Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Haggar v Point to Point Transport Commissioner (No 2) [2018] NSWCATOD 94 Hearing dates: On the papers Date of orders: 15 June 2018 Decision date: 15 June 2018 Jurisdiction: Occupational Division Before: Dr J Lucy, Senior Member Decision: 1. The applicant's costs application is dismissed. Catchwords: COSTS – Where applicant successful in similar merits review proceedings under repealed legislation – Where applicant's solicitors wrote to respondent's solicitors inviting respondent to change her decision prior to the hearing – Whether special circumstances existed warranting an order for costs Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Passenger Transport Act 1990 (NSW) Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) Cases Cited: Gaynor v Burns [2015] NSWCATAP 150 Haggar v Roads and Maritime Services [2017] NSWCATOD 135 Haggar v Point to Point Transport Commissioner [2018] NSWCATOD 38 Category: Costs Parties: Colin Haggar (applicant) Point to Point Transport Commissioner (respondent) Representation: Counsel: I Latham (applicant) Solicitors: Uther Webster & Evans (applicant) Hunt & Hunt (respondent) File Number(s): 2017/332873 REASONS FOR DECISION 1. This is a costs application made by a successful applicant in merits review proceedings. The applicant had successfully conducted merits review proceedings under earlier legislation (now repealed) involving almost identical facts and submits that the respondent should have recognised that he would get the same outcome under the new legislative regime. 2. I found that there were no special circumstances warranting an award of costs. The legislation in the two cases was different and, although similar factual issues arose, different legal tests applied to each case. Background 1. In early 2017, Roads and Maritime Services first suspended and then cancelled the applicant's authority to drive a private hire vehicle under the Passenger Transport Act 1990 (NSW), because of his convictions. The applicant sought review of those decisions in the Tribunal. On 18 August 2017, the Tribunal set aside the cancellation decision, meaning that the applicant's authority to drive a private hire vehicle continued in effect (see Haggar v Roads and Maritime Services [2017] NSWCATOD 125). 2. The regulation of private hire vehicles in New South Wales changed on 1 November 2017. The Passenger Transport Act ceased to apply to private hire vehicles and instead they became regulated under the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) by a new regulator, being the respondent ("the Commissioner"). 3. The Commissioner's decided under the new legislation that the applicant should not, because of his convictions, be a driver for a passenger service. This had the effect that he was not entitled to drive a private hire vehicle. 4. The applicant applied to the Tribunal, under the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 and the Administrative Decisions Review Act 1997 (NSW), for a review of the Commissioner's decision. The factual matters on which the Commissioner relied in the Tribunal were very similar to those put forward by Roads and Maritime Services in the earlier Tribunal case involving Mr Haggar. 5. I set aside the Commissioner's decision and made a decision in substitution which had the effect that Mr Haggar was entitled to continue to drive hire cars (Haggar v Point to Point Transport Commissioner [2018] NSWCATOD 38 ("substantive decision")). Applicant's costs application and Commissioner's response 1. The applicant foreshadowed at the substantive hearing that he may make a costs application and, with the consent of the parties, I determined that any costs application would be determined on the papers (substantive decision at [68]). 2. After the hearing, Mr Haggar applied for party/party costs, submitting that there are "special circumstances" warranting an award of costs within s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"). 3. The usual rule is that each party to proceedings in the Tribunal is to pay the party's own costs: NCAT Act, s 60(1). However, the Tribunal may award costs in relation to proceedings before it if it is satisfied that there are special circumstances warranting an award of costs: NCAT Act, s 60(2). "Special circumstances" are circumstances which are out of the ordinary; they do not need to be extraordinary or exceptional: Gaynor v Burns [2015] NSWCATAP 150 at [19]. 4. Mr Haggar relies upon a letter sent by his solicitors to the Commissioner's solicitors on 15 January 2018. The letter noted that very similar issues were determined by the Tribunal in the decision of Haggar v Roads and Maritime Services [2017] NSWCATOD 135, on 18 August 2017. 5. Mr Haggar's solicitors suggested in their letter to the Commissioner's solicitors that there was no significant factual difference between the two cases which would lead to a different outcome. The letter invited the Commissioner to withdraw her determination that Mr Haggar not be a driver for a passenger service and indicated that Mr Haggar would rely on the letter in any argument as to costs. 6. Mr Haggar submitted, through his counsel, that the effect of the Commissioner pursuing these proceedings was to put Mr Haggar to substantial cost in circumstances where a sober reflection would have led to the granting of the licence. 7. The Commissioner's solicitors made the following submission in reply: "Whilst the issues may have been similar - there were differences which meant that it was appropriate for the decision maker, and the Tribunal, to consider: (a) Each decision was made under different legislation pursuant to a provision which was significantly different from the other. (b) The initial decision had been made under the Passenger Transport Act and was a determination limited to whether the applicant ought to be licensed to drive a hire car, ie whilst under the supervision of an authorised hire car operator. (c) The second decision had been made under the Point to Point Taxis and Hire Vehicles Act 2016 increased the nature and range of work the Applicant would be permitted to undertake and without the supervision of an authorised hire car operator." Consideration 1. I accept the applicant's submission that the factual issues in the two cases were very similar and that, from one point of view, the Commissioner was asking the Tribunal to reconsider matters it had considered only months earlier. I have some sympathy for the applicant's position insofar as part of the Commissioner's case relied upon factual propositions the Tribunal had recently rejected, albeit in the context of those propositions being put forward by a different respondent. 2. I do not find, however, that there are special circumstances warranting an award of costs. The propositions advanced by the Commissioner in the substantive matter are set out at [44] of my substantive decision. They included matters which had not been agitated in the earlier proceedings, such as the mandatory disqualification, under the new legislation, of a person with the applicant's criminal record who had not held an authority to drive a private hire car, and other matters relating to differences between the former and current legislative regimes. The Commissioner's decision was made before the new legislation commenced and thus before any court or tribunal had had an opportunity to consider the meaning and scope of the provision on which the Commissioner relied. The Commissioner was entitled to make her decision and to defend it in the Tribunal. There was nothing improper in doing so in circumstances where the Tribunal had upheld a similar application under different legislation involving a different respondent. 3. There is also the issue that the applicant had not applied for internal review. Although the Commissioner did not oppose the Tribunal dealing with the application, the Tribunal could not do so unless it was satisfied that this was necessary to protect the applicant's interests. This was not a foregone conclusion. Even without considering this factor, however, I would still come to the conclusion that there were no special circumstances warranting an award of costs. 4. For these reasons, the usual rule should apply and each party should bear his or her own costs. Order 1. I make the following order: 1. The applicant's costs application is dismissed. ********** 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: 15 June 2018