BVV v Commissioner of Police, NSW Police Force

Case •

[2023] NSWCATAD 134

•

02 May 2023

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: BVV v Commissioner of Police, NSW Police Force [2023] NSWCATAD 134
Hearing dates: 8 March 2023
Date of orders: 02 May 2023
Decision date: 02 May 2023
Jurisdiction:Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
Decision:

(1)   The Applicant’s third request for my disqualification is refused.

(2)   The Applicant is to pay the Respondent’s costs of these proceedings, including the costs application, in an amount to be agreed or assessed.

Catchwords:

PRACTICE & PROCEDURE – disqualification application - apprehended bias – ex-parte communications - whether directions a ‘decision’ - procedural fairness

COSTS - special circumstances – discretion - form of costs order

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Government Information (Public Access) Act 2009

Legal Profession Uniform Law Application Act 2014 (NSW)

Privacy and Personal Information Protection Act 1998

Cases Cited:

203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29

Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75

Attorney-General v Wentworth (1988) 14 NSWLR 481

Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673

Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411

Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2021] FCA 1007

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119

Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294

Bostick Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224

BVV v Commissioner of Police [2020] NSWCATAD 182

BVV v Commissioner of Police [2021] NSWCATAD 244

BVV v Commissioner of Police [2021] NSWCATAD 250

BVV v Commissioner of Police [2023] NSWCATAP 6

BYW v Commissioner of Police, NSW Police Force [2014] NSWCATAD 53

Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282

Charisteas v Charisteas [2021] HCA 29

Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54

CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21

Diaspora Holdings Pty Ltd v Owners SP 68608 [2019] NSWCATAP 250

DVT v Commissioner of Police (No 5) [2020] NSWCATAD 311

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422

eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94

Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148

Hamod v State of New South Wales [2011] NSWCA 375

Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213

Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4

Johnson v Johnson (2000) 201 CLR 488

Ken Tugrul v Tarrants Financial Consultants Pty Ltd (In liq) (No 2) [2013] NSWSC 1971

Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48

Latoudis v Casey (1990) 170 CLR 334

Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477

Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120

New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231

Northern Territory of Australia v Sangare (2019) 265 CLR 164

Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38

Oshlack v Richmond River Council [1998] HCA 11

Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121

R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269

Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491

Rose Nettis Pty Ltd v Three Tall Trees Pty Ltd [2015] NSWCATAP 51

SAB Closed 1 Pty Ltd v Bees & Honey Pty Ltd; Bees & Honey Pty Ltd v SAB Closed 1 Pty Ltd [2015] NSWSC 1162

Scott-Brydges v Lismore City Council (No 2) [2018] NSWCATAD 265

Shi Shi Cindy Lee v Dr Geoffrey Lee [2014] NSWCATCD 181

Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24

Wentworth v Graham [2003] NSWCA 240

Zonnevylle v Minister for Education & Early Childhood Learning [2021] NSWCATAP 398

Zonneyville v Secretary, NSW Department of Education [2022] NSWCATAD 56

Texts Cited:

None cited

Category:Consequential orders
Parties: BVV (pseudonym for the Applicant)
Commissioner of Police (Respondent)
Representation:

Counsel:
J Curtin (Respondent)

Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)
File Number(s): 2020/00020455
Publication restriction: The publication or broadcast of the name of the applicant is prohibited, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

  1. On 20 August 2021 the Tribunal published its substantive decision in these proceedings as BVV v Commissioner of Police [2021] NSWCATAD 250 (also referred to within these reasons as ‘the substantive decision’). On 15 October 2021 the Commissioner of Police (the Respondent) filed an application for miscellaneous matters in relation to the substantive decision, seeking $60,000 from the Applicant in payment of the Respondent’s costs pursuant to s 60(2) of the Civil and Administrative Tribunal Act 2013 (the CAT Act).

Procedural history

  1. On 21 October 2021 the Tribunal issued the following directions:

1) Commissioner of Police to file and serve all evidence and submissions in relation to its application for costs on or by 11 November 2021.

2) BVV to file and serve evidence and submissions in response on or by 2 December 2021, and to inform the Tribunal and Commissioner of Police at that time whether he consents to an oral hearing being dispensed with in accordance with s 50(2) of the CAT Act.

3) Commissioner of Police to file and serve any evidence and submissions in reply on or by 16 December 2021.

4) If BVV has consented, matter to be determined on the papers after 16 December 2021. Otherwise, matter will be listed for directions to set a hearing date.

  1. Following correspondence from the Respondent seeking to amend the timetable, on 27 October 2021 the matter was listed for a telephone directions hearing on 3 November 2021. On 3 November 2021 the Tribunal received an email from the Applicant at 12.45am which stated the following and attached a document titled “Applicant’s submissions in support of third request for disqualification”:

Dear Registrar

I refer to the above proceedings listed for directions on 3 November 2021 at 12:30pm.

Please find attached my submissions in support of a request for disqualification dated 2 November 2021.

The respondent’s legal representative has been copied into this email

Regards,

[BVV]

  1. The Applicant did not appear by telephone at the directions hearing listed at 12.30pm that day. On 3 November 2021 the Tribunal made the following orders:

  1. Orders made 21 October 2021 vacated.

  2. BVV to file and serve all evidence and submissions in relation to his 3 November 2021 application for SM Dinnen’s disqualification on or by 5 November 2021.

