Naylor v Commissioner of Police, NSW Police Force (No 2) [2014] NSWCATOD 120

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Naylor v Commissioner of Police, NSW Police Force (No 2) [2014] NSWCATOD 120 Hearing dates: On the papers Decision date: 21 October 2014 Before: P H Molony, Senior Member Decision: The Tribunal orders that Ms Naylor pay the Commissioner's costs of this proceeding, such cost in default of agreement to be assessed. Catchwords: Costs Legislation Cited: Administrative Decision Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Security Industry Act 1997 Cases Cited: Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 43 Category: Principal judgment Parties: Jasmin Naylor (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: J Naylor (Applicant in person) Bartier Perry (Respondent) File Number(s): 133185

reasons for decision

Background 1The Commissioner of Police has applied for an order for costs on an indemnity basis with respect to proceedings that were heard before the Administrative Decisions Tribunal (the ADT) in 2013, with the decision being delivered on 2 May 2014: Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 43. A familiarity with that decision is assumed in these reasons. 2The Tribunal affirmed the decision of the Commissioner to revoke Essential Security Pty Ltd.'s Class MC Master Licence under the Security Industry Act 1997. In reaching that decision I made a series of adverse findings with respect to the reliability of the evidence Ms Naylor and her witness, Mr Farooq. I also found that Ms Naylor had actively sought to deceive the Commissioner and the Tribunal in an effort to retain the corporate master licence. 3As the proceedings were part heard before me as a member of the ADT, at the time when the New South Wales Civil and Administrative Tribunal was established, clause 7(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013 provides that (a) I complete the matter sitting as a member of NCAT; and, (b) "the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply." As a consequence, the costs application is to be determined under s 88 of the Administrative Decisions Tribunal Act 1997 as it was before the establishment of NCAT. 4Section 88 relevantly provided - (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. 5While both parties were given an opportunity to make submissions with respect to costs, only the Commissioner of Police has done so.