Civil and Administrative Tribunal New South Wales Medium Neutral Citation: PSG Security Group Pty Ltd v Commissioner of Police, NSW Police Force (No 2); ERA Security Group Pty Ltd v Commissioner of Police, NSW Police Force (No 2) [2023] NSWCATOD 11 Hearing dates: Determined on the papers Date of orders: 03 February 2023 Decision date: 03 February 2023 Jurisdiction: Occupational Division Before: L Andelman, 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: LICENSING – Security Industry Act – security licence – fit and proper person COSTS – administrative review proceedings – no special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 PSG Security Group Pty Ltd and ERA Security Group Pty Ltd v Commissioner of Police [2022] NSWCATOD 164 Texts Cited: None Cited Category: Costs Parties: PSG Security Group Pty Ltd (Applicant) ERA Security Group Pty Ltd (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: E Vuu (Applicants) D Birch (Respondent) Solicitors: McGirr & Associates (Applicants) Crown Solicitor (Respondent) File Number(s): 2022/00194998 2022/00195007 Publication restriction: Nil REASONS FOR DECISION 1. On 9 December 2022 the Tribunal in PSG Security Group Pty Ltd and ERA Security Group Pty Ltd v Commissioner of Police [2022] NSWCATOD 164 decided to affirm the decision under review and provide an opportunity for the parties to make submissions on costs. 2. The respondent seeks costs on the basis of s60(3) of the Civil and Administrative Tribunal Act 2013 (CAT Act). The applicants oppose the making of an order for costs against them. The parties have indicated their agreement to the costs issue being determined on the papers. Having reviewed all the materials I am satisfied that this is matter that can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing. 3. For the reasons below, the Tribunal has found that there are no special circumstances that merit an order for costs. The Tribunal's power to award costs 1. Section 60 of the CAT Act relevantly provides: (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. (4) If costs are to be awarded by the Tribunal, the Tribunal may— (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section-- "costs" includes-- (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. The starting position is that each party to proceedings in the Tribunal is to pay the party's own costs. The Tribunal has discretion to award costs but only if satisfied that there 'special circumstances' warranting such an order. 2. In AIN v Medical Council of New South Wales [2015] NSWCATAP 241 the Appeal Panel stated: 145. The meaning of the term "special circumstances" has been the subject of several decisions in the Appeal Panel (see for example Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Sahade v Owners SP 62022 [2015] NSWCATAP 225; Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 and Gaynor v Burns [2015] NSWCATAP 150). Those cases show that the expression "special circumstances" means circumstances which are out of the ordinary but not necessarily extraordinary or exceptional. Of course, each case will depend on its own facts and the Tribunal may "in a structured exercise of discretion, have regard to the criteria in s 60(a)-(g)": Gaynor v Burns [2015] NSWCATAP 150 at [18]. 146. When one has regard to the criteria in s 60(3)(a)-(g) it is clear, in our opinion, that the conduct of a party, including their subjective motives and conduct of the litigation, can be a relevant factor for the Tribunal to take into account. That subjective motive or conduct could be relevant to most of the criteria set out in s 60(3): s 60(3)(a) – whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party; s60(3)(b) – whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; s 60(3)(c) – the relative strengths or weaknesses of the claims of the parties and whether a claim of a party has no tenable basis in fact or law; s 60(3)(e) whether the proceedings were frivolous or vexatious; and s 60(3)(f) – whether a party has failed or refused to comply with the statutory obligation of co-operation imposed by s 36(3) of the Act. Additionally, a party's subjective motives, conduct or behaviour in relation to proceedings before the Tribunal could be relevant to the undefined "other matters" criteria pursuant to s 60(3)(g). Submissions on costs 1. The respondent submit that the applicants' conduct of referring an application to the Supreme Court and its position in regard to s15(2C) of the Security Industry Act 1997 (SI Act) was 'misconceived' and 'lacking in substance' within the meaning of s60(3)(e) of the CAT Act as the referral to the Supreme Court was made late, without explanation and the applicants had been on notice that the respondent relied on s15(2C) of the SI Act throughout the proceedings before the Tribunal. 2. The applicants submitted that there were no 'special circumstances' to make an award of costs as there was a real dispute about a question of law which warranted the decision to refer the matter to the Supreme Court and the legal arguments made in these proceedings. The applicants also submitted that the matter was conducted efficiently and that there was limited judicial consideration of the relevant provisions of the SI Act and Security Industry Regulation 2016 (NSW) (SI Regulation). Consideration 1. In this Tribunal the applicants challenged the legality of the decisions made by the respondent on two grounds. First, whether on its proper construction, cl 13(1) of the SI Regulation empowered the respondent to mandatorily revoke the licences of corporations. Secondly, in determining an application for review under s 63 of the Administrative Decision Review Act 1997, whether the respondent can rely upon a different statutory power, namely s15(2C) of the SI Act before the Tribunal as it was not utilised to make the original adverse decisions against the applicants. 2. While ultimately, the Tribunal rejected the applicants' legal arguments, it could not be said that the legal arguments were sufficiently misconceived or lacking in substance to be considered as special circumstances. The respondent did not submit that there was no tenable basis in law for the applicants' arguments. 3. The Tribunal also takes into account that the applicants conducted the proceedings efficiently, complied with orders made by the Tribunal and that the hearing was listed for two days but was finalised in half a day. Order 1. The Tribunal makes the following orders: 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. ********** 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: 03 February 2023