  3. BVV to inform the Tribunal and Commissioner of Police by 11 November whether he consents to an oral hearing being dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 with respect to both his disqualification application and the Commissioner of Police’s costs application.

  4. Commissioner of Police to file and serve all evidence and submissions in relation to its application for costs, and the Applicant’s application for SM Dinnen’s disqualification made 3 November 2021, on or by 11 November 2021.

  5. BVV to file and serve evidence and submissions in response to the costs application and in reply to his disqualification application on or by 2 December 2021.

  6. Commissioner of Police to file and serve any evidence and submissions in reply to its costs application on or by 16 December 2021.

  7. If BVV has not consented to either application being determined on the papers without need for an oral hearing, the matter will be listed for directions on a date after 16 December 2021. Otherwise, if consent has been granted, both applications will be determined on the papers after 16 December 2021.

  1. On 6 November 2021 the Applicant contacted the Tribunal seeking an amendment to the orders of 3 November 2021:

I request that my application for disqualification of Senior Member Dinnen dated 2 November 2021 be dealt with quickly and promptly (i.e. before the respondent’s application for costs) because apprehended bias strikes at the validity and acceptability of the determination of the application for costs (Kirby v Dental Council of New South Wales [2017] NCATOD 64 at [34] – [35]; Batey-Elton & Elton [2010] FamCA 266 at [19].

I consent to an oral hearing being dispensed with in respect to my application for disqualification of Senior Member Dinnen.

  1. On 12 November 2021 the Tribunal wrote to the parties as follows:

Applicant’s request dated 6 November 2021 in relation to orders made on 3 November 2021

I advise that the request has been brought to the attention of Senior Member Dinnen who has declined to vary or amend the orders made on 3 November 2021.

  1. On 11 November 2021 the Tribunal received the affidavit of Tram Nguyen affirmed on that date, and submissions from the Respondent which addressed both the Respondent’s costs application and the Applicant’s application for my disqualification.

  2. The Applicant sent some further submissions on the issue of disqualification by email to the Tribunal on 13 December 2021, in which he again consented to the Tribunal determining the issue of disqualification ‘on the papers’ pursuant to s 50(2) of the CAT Act. No evidence or submissions regarding the Respondent’s costs application were provided by the Applicant, and no explanation provided as to why the Applicant did not comply with the Tribunal’s orders.

  3. In the meantime, the Applicant appealed the substantive decision and included his disqualification requests as one of the grounds for that appeal. Accordingly, I held off on my determination of the issue of costs and the Applicant’s request for my disqualification until after the appeal had been heard and determined. The appeal was heard on 25 February 2022 and the Appeal Panel’s decision was published on 11 January 2023: BVV v Commissioner of Police [2023] NSWCATAP 6 (the BVV appeal).

  4. Following publication of the Appeal Panel’s decision, I listed the matter for directions on 3 February 2023 to provide the Applicant with a final opportunity to make submissions on the issue of the Respondent’s costs application. There was no appearance by the Applicant. On 3 February 2023 I made the following orders:

  1. Orders 3, 5, 7 of the orders made 3 November 2021 are vacated;

  2. The Applicant (BVV) to inform the Tribunal and Commissioner of Police by 17 February 2023 if he consents to an oral hearing being dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013 with respect to the Commissioner of Police’s costs application. Unless such consent is received, the matter will proceed to oral hearing.

  3. BVV is to file and serve all evidence and submissions in relation to the Commissioner of Police’s costs application by 17 February 2023. No evidence or submissions will be received after that date without leave.

  4. Commissioner of Police, NSW Police Force is to file and serve any additional evidence and submissions in reply by 3 March 2023.

  5. The costs application is listed for hearing on 8 March 2023 at 10am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney for 0.5 days.

Note: In the event that there is no appearance by a party at the hearing, the proceedings may be heard and determined in their absence.

  1. Those orders were sent to the Applicant’s email address on file, which is the same email address he used to communicate with the Respondent and the Tribunal during the substantive hearing and appeal proceedings. Evidence from the Respondent indicated that they had last received correspondence from that email address in October 2022.

  2. There was no response from the Applicant, no further material filed or served by him, and he did not appear at the hearing on 8 March 2023. As anticipated by the orders made on 3 February 2023, the hearing therefore proceeded in his absence.

  3. The Respondent filed a further affidavit of Tram Nguyen affirmed 1 March 2023 and relied on that and the earlier Tram Nguyen affidavit of 11 November 2021.

Legal Principles

Disqualification requests

  1. Section 5 of the CAT Act defines what is considered a “decision” in the Tribunal:

5 MEANING OF "DECISION"

(1) In this Act,

"decision" includes any of the following--

(a) making, suspending, revoking or refusing to make an order or determination,

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

(d) imposing a condition or restriction,

(e) making a declaration, demand or requirement,

(f) retaining, or refusing to deliver up, an article,

(g) doing or refusing to do any other act or thing.

(2) For the purposes of this Act--

(a) a decision is made under enabling legislation or this Act if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation or this Act, and

(b) a decision that purports to be made under enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act even if the decision was beyond the power of the decision-maker to make, and

(c) a refusal of a decision-maker to make a decision under enabling legislation or this Act because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act to refuse to make the decision requested, and

(d) a failure by a decision-maker to make a decision within the period specified by enabling legislation or this Act for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.

