Bilic v Commissioner of Police

[2022] NSWCATAD 93

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bilic v Commissioner of Police [2022] NSWCATAD 93

Hearing dates:

On the papers

Date of orders:

17 March 2022

Decision date:

17 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member

Decision:

(1) An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The applicant is to pay the respondent costs for the period from 7 December 2021 to 22 February 2022, as agreed or assessed.

Catchwords:

COSTS – withdrawal of application – whether special circumstances

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Cases Cited:

Cripps v G & M Mawson [2006] NSWCA 84

Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120

Texts Cited:

Nil

Category:

Costs

Parties:

Anthony Bilic (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors
Applicant (Self Represented)
Bartier Perry (Respondent)

File Number(s):

2021/00213032

Publication restriction:

Nil

Reasons for decision

Introduction

1. These reasons for decision relate to the respondent’s (the Commissioner) application for costs following the applicant’s (Mr Bilic) withdrawal of his application in proceedings 2021/213032.

2. For the reasons set out below, I am not satisfied that the Commissioner has established that special circumstances warrant an order being made for some of the costs.

Dispensing with the Hearing

3. Section 50 of the Civil and Administrative Tribunal Act (NSW) 2013 (NCAT Act) relevantly provides:

50 When hearings are required

1. A hearing is required for proceedings in the Tribunal except:

…

(c)   if the Tribunal makes an order under this section dispensing with a hearing, or

…

1. The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

2. The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

   (a)   afforded the parties an opportunity to make submissions about the proposed order, and

   (b)   taken any such submissions into account.

3. The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

…

4. The Tribunal’s directions for submissions on costs asked the parties to address s 50 of the NCAT Act. As noted above, the Commissioner has consented to the application being determined on the papers and no response has been received from Mr Bilic regarding the costs application. The Tribunal is satisfied the parties have had the opportunity to make submissions about a hearing on the papers. The Tribunal is satisfied that the issue of costs can adequately be determined in the absence of the parties by considering the written submissions of the parties. The parties would be put to unnecessary expense if a hearing on costs were held.

Law

5. Section 60 of the NCAT Act applies in respect of the Commissioner’s costs application.

6. This section relevantly provides:

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.

…

7. For the purposes of s 60(2) of the NCAT “special circumstances” are circumstances that are out of the ordinary. They do not have to be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], citing Cripps v G & M Mawson [2006] NSWCA 84 at [60].

Consideration

8. The Commissioner is seeking costs thrown away associated with the adjournment of the hearing on 6 December 2021 and costs incurred from 7 December 2021 to the date of dismissal of the applications as agreed or assessed, alternatively a total amount of $5757.84 being a lump sum total amount for costs.

9. In summary, the Commissioner argues that the special circumstances warranting an order for costs are that, Mr Bilic;

• has been responsible for prolonging unreasonably the time taken to complete the proceedings (s60 (3)(b)),

• has refused or failed to comply with the duty imposed by section 36 (3) by not complying with the Tribunals directions and orders (s60 (3)(f)),

• offered to pay the Commissioners costs as part of his submissions to obtain an adjournment of the final hearing on 6 December 2022 (s60(3) (g)); and

• was tardy in withdrawing his application, (s60(3) (g)).

10. The central issue to be determined is whether the Commissioner has established that there are special circumstances warranting an order for costs in its favour.

11. On 22 July 2021, Mr Bilic filed an application seeking review of a decision by the Commissioner to revoke his firearms licence. The matter came before the Tribunal on 31 August 2021 and the decision under review was remitted to the Commissioner for reconsideration. The proceedings were listed for further directions on 28 September 2021. The Tribunal noted:

If the application is withdrawn prior to the next occasion, the matter can be finalised on the basis of the written withdrawal. The parties have agreed that of the application is withdrawn the matter can be finalised without need to attend the Tribunal.

12. On 28 September 2021 directions were made for the exchange of evidence and the proceedings were listed for final hearing on 6 December 2021.

13. On 12 November 2021 a request for an extension of time to provide documents was made on behalf of Mr Bilic and was granted.

14. On 3 December 2021 Mr Bilic requested an adjournment of the final hearing on the basis that some matters raised in the files material needed investigation and to prepare evidence in reply. That adjournment request was declined.

15. On 6 December 2021 the matter came before the Tribunal for hearing and the hearing was adjourned. The reasons state that the adjournment was granted for two reasons.

1. Mr Bilic had only had three working days to consider further evidence filed by the respondent on 1 December 2021 (although it had been received by him on 30 September 2021).

2. Mr Bilic's legal representatives had ceased to act and he intended on retaining new legal representation.

16. The Tribunal noted that no medical evidence was provided to support Mr Bilic’s assertion that his great aunt was in hospital. Directions were made for Mr Bilic to provide supporting medical evidence concerning the condition of his great aunt by 10 December 2021 and the Tribunal made further directions for the exchange of documents.

17. The Commissioner submits that at the hearing on 6 December 2021, Mr Bilic offered to pay the costs of the vacated hearing. They submit that this offer was freely made by Mr Bilic without prompting and in support of his adjournment request.

18. The Commissioner also submits that for the hearing on 6 December 2021, they had prepared for oral submissions and extensive cross-examination of Mr Bilic. The Commissioner was also required to arrange for two witnesses (both serving police officers) to be made available for cross-examination by the Mr Bilic.

