Nastav v Commissioner of Police, NSW Police [2007] NSWADT 291

CITATION: Nastav v Commissioner of Police, NSW Police [2007] NSWADT 291

DIVISION: General Division

APPLICANT Stephen Nastav PARTIES: RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 063162

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 29 June 2007

DATE OF DECISION: 13 December 2007

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Security Industry Act 1997 Security Industry Regulation 1998

Brooks Maher v Cheung [2001] NSWADT 18 Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 CASES CITED: Habak v Commissioner of Police [2006] NSWADT 213 Hutchings Electrical v Director General, Department of Fair Trading (No. 2) [2002] NSWADT 255 Nastav v Commissioner of NSW Police [2006] NSWADT 215 Raethel v Director-General, Department of Education and Training [2000] NSWADT 56

Q Nguyen, barrister REPRESENTATION: W Pisiani, solicitor

ORDERS: The Commissioner to pay Mr Nastav's legal costs, as assessed or agreed, from 28 July 2006.

REASONS FOR DECISION Introduction 1 On 13 April 2006, Mr Nastav sought external review of a decision of the Commissioner of Police, NSW Police ('the Commissioner') to revoke his Class 1ABC, Class 2B and Master Security Licence that had been issued by the Commissioner pursuant to the Security Industry Act 1997 ('the SI Act'). There were two grounds relied on by the Commissioner in making his decision. These were that Mr Nastav was no longer a fit and proper person to hold the licences and that it was not in the public interest for Mr Nastav to hold these licenses: section 26(1)(c) and (d) of the SI Act and clause18 of the Security Industry Regulation 1998. 2 On 21 April 2006, on the application of Mr Nastav, Deputy President Magistrate Hennessy stayed the decision of the Commissioner pending the determination of Mr Nastav's application before the Tribunal. 3 On 27 April 2007, by consent, I made an order that the decision of the Commissioner be set aside. The matter had a protracted history as the Commissioner sought to rely on criminal intelligence reports and other criminal information to support his decision and furthermore, in line with section 15(7) of the SI Act the Commissioner sought to place this material before the Tribunal on a confidential basis without Mr Nastav or his legal representative having access to the reports and information or any knowledge of what was contained therein. By consent, a hearing was conducted on 10 May 2006 on the preliminary issue of the Commissioner's application that the Tribunal make a confidentiality order under section 75 of the Administrative Decisions Tribunal Act 1997 in regard to the information and reports relied on by the Commissioner in his decision. At this hearing Mr Nguyen, counsel for Mr Nastav, argued that the orders sought by the Commissioner would in effect deny Mr Nastav procedural fairness, which the tribunal was bound to provide under section 73(2) of the Administrative Decisions Tribunal Act 1997. 4 On 28 July 2006, I determined that with the exception of one document(s), the Tribunal should dismiss the Commissioner's application for confidentiality orders in regard to the material on which the Commissioner sought to rely: see Nastav v Commissioner of NSW Police [2006] NSWADT 215. The application was refused on grounds of denial of procedural fairness. 5 Notwithstanding this decision, the Commissioner continued to rely on document(s) that I had indicated were confidential in nature and which would not ordinarily be disclosed. The Commissioner also sought to supplement this material with further criminal intelligence material. Mr Nguyen reiterated his earlier submissions and also relied on a then recent decision of Deputy President Magistrate Hennessy in Habak v Commissioner of Police [2006] NSWADT 213. In that decision Her Honour held that section 15(7) of the SI Act could not be used by the Commissioner to deny natural justice to an existing licence holder when determining to revoke that person's licence. On 21 November 2006, the parties consented to the tribunal determining the application on the papers, which included the additional confidential material filed by the Commissioner. 6 At all times Mr Pisani, for the Commissioner, advised the Tribunal that in the event the tribunal rejected the Commissioner's application for confidentiality in regard to the criminal intelligence reports and information, the Commissioner would withdraw this material. At the same time, Mr Pisani conceded that the Tribunal would be required to set aside the Commissioner's decision the subject of review as there would be no material before it to support the Commissioner's decision. 7 At my direction, the Registry re-listed the matter for further directions on 27 April 2007. At this directions hearing I advised the parties that in my opinion the principles set out by the High Court in Veal v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 applied equally to the current application and on those principles to deny Mr Nastav an opportunity to know the content of the allegations made against him in the criminal intelligence reports and information would be a denial of natural justice. I explained that on further consideration I had formed the view that the additional material on which the Commissioner had sought to rely was in effect no different to the material that was the subject of my decision on the preliminary issue and for which an order of confidentiality was not justified. After seeking further instructions in light of my findings, Mr Pisani, informed the tribunal that the Commissioner would withdraw the material he sought to rely on and that the Commissioner would consent to his decision, the subject of review, being set aside. 