  1. Section 36 of the CAT Act contains the Tribunal’s “guiding principle” to be applied to practice and procedure:

36 GUIDING PRINCIPLE TO BE APPLIED TO PRACTICE AND PROCEDURE

(1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it--

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

(3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal--

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

  1. Section 50 of the CAT outlines when a hearing is required:

50 WHEN HEARINGS ARE REQUIRED

(1) A hearing is required for proceedings in the Tribunal except--

(a) in proceedings for the granting of leave for an external or internal appeal, or

(b) in connection with the use of any resolution processes in proceedings, or

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

(d) in such other circumstances as may be prescribed by the procedural rules.

(2) 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.

(3) 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.

(4) 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.

(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.

  1. Section 38 of the CAT Act provides for the Tribunal to determine its own procedures:

38 PROCEDURE OF TRIBUNAL GENERALLY

(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) Despite subsection (2)--

(a) the Tribunal must observe the rules of evidence in--

(i) proceedings in exercise of its enforcement jurisdiction, and

(ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and

(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.

Note : Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege.

(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(5) The Tribunal is to take such measures as are reasonably practicable--

(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b) if requested to do so--to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

(6) The Tribunal--

(a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(b) may require evidence or argument to be presented orally or in writing, and

(c) in the case of a hearing--may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.

  1. Section 62 of the CAT Act provides for the Tribunal to give notice of a ‘decision’ and provide written reasons on request.

62 TRIBUNAL TO GIVE NOTICE OF DECISION AND PROVIDE WRITTEN REASONS ON REQUEST

(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(3) A written statement of reasons for the purposes of this section must set out the following--

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

(4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.

Costs application

  1. Section 60 of the CAT Act 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.

(4) If costs are to be awarded by the Tribunal, the Tribunal may--

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis.

(5) In this section--

"costs" includes--

(a) the costs of, or incidental to, proceedings in the Tribunal, and

(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

  1. The Tribunal has the discretion to depart from the ordinary rule that each party to the proceedings before it is to pay the party’s own costs and award costs if “it is satisfied that there are special circumstances warranting an award of costs”: s 60(1)-(2) of the CAT Act.

  2. For the Costs Application to be successful, the Tribunal must be satisfied that:

  1. “special circumstances” exist; and

  2. it should exercise its discretion to award the respondent his costs (see Brodyn Pty Ltd v Owners Corporation – Strata Plan 73019 (No 2) [2016] NSWCATAP 224 (Brodyn) at [21], [24]).

  1. “Special circumstances” are circumstances that are out of the ordinary but need not be those which are exceptional or extraordinary: Diaspora Holdings Pty Ltd v Owners SP 68608 [2019] NSWCATAP 250 at [17].

  2. In determining whether there are “special circumstances”, the Tribunal may have regard to the factors set out in s 60(3) of the CAT Act. The Tribunal is required to weigh up whether any of the factors in s. 60(3) of the CAT Act that are made out are sufficient to amount to “special circumstances” that justify departing from the rule that each party is to bear their own costs: see Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81]; Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75 at [14]. In Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 the Appeal Panel stated at [43]:

Section 60 has been considered in many recent decisions: see for instance CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48; and Rose Nettis Pty Ltd v Three Tall Trees Pty Ltd [2015] NSWCATAP 51. As the Appeal Panel noted in eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]:

The authorities considering the meaning of the expression "special circumstances" were recently reviewed in CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]- [31]. From those authorities, it can be seen that "special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional. Further, the discretion to award costs must be exercised judicially and having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. Each situation must, of course, be assessed on a case by case basis to see whether or not special circumstances exist so as to warrant the award of costs.

Consideration

Disqualification requests

  1. In BVV v Commissioner of Police [2021] NSWCATAD 244 (the disqualification decision) I considered the Applicant’s first request for my disqualification on the grounds of my professional associations, which was made and decided on 23 April 2021. In that decision I recounted a further request for my disqualification (the second disqualification request) made after my decision was reserved in the substantive matter. As stated at [2] to [3] of that decision:

At the resumption of the hearing on 23 April 2021, the Applicant made an application for my disqualification from hearing and determining the matter, and sought an adjournment of the hearing on that basis. After hearing submissions from both parties and considering the application, I refused to disqualify myself and consequently refused to adjourn the proceedings, bearing in mind the objects of the Civil and Administrative Tribunal Act 2013. I informed the parties that reasons for my decision to not disqualify myself would be included in the reasons for the principal decision in the substantive proceedings, which had not yet been concluded or the decision reserved at that time. The substantive hearing continued and the Tribunal reserved its decision following receipt of final written submissions from the Respondent on 30 April 2021.

On 14 July 2021 the Tribunal received a further request from the Applicant for me to disqualify myself, on the basis that written reasons had not been provided for the request made on 23 April 2021 within 28 days. This is despite the parties being informed on 23 April 2021 that reasons would be provided with the substantive decision, and the decision being reserved.

  1. The written reasons for the decision made 23 April 2021 in BVV v Commissioner of Police [2021] NSWCATAD 244 were published on 17 August 2021 and dealt with the Applicant’s allegations that certain of my past professional associations lead to apprehended bias. The substantive decision and its reasons were published separately on 20 August 2021 in BVV v Commissioner of Police [2021] NSWCATAD 250.

  2. The first and second disqualification requests were raised again by the Applicant as part of Grounds 1, 2, and 3 of the BVV Appeal. They were dismissed by the Appeal Panel. I rely on the reasons in BVV v Commissioner of Police [2021] NSWCATAD 244, BVV v Commissioner of Police [2021] NSWCATAD 250 and the BVV Appeal to again refuse the first and second disqualification requests.

  3. In submissions dated 13 December 2021 the Applicant raised a further two grounds for my disqualification, which I will refer to as “the third disqualification request”. First, he alleged that there had been ex-parte communications between the Respondent and the Tribunal. Second, he alleged that my refusal to provide written reasons for declining to vary or amend the orders I made on 3 November 2021 constituted a decision pursuant to s 62 of the CAT Act, requiring written reasons to be provided within 28 days of a request pursuant to s 62(2) of the CAT Act, and that my failure to provide those reasons within 28 days amounted to a ground for my disqualification. I’ll address each of those two grounds in turn.

Disqualification request for ex-parte communication

  1. The first ground of the Applicant’s third disqualification request made on 13 December 2021 was articulated as:

In November 2021, the applicant became aware that the respondent’s legal representative engaged in ex parte communications with the Tribunal, namely by making submissions to Senior Member Dinnen by email on 23 April 2021 without copying the applicant into that email.

  1. The 23 April 2021 email the Applicant is referring to contained a Microsoft Word version of the Respondent’s submissions, which had originally been filed and served on the Applicant on 8 March 2021. This was provided by the Respondent, at the Tribunal’s request, to the Tribunal’s division email address. It was not provided directly to me by the Respondent and does not constitute ex-parte communication.

  2. In Ken Tugrul v Tarrants Financial Consultants Pty Ltd (In liq) (No 2) [2013] NSWSC 1971 at [21] the Supreme Court provided guidelines for acceptable communications between a party and a judge’s chambers:

[21] There should be no communication (written or oral) with a judge’s chambers in connection with any proceedings before that judge without the prior knowledge and consent of all active parties to those proceedings. Particularly in relation to written communications, given the ubiquity and speed of emails, the precise terms of any proposed communication with a judge’s chambers should be provided to the other parties for their consent.

There are four exceptions to this:

1. trivial matters of practice, procedure or administration (eg the start time or location of a matter, or whether the judge is robing)

2. ex parte matters

3. where the communication responds to one from the judge’s chambers or is authorised by an existing order or direction (eg for the filing of material physically or electronically with a judge’s associate), and

4. exceptional circumstances.

  1. Even if it the email had been sent directly to me by the Respondent and therefore constituted an ex-parte communication, it would not amount to a basis for apprehended bias for the following reasons:

  1. because the communication was made in response to the Tribunal’s request, so it was authorised by an existing direction. The request for a Microsoft Word version of the submissions to be sent to the Tribunal by the Respondent was made by me at the conclusion of the oral hearing on 23 April 2021. As discussed at [26] of the substantive decision, the Applicant chose not to appear and be heard on that occasion, and the hearing concluded on an ex-parte basis.

  2. The submissions which were sent to the Tribunal by email on 23 April 2021 had already been filed and served on the Applicant more than a month prior to the hearing on 8 March 2021, so he cannot submit that he was unaware of the arguments or issues raised therein which would be considered by the Tribunal.

  3. There is no obligation on the Respondent to provide the Applicant with an editable version of its filed submissions, and for the reasons explained above there is no disadvantage or detriment caused to the Applicant by the Respondent’s failure to copy him into the email correspondence.

  1. There is nothing unusual or improper about the Tribunal making a request of this nature (see, e.g., orders 33-35 made by his Honour Justice Lee, in Australian Securities and Investments Commission v Westpac Banking Corporation (No 2) [2021] FCA 1007).

  2. The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is objective: “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Johnson v Johnson (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [11] (Ebner). The two step process involved was explained by the High Court in Ebner in the following way at [8]:

First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

  1. The application of the test for apprehension of bias requires two steps: first, “it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits: Ebner at [8]. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed: Ebner at [8]; Charisteas v Charisteas [2021] HCA 29 at [11].

  2. An application for disqualification should be determined by the decision-maker whose disqualification is sought, and should not involve a contest on the facts: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240.

  3. There was nothing about the contents of the communication itself, or the circumstances surrounding it, that would serve as a basis upon which a fair-minded lay observer might reasonably apprehend that I would not bring an impartial mind to the hearing of the Costs Application.

Disqualification requests for procedural unfairness

  1. The second ground raised by the Applicant in his third disqualification request, via his submissions of 13 December 2021, involves my refusal to provide written reasons for declining to vary or amend the orders I made on 3 November 2021 as a ground for my disqualification. The Applicant characterises this as a decision pursuant to s 62 of the CAT Act, requiring written reasons to be provided within 28 days of a request pursuant to s 62(2) of the CAT Act:

10. On 12 November 2021, the applicant requested a written statement of reasons for Senior Member Dinnen’s decision to decline to vary or amend the orders made on 3 November 2021, pursuant to section 62 of the Civil and Administrative Tribunal Act 2013.

11.   That same date, the Registrar advised that written reasons will be provided to all parties within 28 days of the request.

12.   Senior Member Dinnen has, once again, not complied with the statutory obligation to provide written reasons within 28 days after the applicant’s request on 12 November 2021.

13.   The failure of Senior Member Dinnen to comply with the statutory obligation to provide written reasons amounts to procedural unfairness.

  1. The Applicant’s ground for his second disqualification request, and the second ground for the third disqualification request, are the same: that my alleged failures to comply with s 62 of the CAT Act amount to procedural unfairness, as well as giving rise to an apprehension of bias warranting my disqualification from hearing and determining the matter before me.

  2. Section 38(1) of the CAT Act makes clear that it is the Tribunal’s role to determine its own procedure. The determination of its procedure is not a “decision” within the meaning of s 62 of the CAT Act. The Tribunal’s procedure is determined by it with reference to its guiding principle to facilitate the “just, quick and cheap resolution of the real issues in the proceedings”: s 36(1) of the CAT Act. The parties to proceedings have “a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal”: s 36(3) of the CAT Act.

  3. Not all the procedural directions made in a directions hearing would be a “decision” as defined in s 5 of the CAT Act to which the obligation imposed by s 62 of the CAT Act would apply. As the Court of Appeal noted in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [68], even superior courts are not required to give reasons for every interlocutory decision (citing Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]). As discussed by the Appeal panel in Zonnevylle v Minister for Education & Early Childhood Learning [2021] NSWCATAP 398 at [24] to [25], directions for parties to make submissions are not a ‘decision’ within the meaning of s 5 of the CAT Act and the provision of written reasons at the request of a party pursuant to s 62(2) of the CAT Act does not apply:

…we are inclined to the view that a direction for the parties to make a submission is not a decision within the meaning of the definition of “decision” contained in s 5 the NCAT Act. That section defines a decision in inclusive terms and the direction does not, in our view, respond to any of the kinds of decisions described in subsections (1)(a) to (f). Subsection (g) includes the definition of a decision as “doing or refusing to do any other act or thing”. In our view a direction to make a submission is not a decision requiring a party to do an act or thing. Rather it is a statement that a party has an opportunity to be heard, being a preliminary step before a decision is made.

We note that the word “direction” is contained within s5(1)(b). By that subsection a decision includes “giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission”. We remain of the view that that subsection does not include a decision requiring a party to make a submission but is intended to include a direction of a more substantive nature. That is apparent from the other kinds of decisions referred to in the subsection, namely giving, suspending, revoking or refusing to give a certificate, approval, consent or permission

  1. The manner in which the Tribunal dealt with the Applicant’s third disqualification decision was not a ‘decision’ within the meaning of s 62 of the CAT Act. The orders made by me on 3 November 2021 were also not a ‘decision’ within the meaning of s 62 of the CAT Act. They were procedural orders or directions for the filing and service of evidence and submissions by the parties in relation to each of the applications for miscellaneous matters filed by them.

  2. Had the Applicant appeared at the directions hearing on 3 November 2021, he would have been provided with an opportunity on that occasion to make a submission as to the form and timing of those orders. He chose not to attend and instead made an email request to the Tribunal, three days later, that the timetable and orders be amended to suit his view of how the Tribunal should conduct the proceedings, as per paragraph 5 above.

  3. My refusal or failure to amend or vary those orders at the Applicant’s request is also not a ‘decision’ within the meaning of s 62 of the CAT Act, for the same reasons that the making of the orders was not a ‘decision’.

  4. The fact that a decision-maker makes a ruling on a procedural issue does not, of itself, demonstrate that the decision-maker does not bring an impartial mind to bear upon the determination of the issues in the matter: Zonneyville v Secretary, NSW Department of Education [2022] NSWCATAD 56 at [12].

  5. As was the case in relation to the Applicant’s first request for my disqualification considered in BVV v Commissioner of Police [2021] NSWCATAD 244, the Applicant did not make any submissions logically or reasonably articulating how the conduct by which I was alleged to be biased would or could impact my decision making in relation to the specific issues in these proceedings involving privacy legislation.

  1. Similarly, in relation to the remaining issues for determination by the Tribunal in these proceedings, being the Respondent’s costs application, the Applicant has not articulated any logical or reasoned basis upon which my alleged failure to provide reasons pursuant to s 62(2) of the CAT Act or an alleged denial of procedural fairness towards him in my conduct of the matter would or could impact my decision making. His submissions seem to assume that a denial of procedural fairness or an alleged failure to comply with a statutory obligation automatically gives rise to an apprehension of bias, when it does not.

  2. Even if the Applicant satisfied the second part of the test in Ebner and was able to demonstrate a logical connection between an alleged failure to provide reasons or an alleged denial of procedural fairness in the conduct of the matter, the Tribunal would also need to assess and determine whether or not the asserted apprehension of bias is reasonable. The asserted apprehension of bias is not reasonable in circumstances where the Tribunal is empowered to determine its own procedure and where the Applicant has been given reasonable opportunity to have his applications – both substantive and consequential – heard, considered and determined.

  3. The Applicant’s second ground for my disqualification is therefore not valid because there was no obligation for me to provide reasons pursuant to s 62 of the CAT Act for the procedural directions or orders I made on 3 November 2021, or for my refusal to amend or vary those orders on 12 November 2021. There is no denial of procedural fairness and there is no reasonable basis for an apprehension of bias.

Costs application

  1. I am satisfied that the Applicant has been given ample opportunity to put on any evidence and make any submissions as to the Respondent’s costs application, but has chosen not to do so.

  2. The Respondent relied on ss 60(3)(a)-(c), (e), (f) and (g) of the CAT Act as relevant to the Tribunal’s assessment of special circumstances warranting an award of costs in these proceedings. I address each of the Respondent’s submissions in turn below.

Applicant conducted the proceedings in a way that unnecessarily disadvantaged the respondent (s 60(3)(a) of the CAT Act)

  1. The respondent submitted that the applicant conducted the proceedings in a way that unnecessarily disadvantaged the respondent when regard is had to:

  1. the applicant’s failure to produce copies of the “other related settlement documents” that were emailed to him on 18 November 2019 by icare, despite repeated requests made on 13 January 2020, 3 August 2020 and 9 February 2021 because they “undermined his complaint in these proceedings”: BVV v Commissioner of Police [2021] NSWCATAD 250 at [52];

  2. the applicant’s failure to respond to the respondent’s request to revoke or vary the order made on 25 February 2020 under s 64(1)(a) of the CAT Act that prohibited the publication or broadcast of the applicant’s name in order to conduct the internal review and notify the Privacy Commissioner under s 54 of the Privacy and Personal Information Protection Act 1998 (PPIP Act), in circumstances where the applicant had commenced separate proceedings (NCAT case no. 20/25410) alleging that the respondent was in contempt of similarly framed orders in other privacy proceedings between the parties (NCAT case no. 2019/127295) because of an internal communication of his name within the NSWPF between the unit that exercised the NSWPF’s functions under the PPIP Act and the unit that deals with applications under the Government Information (Public Access) Act 2009; and

  3. the applicant’s interlocutory application dated 24 January 2021 that sought to require the respondent to lodge a copy of the document referred to at 1.3(l) and 7.40 of the internal review decision dated 15 September 2020, despite being previously advised on 19 October 2020 that the document was contained in the confidential bundle associated with the respondent’s application under s 59 of the Administrative Decisions Review Act 1997 (the ADR Act).

  1. On 14 January 2020 the Respondent made an application for the substantive proceedings to be summarily dismissed on the basis that the applicant had not lodged a valid application for internal review under s 53 of the PPIP Act because it did not “describe the impugned conduct with sufficient detail”: see BVV v Commissioner of Police [2020] NSWCATAD 182. This application was unsuccessful. The Respondent submitted that, had the Applicant provided the “other related settlement documents” when requested on 13 January 2020, it would have been apparent that the applicant was aware of the relevant conduct in 2011 (and not 18 November 2019 as stated in the application) and was out of time for the purposes of s 53(3)(d) of the PPIP Act. This would have provided an additional and stronger ground for the Respondent’s dismissal application.

  2. I agree that the Applicant’s withholding of the “other related settlement documents” unnecessarily disadvantaged the respondent. These were central to the Applicant’s claim and he deliberately withheld them because they undermined his complaint: see BVV v Commissioner of Police [2021] NSWCATAD 250 at [51] and [52]. I also agree that the Applicant’s conduct as described at 51(2) and 51(3) above unnecessarily disadvantaged the Respondent in these proceedings.

Applicant has been responsible for prolonging unreasonably the time taken to complete the proceedings (s 60(3)(b) of the CAT Act)

  1. The respondent submitted that the applicant was responsible for prolonging unreasonably the time taken to complete the proceedings by:

  1. failing to comply with the timetabling orders made by the Tribunal on 20 October 2020, which required them to be varied on 19 January 2021, whereby the applicant filed and served:

  1. his submissions in response to the application under s 59 of the ADR Act on 6 December 2020 (five days later than provided for in the timetable made on 20 October 2021);

  2. his evidence in support of his substantive application on 14 December 2020 (13 days later than provided for in the timetable made on 20 October 2021); and

  3. his submissions in support of his substantive application on 22 January 2021 (52 days later than provided for in the timetable made on 20 October 2021);

  1. making interlocutory applications to try to prevent the “other related settlement documents” that were produced under summons by icare and separately by one of the respondent’s witnesses from being put before the Tribunal, or otherwise delay the hearing of his substantive application, including:

  1. a complaint made on 2 March 2021 that he had been denied procedural fairness because he was not called on the second return date for the summons issued to icare at the respondent’s request (being 1 March 2021), despite not previously raising any objection on the first return date (being 25 February 2021) to general access orders being made; and

  2. adjournment applications on 1 April 2021, the day of the hearing, so that he could review the “other related settlement documents” produced under summons by icare, despite being aware that general access orders had been made since 2 March 2021 and familiar with the process of accessing documents produced under summons (BVV v Commissioner of Police [2021] NSWCATAD 250 at [21]) and otherwise being in possession of those documents since 18 November 2019, in order to:

  1. seek legal advice (BVV v Commissioner of Police [2021] NSWCATAD 250 at [20]); and

  2. determine whether the documents produced under summons had been altered from the originals which he kept in personal storage (BVV v Commissioner of Police [2021] NSWCATAD 250 at [22]);

  1. deliberately terminating his participation in the hearing on 23 April 2021 by hanging up and not subsequently picking up the telephone when called (BVV v Commissioner of Police [2021] NSWCATAD 250 at [26]), despite requiring the respondent to go through the effort of making his witnesses available for cross-examination on that day after the hearing was part heard on 1 April 2021;

  2. making unmeritorious applications for Senior Member Dinnen to disqualify herself; and

  3. deliberately deciding not to appear at a directions hearing on 3 November 2021 and then seeking to vary the orders made at the directions hearing three days later without providing any explanation as to why he could not and did not attend.

  1. I don’t agree that the delays referred to at [54(1)(a)] or [54(1)(b)] above constitute an unreasonable prolonging of the proceedings, as an amendment to the timetable was not required or sought as a consequence. I also do not agree that the Applicant’s making of a complaint as referred to above at 54(2)(a) had any impact on the length of the proceedings, as complaints are dealt with entirely separate to any proceedings. I do, however, agree that the delay of 52 days referred to above at 54(1)(c) unreasonably prolonged the proceedings by causing an extension of the timetable to hearing, and that the Applicant unreasonably prolonged the time taken to complete the proceedings as described above at 54(2)(b), 54(3), 54(4), and 54(5). Each of those events or incidents caused the Tribunal to have to extend the proceedings being finalised to allow for the Applicant’s non-compliance with orders, unreasonable conduct or unmeritorious interlocutory applications.

Relative strengths of the claims made by each of the parties (s 60(3)(c) of the CAT Act)

  1. The respondent submitted that the applicant’s case in relation to alleged privacy breaches involving the respondent’s conduct was weak. This should be inferred from the applicant’s refusal on multiple occasions to provide the “other related settlement documents” referred to in the email dated 18 November 2019 from icare, including the “Authority to Receive”, that the applicant was well aware that his complaint that the respondent breached ss 12(c) or 18 of the PPIP Act by providing a copy of the Deed of Release between the applicant and the NSWPF executed on 22 November 2011 to Employers Mutual Limited, the NSWPF’s workplace compensation claims manager, so that the applicant could be paid the settlement amount in relation to his workers compensation claim under the Deed, had no tenable basis in fact or law. That is, the claim could not have possibly succeeded given the applicant had signed an “Authority to Receive” addressed to “DLA Piper solicitors for NSW Police Force & Employers Mutual Ltd” on 22 November 2011.

  2. I agree with the Respondent’s submission.

Proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance (s 60(3)(e) of the CAT Act)

  1. The respondent submitted that these proceedings as brought by the Applicant were clearly frivolous, vexatious or otherwise lacking in substance.

  2. Proceedings are “vexatious” if they “are productive of serious and unjustified trouble or harassment”, including if they are brought for a collateral purpose, even if they invoke an available legal right: Regie Nationale des Usines Renault SA & Anor v Zhang (2002) 210 CLR 491 at [25]; Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491. Proceedings are “frivolous” if they cannot possibly succeed on their face, are manifestly groundless or are paltry or trifling: Shi Shi Cindy Lee v Dr Geoffrey Lee [2014] NSWCATCD 181 at [31]-[32]. Proceedings are “lacking in substance” if the complaint is based on an “untenable proposition of fact or law” or is otherwise not “reasonably arguable”: Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].

  3. The respondent submitted that the Tribunal should infer that the applicant brought these proceedings for a collateral purpose when regard is had to:

  1. the “other related settlement documents” being in his possession at the time he made the application for internal review;

  2. the applicant’s refusal to provide the “other related settlement documents” despite multiple requests, as referred to above at [51(1)];

  3. the applicant’s poor explanation for not providing the other related settlement documents, namely, because he “was concerned with the confidentiality of the Deed, and not the other docs” and had “formed the view that it wasn’t relevant” (BVV v Commissioner of Police [2021] NSWCATAD 250 at [33]);

  4. the applicant’s baseless contention that the “other related settlement documents” had been altered (BVV v Commissioner of Police [2021] NSWCATAD 250 at [22]-[23]); and

  5. the applicant’s refusal to produce the originals of the “other related settlement documents”, despite them being called for by the respondent.

  1. I disagree with the Respondent’s submission that the Applicant’s complaint was vexatious. Proceedings may be vexatious if a party brings them for a collateral purpose, and not for the purpose of having the court or Tribunal determine the issues to which they give rise. Although it is clear that the proceedings caused the Respondent significant cost and caused its legal representatives annoyance, I cannot find that the proceedings were brought for a collateral purpose. It may be that the proceedings had the effect of satisfying a collateral purpose for the Applicant, but I do not infer from the evidence before me that the proceedings were initiated and maintained by the Applicant for that reason.

  2. I agree for the reasons set out above at [56] that the Applicant’s application was lacking in substance, based on an untenable proposition of fact, and therefore was not reasonably arguable.

Applicant has failed to comply with the duty imposed by s 36(3) (s 60(3)(f) of the CAT Act)

  1. The respondent submits that the applicant has failed to comply with the duty imposed by s 36(3) of the CAT Act. That provision requires a party to the proceedings to “co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal”. The Respondent submitted that the Applicant:

  1. failed to comply with the timetabling orders as noted above at [54(1)];

  2. failed to file or provide documents that were relevant to the issues for determination in these proceedings where were in his possession and then made “artificial complaints of procedural unfairness and sought to adjourn or stay the proceedings to prevent their inclusion in the evidence before the Tribunal” (BVV v Commissioner of Police [2021] NSWCATAD 250 at [52]); and

  3. failed to respond promptly to correspondence seeking to vary orders made under s. 64(1)(a) of the CAT Act as noted above at [51(2)].

  1. I agree with those submissions and find that the Applicant has failed to comply with the duties imposed on him by s 36(3) of the CAT Act.

Other matters that the Tribunal should consider relevant (s 60(3)(g) of the CAT Act)

  1. The respondent submitted that limited weight should be placed on the fact that the applicant has been self-represented, having regard to the following:

  1. the applicant has previous experience in bringing privacy proceedings in the administrative and equal opportunity division of the Tribunal (see, eg, DVT v Commissioner of Police (No 5) [2020] NSWCATAD 311 and BYW v Commissioner of Police, NSW Police Force [2014] NSWCATAD 53) and is therefore well aware of the limits of the Tribunal’s jurisdiction in reviewing the conduct of an agency that is alleged to have breached the PPIP Act;

  2. the applicant is an “experienced litigator in a number of courts and tribunals” and an “indefatigable litigant”; and

  3. the applicant was on notice that the respondent may seek his costs in these proceedings.

  1. The Respondent conceded that it is unlikely that the applicant has the financial capacity to meet the costs order, given that the applicant is subject to a sequestration order. The Tribunal has previously considered this to be a relevant consideration in determining whether there are “special circumstances”: see generally Scott-Brydges v Lismore City Council (No 2) [2018] NSWCATAD 265 at [42]. However, it is well established that the impecuniosity of the applicant is not relevant to whether a costs order should be made: see Northern Territory of Australia v Sangare (2019) 265 CLR 164 at [26], [35]. The Respondent submitted that the applicant’s ability to pay the Respondent’s costs is not a relevant consideration under s 60(3)(g) of the CAT Act.

  2. I accept the Respondent’s submissions.

Whether special circumstances exist

  1. Taking into account all the matters expressed above at [51] to [67] above, the Applicant’s conduct of the proceedings, and bearing in mind that the Applicant did not avail himself of the opportunity to make submissions and be heard in relation to the issue of costs, I find that there are special circumstances warranting an award of costs in these proceedings.

The discretion to award costs

  1. In Brodyn at [24]-[25], the Appeal Panel held that the following considerations were relevant to the exercise of the Tribunal’s discretion to award costs:

Relevant to the exercise of that discretion are those facts upon which the finding of special circumstances was based. However, those findings do not constitute the whole of the relevant matters to be considered in deciding what, if any, order for costs should be made. Rather, the principles applicable to awarding costs generally must also be taken into account. These include:

1.   Costs are compensatory: see Latoudis v Casey (1990) 170 CLR 334;

2.   That an unsuccessful party bears the costs of the successful party:    Oshlack v Richmond River Council [1998] HCA 11 at [134];

3.   Whether, by reason of the relative success of the parties on different    issues and the time taken to determine those that an order for costs    based on issues should be made; see eg Bostick Australia Pty Ltd v    Liddiard (No 2) [2009] NSWCA 304.

Further, in some circumstances where s 60 of the NCAT Act regulates an award for costs, a limited order for costs might be made to reflect the fact that only some aspects of the appeal should properly be categorised as out of the ordinary ...

  1. Having regard to the factual circumstances set out above, I am satisfied that this is an appropriate case in which to exercise the Tribunal’s discretion to award the Respondent its costs of these proceedings.

Lump sum costs order

  1. Pursuant to s 60(4)(a) of the CAT Act, the Tribunal has the discretion to determine “to what extent costs are to be paid”, which empowers the Tribunal to make a lump sum costs order: 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 (Skybloo Holdings) at [35].

  2. The principles applicable to the question of whether the Tribunal might make a lump sum costs order were summarised in Skybloo Holdings at [40], referring to eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (No 2) [2015] NSWCA 422 (eInduct Systems) and Hamod v State of New South Wales [2011] NSWCA 375 (Hamod):

40. These principles, relevantly adapted to the circumstances of the Tribunal, include:

(1) A fixed sum costs order involves a departure from the usual process by which costs are assessed in accordance with the statutory procedures now relevantly found in the Legal Profession Uniform Law Application Act 2014 (NSW) (especially Pt 7 dealing with “ordered costs”) and the Legal Profession Uniform Law (NSW), eInduct Systems at [8];

(2) A fixed sum costs order may be appropriate where:

(a) the sum of costs in question is relatively modest, eInduct Systems at [30];

(b) a party obliged to pay the costs would not be able to meet a liability of the order likely to result from the assessment, Hamod at [813], [816] and [817], eInduct Systems at [30];

(c) the assessment of costs would be protracted and expensive, Hamod at [813] and [817]; and/or

(d) the case was complex, Hamod at [815]-[817];

(3) Sections 36(1) and (4) of the NCAT Act (which can be seen as equivalent to those in ss 56(1), 57(1)(d) and 60 of the CP Act) suggest that the following factors merit particular consideration:

(a) the relative responsibility of the parties for the costs incurred;

(b) the degree of any disproportion between the issue litigated and the costs claimed;

(c) the complexity of the proceedings in relation to their cost; and

(d) the capacity of the unsuccessful party to satisfy any costs liabiltity,

Hamod at [816], Kostov at [22].

(4) An order for fixed sum costs should be based on an informed assessment of the actual costs, having regard to the information before the Tribunal. Furthermore, the approach taken to estimate the costs must be logical, fair and reasonable. This may involve an impressionistic discount of the costs actually incurred in order to take into account the contingencies that would be relevant in any formal costs assessment, