum cost order be awarded? 1. Section 60(4) of the NCAT Act empowers the Tribunal to make lump sum costs orders: see News v Cotes (No 2) [2019] NSWCATAP 235 (Cotes). 2. We accept the respondent's summary of the principles for making a lump sum costs order as follows: 1. The power to award a lump-sum should only be exercised when the Appeal Panel considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 at [12]; 2. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing); Bechara at [13]; 3. A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Bechara at [14]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]; 4. The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod at [814]; Bechara at [15]. 1. These principles have been applied by the Appeal Panel: see, for example, Cotes. 2. We have before us the costs agreement between the respondent and his counsel, as well as counsel's fee note in the amount of $9,295 inclusive of GST. In our view, it is appropriate in this case to make a lump sum costs order in the amount claimed, being the amount of $9,295 discounted to $4,400 inclusive of GST. We do so for the following reasons. 3. The appeal was on an interlocutory matter of practice and procedure and, in the circumstances, for the respondent to occur the costs of assessment would involve additional expense and delay out of proportion to the appeal proceedings and the amount of costs in issue. 4. Further, having the parties undertake an assessment would be at to distract from the task of bringing the main proceedings to a hearing. 5. In our view, there is sufficient information in the fee note and the materials filed on the appeal to allow us to make a fair assessment of an appropriate sum on a broad-brush approach of the respondent's costs of the appeal. 6. Generally, it is consistent with the guiding principle in s 36 of the NCAT Act to avoid wherever it is consistent with justice with subjecting the parties to a costs assessment. This avoids the potential for a further dispute between the parties on a side issue. 7. Finally, the actual claim for costs on a lump sum has been discounted by more than half the costs otherwise apparent on counsel's fee note. The amounts disclosed in the fee note appear to us to be reasonable. Orders 1. The orders of the Appeal Panel are: 1. Dispense with a hearing on the question of costs pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Order that the appellant pay the respondent the amount of $4,400 inclusive of GST for and towards the respondent's costs of the appeal within 30 days. ********** 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: 30 August 2022