Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Monte v Commissioner of Police, NSW Police Force [2013] NSWADT 139 Hearing dates: On the papers Decision date: 14 June 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The Applicant is to pay the Commissioner's costs of and incidental to these proceedings on a party and party basis as agreed or as assessed. Catchwords: Costs - application withdrawn - merits of application Legislation Cited: Administrative Decisions Tribunal Act 1997 Commercial Agents and Private Inquiry Agents Act 2004 Cases Cited: Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [ 2009] NSWADT 302 AT v Commissioner of Police, NSW [2010] NSWCA 131 Category: Costs Parties: Frank James Monte (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Horowitz & Bilinsky (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 123220 reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant applied to the Tribunal for review of a decision by a delegate of the Commissioner of Police ("the Commissioner") to refuse his application for a licence under the Commercial Agents and Private Inquiry Agents Act 2004 ("the CAPI Act"). The matter came before me for a number of interlocutory matters and then for hearing. The hearing commenced on 26 November 2012 and continued over several days. 2On 10 December 2012 the Applicant withdrew his application. I dismissed the application for review subject to any application made by the Commissioner for costs. 3The Commissioner subsequently made an application for costs and that application is the subject of this decision. 4The Commissioner seeks an order that the Applicant pay the costs it incurred from the time that the Applicant received the Statement of Reasons served on 28 September 2012. The Commissioner has estimated its costs to be $84,973 and comprises professional costs and the incidental costs and disbursements incurred during the course of the proceedings. The Commissioner seeks an order for its total costs as assessed or agreed. 5Each of the parties has filed written submissions in regard to the application for costs. The issue is to be determined on the basis of the material filed without the need for hearing. The Tribunal's power to award costs 6The Tribunal's power to award costs is pursuant to section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). Section 88 states that: (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. 7The general rule is therefore that each party pays their own costs. 8An order for costs under section 88 includes an order for costs of or incidental to proceedings in the Tribunal. The word "costs" for the purpose of section 88 is not limited to professional costs or costs of the proceedings but also includes costs incidental to the proceedings. This is made plain by the "Costs Guideline" issued by the Tribunal and revised on 30 April 2010. Paragraph 3 the Costs Guideline provides: 3. Meaning of 'Costs' 'Costs' refers to the professional fees charged to a party by that party's legal representative or by a professional representation who is not a lawyer. 'Costs' includes reasonable expenses ('disbursements') actually paid in connection with the proceedings. 9The provisions of section 88 have been considered in a number of Tribunal decisions and at a higher level. The "fairness" test in section 88 was considered by the Court of Appeal in AT v Commissioner of Police, NSW [2010] NSWCA 131. Basten J, with whom the other members of the court agreed, said at paragraph [33]: 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. The Commissioner's Submissions 10The Commissioner submits that it in accordance with section 88(1A) it is fair that the Tribunal makes an order for costs against the Applicant as the Applicant: a.lodged two applications for interlocutory orders without a tenable basis for either claim; b.when faced with an overwhelming case involving many allegations of impropriety lodged by many individuals, continued with his application for review; c.required the Commissioner to call eight witnesses to give evidence; d.while the application was on foot, continued to contravene the CAPI Act by advertising on the internet and representing that he was willing to provide private inquiry agent activities without holding the necessary licence; e.withdrew his application on the third day of the Commissioner's evidence when a further two witnesses were ready to give evidence before the Tribunal on 10 December 2012, without proffering any reason. 11The Commissioner contends that the Applicant had not filed any evidence in support of the first application for interlocutory orders, and there was no basis before the Tribunal on which an order could be made. The Commissioner submits that in the absence of any evidence to support it, that application was a claim with no tenable basis in fact: section 88(1A)(c)). 12The Commissioner contends that the Applicant provided false evidence in support of the second application for interlocutory orders. He asserted that he had been offered a number of jobs as a private investigator including a job with Pacific National Bulk Rail which involved surveillance work three days a week and earnings of approximately $2000 a week on an ongoing basis. 13Mr Halman from Pacific National Rail gave evidence that the Applicant did not tell him that he did not hold a CAPI Act licence to carry on private inquiry business and that neither he nor anyone at Pacific National Rail made any offer of work or indication that work would be offered to the Applicant nor specify an amount of work that could eventuate. 14The Commissioner contends that the Applicant mislead Pacific National Rail by representing that he was able to provide private inquiry agency activities when he was not the holder of a licence, there was no offer for work made by Pacific National, and he did not have to forego that work because of the Commissioner's decision to refuse his application. 15The Commissioner submits that the Applicant conducted the second application for interlocutory orders in a way that unnecessarily disadvantaged another party to the proceedings by attempting to deceive the Tribunal that there was a basis for an interlocutory order when in facts that there was none: section 88(1A)(a)(v). 