Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ahmed v Commissioner of Police, NSW Police Force [2017] NSWCATOD 113 Hearing dates: On the papers Date of orders: 24 July 2017 Decision date: 24 July 2017 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: (1) Mr Ahmed is pay the costs of the Commissioner of Police, NSW Police Force in the amount of $10,056.40 within 28 days of the date of this decision. Catchwords: COSTS – whether special circumstances – proceedings frivolous or vexatious or lacking in substance – dishonest evidence given to the Tribunal Legislation Cited: Security Industry Act 2997 Civil and Administrative Tribunal Act 2013 Cases Cited: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 120 Category: Costs Parties: Naeem Ahmed (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: In Person (Applicant) Bartier Perry (Respondent) File Number(s): 2016/00378787 REASONS FOR DECISION 1. The Commissioner of Police, NSW Police Force ("the Commissioner") seeks his costs of the review by the Tribunal of the Commissioner's decision under the Security Industry Act 1997 to revoke the Class 1AC security licence previously held by Mr Naeem Ahmed. 2. On review, the Tribunal affirmed the decision of the Commissioner that Mr Ahmed is not a fit and proper person to hold a security licence and that it is not in the public interest that he holds such a licence. The Tribunal's decision was made on 16 March 2017. The Commissioner subsequently filed an application for costs which Mr Ahmed opposes. The matter is to be determined on the papers. 3. In its decision of 16 March 2017 the Tribunal found that Mr Ahmed had contravened the Security Industry Act by providing security training in NSW without the appropriate licence. This finding related to activities carried out by Mr Ahmed in late 2015 and early 2016. Mr Ahmed provided security training in NSW to NSW residents to enable those persons to obtain a Queensland security licence. It was then open to the holder of a Queensland licence, under mutual recognition laws, to obtain a NSW security licence. 4. The Tribunal found that Mr Ahmed knew or ought to have known that he was required to be licenced to conduct security training in NSW, even if the training was directed towards obtaining Queensland qualifications and licences. This was particularly the case as the evidence before the Tribunal showed that Mr Ahmed had been convicted of the same offence in 2014. 5. The Tribunal also found that Mr Ahmed was aware that the purpose of the training was to take advantage of the mutual recognition laws and he could therefore deliver less rigorous training by an unqualified trainer to persons who otherwise would not be able to obtain a security licence in NSW. The Tribunal also found that Mr Ahmed was aware that the training he delivered was inadequate as there was no proper training delivered and no assessments of skills. The legislation 1. The Tribunal's power to award costs is set out in section 60 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"): "60 Costs (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." 1. As can be seen from that section, the ordinary rule is that each party to proceedings in the Tribunal pays their own costs. The Tribunal may, however, order a party to pay another party's costs if satisfied that there are special circumstances which warrant such an order. It is clear that the factors set out in section 60(3)(a) to (f) are not meant to be an exhaustive list of what might constitute "special circumstances". 2. However, as the Appeal Panel observed in Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38, it does not follow that a costs order should be made because some factors are made out. It remains the task of the Tribunal to weigh whether those circumstances amount to "special" circumstances that justify departing from the ordinary rule that each party bear their own costs. 3. Subsection 60(3)(f) refers to the duty imposed by section 36(3). Section 36(1) of the NCAT Act sets out the "guiding principle" to be applied to the practice and procedure of the Tribunal. This is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Subsection 36(3) of the NCAT Act sets out the persons who are to co-operate with the Tribunal to give effect to that guiding principle. These include a party to proceedings in the Tribunal. The Commissioner's submissions 1. The Commissioner seeks its costs in these proceedings in the amount of $10,056.40, excluding GST. 2. The Commissioner submits that the application brought by Mr Ahmed had no tenable basis in fact or in law and the proceedings before the Tribunal were frivolous or vexatious and were lacking in substance. 3. The Commissioner submits that, despite his previous conviction in the Local Court and despite being on notice through the internal review process concerning the decision under review that his activities were unlawful, Mr Ahmed pursued his application to the Tribunal when it had no tenable basis. This was particularly the case where Mr Ahmed knew he was committing an offence by providing security training in NSW and where he knew that the training he was providing was inadequate and unacceptable. 4. The Commissioner argues that, in these circumstances, the commencement of the proceedings was frivolous and a waste of the Tribunal's and the Commissioner's time. 5. The Commissioner also submits that Mr Ahmed engaged in behaviour before the Tribunal and with the Commissioner that was deceitful and purposefully misleading. The Commissioner points to the fact of the previous conviction and Mr Ahmed's attempts before the Tribunal to deny that he had previously been found guilty of the same conduct. The Commissioner submits that dishonesty is a relevant matter in considering whether to award costs. 6. The Commissioner refers to the case of Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 120 in which the Tribunal awarded costs in circumstances where the applicant's case was always weak and destined to fail and she attempted to deceive the Tribunal and the Commissioner. Applicant's submissions 1. Mr Ahmed states he cannot afford to pay costs as he is now unemployed. Conclusions 1. The Tribunal is satisfied that Mr Ahmed's application was frivolous, lacking in substance and had no tenable basis in fact or law. Mr Ahmed knew this to be the case because he had been convicted of engaging in the same unlawful activity in 2014. His bringing of the application demonstrated a failure on his part to observe his obligation as a party to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 2. Moreover, Mr Ahmed gave dishonest evidence to the Tribunal in an attempt to deny the matter, that is his previous conviction, which made his application untenable. 3. In these circumstances I am satisfied that special circumstances such that the Commissioner should be awarded its costs of the proceedings. The Commissioner has sought costs on an indemnity basis but I am not satisfied that the circumstances warrant the making of such an order. Orders 1. Mr Ahmed is pay the costs of the Commissioner of Police, NSW Police Force in the amount of $10,056.40 within 28 days of the date of this decision. ********** 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: 24 July 2017