8 When the matter was brought back for directions, Mr Nastav was not legally represented. However, on 17 May 2007, Mr Nguyen made a written application for costs on behalf of Mr Nastav. A similar application had been made by Mr Nguyen on 6 October 2006. In light of this earlier application, I set a timetable for the filing and serving of material in respect to Mr Nastav's application for costs and I requested the Registrar to advise the parties accordingly. Material was provided in accordance with these directions by Mr Nguyen on behalf of Mr Nastav. No submissions were received by the Commissioner. Principles governing costs 9 The Tribunal has no inherent power to award costs. Its power to award costs is set out in s.88 of the Administrative Decisions Tribunal Act 1997, which relevantly provides that 'the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs'. (italics added) 10 This power is a discretionary power and in order to obtain a cost order an applicant has two hurdles to overcome. The first hurdle is to satisfy the tribunal that there are 'special circumstances' and the second hurdle is to satisfy the tribunal that these circumstances warrant an award of costs: see Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29]. 11 'Special circumstances' have been defined as 'circumstances that are out of the ordinary, but without having to be extraordinary or exceptional'. It is well established that mere success in a review application does not constitute special circumstances: see Brooks Maher v Cheung [2001] NSWADT 18 at [11] and Hutchings Electrical v Director General, Department of Fair Trading (No. 2) [2002] NSWADT 255 at [18]. In Brooks the Tribunal noted that while the circumstances which would or would not warrant an award of costs could not be exhaustively listed, '… where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted'. 12 The power to order costs should not be used as 'some kind of sanction to punish agencies for poor administration', and the tribunal should not embark on 'a general enquiry into the way in which the agency dealt with the Applicant': Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 at [56] – [58]. 13 Practice Note 12 (reissued on 11 May 2005) provides that 'special circumstances' which may warrant an order for costs under section 88(1) of the Administrative Decisions Tribunal Act 1997 are where 'a party has conducted the proceedings in the way that disadvantaged another party to the proceedings'. It cites the following examples of such conduct: '(i) failure to comply with an order or direction of the Tribunal without reasonable excuse; (ii) failing to comply with this Act, the regulations, the rules or enabling enactment; (iii) asking for an adjournment as a result of (i) or (ii); (iv) causing an adjournment; (v) attempting to deceive another party or the Tribunal; (vi) vexatiously conducting the proceedings; (vii) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; and (viii) 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.' Special Circumstances 14 Mr Nastav argues that the proceedings themselves are sufficient to constitute special circumstances. He asserts that it was a decision that effectively took away his livelihood and that of his business, without Mr Nastav knowing the factual basis on which the decision was made. That is, it was a decision made without any due regard to procedural fairness which the Commissioner sought to perpetuate during the course of the hearing before the tribunal. The Commissioner, he asserted, was wholly unjustified in his approach from the beginning as there was no basis in law or fact for making his original decision and Mr Nastav had been vindicated by the outcome of the application in that he had at all times argued that the Commissioner could not proceed as he had done. 15 In my opinion, having regard to the abovementioned principles in regard to what constitutes 'special circumstances', the history of this application does give rise to special circumstances. These special circumstances arose when the Commissioner sought to continue to rely on confidential criminal intelligence reports and information notwithstanding my decision of 28 July 2006. In that decision at [33] I found that the majority of the documents did not contain anything of a sensitive nature which would justify a confidentiality order under section 75(2) of the Administrative Decisions Tribunal Act 1997. Appended to my decision were confidential reasons in regard to these findings. Accordingly, the Commissioner was aware of the basis on which I had made my findings and in relation to which documents those findings related. Notwithstanding these findings, which were not appealed by the Commissioner, he again sought to rely on material that was of a nature similar to those for which an application for confidentiality was refused. 16 Even if it were to be accepted that there was an arguable case as to whether the Commissioner, by reason of section 15(6) and (7) of the SI Act could seek orders that the Tribunal make a confidentiality order under section 75 of the ADT Act where the Commissioner had revoked a security licence on the basis of criminal intelligence material, any such argument would not succeed following the decision of Deputy President Magistrate Hennessy in Habak (supra), which was published on 11 August 2006. Again the Commissioner did not appeal this decision. It is noted that amendments were subsequently made to the SI Act in regard to criminal intelligence material. It is unnecessary to consider these any further. Do the special circumstances warrant an order for costs? 17 In my opinion the special circumstances in this application do warrant an order for costs as the conduct of the Commissioner prolonged unreasonably the time taken to complete the proceedings. However, that order should be reflective of the fact that the special circumstances did not arise until after 28 July 2006. 18 Accordingly, the appropriate order is that the Commissioner be required to pay Mr Nastav's legal costs, as assessed or agreed, from 28 July 2006.