16Accordingly the Commissioner seeks an order that the Applicant pay the Commissioners costs incurred for these applications. 17In relation to the substantive proceedings the Commissioner contends that the Applicant continued with his application in the face of an overwhelming case against him. The Commissioner's case included: a.findings of Justice Tamberlin of the Federal Court that the Applicant fabricated evidence; b.evidence of a course of conduct of the Applicant over many years that resulted in a large number of complaints to the Consumer Trader and Tenancy Tribunal; c.evidence from 8 witnesses who gave evidence about a consistent course of conduct where customers of the Applicant were required to pay for private inquiry agency services that were never provided. This included evidence of witnesses that identified the Applicant as being the person with whom they had spoken. The two remaining witnesses attended the Tribunal to give evidence that they had met the Applicant, engaged him and were then subjected to conduct consistent with the other witnesses that had given evidence. 18In response to the Commissioner's case the Applicant filed a single statement in which he addressed the matters raised by the Commissioner in general terms. 19The Commissioner submits that it is fair that the Applicant be required to pay the costs of the Commissioner in the proceedings. He persisted with his application when it would have been apparent that the case that he had to face was overwhelming. The late withdrawal can properly be regarded as prolonging unreasonably the time taken to complete the proceedings: section 88(1A)(b) 20The Commissioner submits that the Applicant has put the Commissioner to the expense and effort of establishing matters that supported its decision by calling witnesses from Victoria and Queensland on the basis that identity was an issue and then withdrew his application for review without notice and without reason. The costs incurred in bringing witnesses from different states to give evidence to confirm what was recorded in statements was essentially wasted as the application was withdrawn and the Tribunal was not required to determine the application. 21The Applicant withdrew his application for review without proffering any reason. 22The Commissioner further contends that while the application was on foot the Applicant continued to advertising on the internet representing that he was willing to provide private inquiry agent activities even though he did not hold a licence in any state of Australia. The Commissioner submits that by doing so he contravened section 5 of the CAPI Act. The Commissioner submits that this is a matter that can be taken into account pursuant to section 88(1A)(e) of the ADT Act. The Commissioner says that the conduct of the proceedings, whereby the Applicant required the Commissioner to proves its case, in light of the Applicant's continuing or ongoing contraventions of the CAPI Act are matters that are relevant to the Tribunal's consideration as to whether it is fair to make an order as to costs. 23Accordingly the Commissioner seeks an order that the Applicant pay the Commissioner's costs of and incidental to these proceedings. The Applicant's Submissions 24The Applicant submitted that he was entitled to bring an application for Review of the Commissioner's decision. He relies on observations made by the Tribunal in the case of Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302 the following: 9 Unless there is some particular circumstance falling within the ambit of section 88(1A) of the ADT Act, each party should bear its own costs. 10 Generally, the previous approach of the Tribunal toward what constituted "special circumstances" was that such circumstances had to be exceptional, or out of the ordinary. Following the subject amendments to the ADT Act, a factor or circumstance which renders the awarding of costs "fair" under section 88(1A) need not necessarily be exceptional or out of the ordinary. 11 The decision as to whether or not costs should be awarded, does not simply involve a balancing exercise to determine what is fair. To reiterate, section 88 provides that each party is to bear its own costs unless there is some particular circumstance which makes it fair to order a party to pay the costs of another party and, if such circumstance exists, the Tribunal may then order costs but only if it considers in its discretion that it is appropriate to do so." 25The Applicant submitted that the circumstances of this matter do not warrant the order sought by the Commissioner. 26The Applicant does not argue that the Tribunal is unable to evaluate the strengths of a case before a final decision is made. However he argues that the Commissioner's application is based on its case at its highest and he submitted that it is incorrect for the Commissioner to draw conclusions as to the strength of its case when contested issues of fact have not been decided. The Applicant further noted that he withdrew his application before the Tribunal had heard any evidence in reply. 27In relation to the Commissioner's assertions that it has been disadvantaged unnecessarily by the Applicant on the basis that the Applicant withdrew his application in the face of an "overwhelming case", it is submitted that there has been no decision by the Tribunal nor have there been any findings of fact on the evidence relied upon by the Commissioner. 28As for the alleged contravention of the CAPI Act, again it is submitted that there has been no decision by the Tribunal nor has there been any action taken against the Applicant for the alleged breach. 