19. Furthermore, despite the hearing ultimately being adjourned, the Commissioner’s representatives were required to attend the hearing for approximately two (2) hours. The commissioner submits that the delay was caused by Mr Bilic’s inability to provide evidence supporting his request for an adjournment and subsequent firing of his own legal representatives during proceedings.

20. The Commissioner now indicates that a submission was made by Mr Bilic on the day consenting to costs to be awarded for the adjournment. On 6 December 2021, the Tribunal provided its reasons as to why the matter should be adjourned. Neither the orders nor reasons from 6 December 2021 make reference to costs. I find that in circumstances where an applicant has become self-represented that the granting of the adjournment, without a costs order, would not be out of the ordinary. In relation to the costs thrown away for the adjournment of the hearing on 6 December 2021 I do not find any matters which warrant special circumstances.

21. The Commissioner submits that after 6 December 2021, costs would not have been further incurred if Mr Bilic had either complied with the orders of the Tribunal or withdrawn his case in a timely manner.

22. On 10 January 2021 solicitors for the Commissioner emailed Mr Bilic enquiring whether he had appointed new legal representatives and if so to provide details. They also sought the supporting medical evidence relating to the illness of Mr Bilic’s great aunt which had been ordered to be provided in the directions of 6 December 2022.

23. At 10.48am on 31 January 2022, the Commissioner advised the Tribunal that the directions of 6 December 2021 had not been complied with and sought relisting of the matter due to Mr Bilic’s non-compliance. Mr Bilic was copied into the email.

24. On 31 January 2022 at 11.09am Mr Bilic emailed the solicitor for the Commissioner stating:

Apologies in the tardy response to your previous I’ve been abroad, however we did try to contact your office to advise that we would be withdrawing our application.

Do you require this to be formally written up?

25. The Commissioner responded to the email from Mr Bilic at 12pm and explained the process for withdrawing the application. At 12.39pm Mr Bliic responded that he would address the matter in the afternoon. Mr Bilic did not subsequently advise the Tribunal that afternoon.

26. The matter was later listed for directions on 15 February 2022 and on that date the Tribunal made directions for the Commissioner to give to the Tribunal and Mr Bilic any application for dismissal and costs. Mr Bilic was given an opportunity to reply and the proceedings were listed for hearing of the dismissal and costs on 8 March 2022. Mr Bilic did not appear at that directions hearing.

27. On 16 February 2022, Mr Bilic sought to withdraw the application. On 21 February 2022 the Commissioner advised that they did not oppose the application for withdrawal, however that they were seeking costs. On 22 February 2022 the Tribunal made orders dismissing the application and also made directions for the parties to address the costs application. On 2 March 2022 the Commissioner wrote to the Registry advising that Mr Bilic had not complied with directions to respond to the application for costs and that the Commissioner did not propose to make any further submissions on costs and relied on the previously filed application and written submission dated 21 February 2022. The Commissioner also sought that the hearing of 8 March 2022 be vacated and the costs applications be decided on the papers. On 4 March 2022 the parties were advised that the hearing listed on 8 March 2022 was vacated.

28. Mr Bilic has not made any submissions as to why he did not comply with Tribunal directions after 6 December 2021 or why he decided to withdraw the application. There is also no explanation as to why he did not attend the directions hearing of 15 February 2022.

29. I accept that after 6 December 2021, the Commissioner has incurred additional legal costs due to:

30. Attempts to contact Mr Bilic regarding his non-compliance with the orders. In that regard the Commissioner.

31. The Commissioner was subsequently required to appear at direction on 15 February 2022.

32. Ordinarily, in circumstances where an applicant has become self-represented, a failure to attend a hearing or delay in withdrawing an application, may not be out of the ordinary or amount to special circumstances.

33. However, in the circumstances of this case, there are matters that are out of the ordinary:

• On 6 December 2021 Mr Bilic was given the benefit of an adjournment without the awarding of costs.

• Mr Bilic failed to comply with the Tribunal directions of 6 December 2021 to provide a medical certificate or to provide further evidence as he had requested. He has not provided any reasons for that failure.

• On 21 January 2022, it was explained to Mr Bilic by the Commissioner what was required of him in relation to withdrawing the application when he enquired with them about it. He advised that he would be withdrawing the application that afternoon and he did not. No explanation has been provided as to why.

• The directions hearing for 15 February 2022 proceeded and Mr Bilic did not attend. He has not provided an explanation for non-attendance.

• Mr Bilic also failed to provide any submissions as to the costs application or to explain his failures to comply with directions or any delay in withdrawing the application.

34. I am satisfied that these matters amount to circumstances and are out of the ordinary. On that basis I am satisfied to award costs in favour of the Commissioner from 7 December 2021 till the date of dismissal on 22 February 2022.

35. The Commissioner had made submissions that the Tribunal should award costs as a lump sum amount. The Commissioner has provided the amounts sought in submissions. However, there is no supporting evidence in relation to those amounts and no submissions as to why I should make a lump sum award. On that basis, I am not satisfied to award a lump sum and make the order for costs as agreed or assessed.

Orders

1. An oral hearing on the issue of costs is dispensed with under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

2. The applicant is to pay the respondent costs for the period from 7 December 2021 to 22 February 2022, as agreed or assessed.

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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

Decision last updated: 17 March 2022