Miriani v Commissioner of Police, NSW Police Force [2013] NSWADT 59

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Miriani v Commissioner of Police, NSW Police Force [2013] NSWADT 59 Hearing dates: On the papers Decision date: 13 March 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The Applicant it to pay the amount of $980 towards the costs that the Respondent incurred in relation to the dismissal application. That amount is payable 28 days after the date of these reasons. Catchwords: Costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Cases Cited: AT v NSW Police [2010] NSWCA 131 Miriani v NSW Police Force [2012] NSWADT 149 Category: Costs Parties: Joe Miriani (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: J Miriani, Applicant in person C Tipene, Sparke Helmore File Number(s): 113153 & 113185

reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): On 3 July 2012 I dismissed these matters pursuant to section 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") for want of prosecution. My reasons for decision are published as Miriani v NSW Police Force [2012] NSWADT 149. 2The Respondent now seeks an order for the Applicant to pay the Respondent's costs.

Tribunal's power to award costs 3Section 88 of the ADT Act provides the Tribunal has power to award costs as follows: 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b)the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. 4As can be seen from the terms of subsection 88(1), the general rule is that each party pay its own costs of the proceedings. However, the Tribunal does have power (i.e. a discretionary power) to award costs if it is satisfied that it is fair to do so, having regard to the matters set out in subsection 88(1A). 5In AT v NSW Police [2010] NSWCA 131, the Court of Appeal considered the application of section 88 of the ADT Act. At paragraph [26], the Court of Appeal held that the criterion of fairness was "not qualitatively different" from "the exercise of an unfettered discretion". At [33], the Court emphasised the general principle that each party should bear its own costs adding that: Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in subs (1A), but subject to the generality of para (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act.