29The Applicant submitted that in considering the relative strengths of the claims made by each of the parties it is important to note the basis for the application for review. The Commissioner refused to renew the Applicant's Master licence and Operator licence on the basis the Commissioner was of the opinion that the Applicant was not a fit and proper person and that the grant of a licence to the Applicant would be contrary to the public interest. It is submitted that the Commissioner's decision was discretionary and based on a series of untested vague allegations and that the Reasons provided for the refusal of the licence were inadequate and unsatisfactory. In support of this submission he referred to comments by the Tribunal's President at the hearing of the Applicant's interlocutory Application on 4 September 2012. The President observed that the reasons comprised a two-page document that did not provide the levels of detail as required by the ADT Act. 30The Applicant asserted that he withdrew his application because of financial reasons. 31The Applicant also referred to the Commissioner's application for issue of a number of Summonses to Produce Documents in relation to the Applicant's banking records. The Applicant opposed access to parts of the documents, in particular the names of depositors that were unrelated to the proceedings. The Commissioner pressed for access, and the Applicant's legal representatives were required to attend a number of additional appearances. The Commissioner was unsuccessful in the applications for access and it is submitted that it was unreasonable for the Commissioner to press for access to those parts of the documents where it was obvious that such material did not relate to the proceedings before the Tribunal. 32It is submitted that having regard to the criteria set out in Section 88(1A) and the particular circumstances of this case, the Tribunal would not be satisfied that it is fair to award the Commissioner its costs. 33The Applicant noted that the Commissioner is a government agency to which the NSW Model Litigant Policy applies. He submitted that the conduct of the Commissioner during the proceedings unnecessarily disadvantaged him and that the Commissioner should pay part of the Applicant's costs. 34The Applicant contends that the Commissioner failed to comply with directions of the Tribunal, failed to comply with the ADT Act and was responsible for prolonging unreasonably the time taken to complete the proceedings. He asserted that: a.the Commissioner failed to file and serve its material as directed. Much of its material was served late with some served the day before the hearing and during the hearing; b.most of the documents relied upon at the hearing had only been lodged just before the hearing, and should have been included in the original bundle filed pursuant to section 58 of the ADT Act; c.the list of witnesses was provided to the Applicant the day before the hearing despite the Applicant requesting such list over two weeks earlier; d.the Applicant opposed access to material produced on Summons and the Commissioner unreasonably pressed for access in circumstances where it was clear, or should have been clear, that the material was not relevant to the proceedings before the Tribunal; and e.the Applicant was unnecessarily disadvantaged because the Commissioner did not prepare its case properly. Discussion 35The basic rule in proceedings in the Tribunal is contained in section 88(1) of the ADT Act - each party is to bear their own costs. A costs order can be made by way of exception where it is 'fair to do so' having regard to relevant matters, including the specific considerations set out in section 88(1A). 36In my view, a costs order in the Commissioner's favour is warranted. That decision turns largely upon the points put forward by the Commissioner, and particularly upon my view that the Applicant unreasonably persisted with his application. I do not agree that the conduct of the Commissioner during the proceedings unnecessarily disadvantaged the Applicant. 37I agree generally with the points made by the Commissioner. However, I agree that the Applicant is not liable to pay the Commissioner's costs associated with the unsuccessful disputed summons issue. 38For the reasons argued by the Commissioner I am satisfied that there was no tenable basis for either of the applications for interlocutory orders. 39It is not in dispute that the Applicant withdrew the application after several days of hearing and evidence by the Commissioner's witnesses. The evidence of those witnesses was not seriously varied under cross-examination and in my view the case presented against the Applicant was strong. 40The basis of the decision under review was that the Commissioner was of the opinion that the Applicant was not a fit and proper person and that the grant of a licence to the Applicant would be contrary to the public interest. The position of the Applicant in disputing the Commissioner's opinion was close to one "that has no tenable basis in fact or law. 41Notwithstanding the Commissioner's delay in complying with directions, the Applicant was in possession of sufficient material prior to the commencement of the hearing to enable a reasonable assessment to be made of the relative strengths of the cases. The Applicant continued with his application in circumstances in which his prospects of success were minimal at best. In doing so he placed the Commissioner in the position where the Commissioner was put to the expense and effort of establishing matters that supported its decision by calling interstate witnesses. The Applicant then withdrew his application without notice and without reason. The costs incurred in presenting the case were therefore wasted. 42I agree that the late withdrawal can properly be regarded as prolonging unreasonably the time taken to complete the proceedings. 43It is not necessary for me to consider the issue of the Applicant continued to represent that he was willing to provide private inquiry agent activities while the application was on foot and in contravention of section 5 of the CAPI Act. 44With the exception of the costs associated with the unsuccessful disputed summons application, I am satisfied that the Commissioner is entitled to an order that the Applicant pay the Commissioner's costs of and incidental to these proceedings. Order The Applicant is to pay the Commissioner's costs of and incidental to these proceedings on a party and party basis as agreed or as assessed. ********** 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: 21 June 2013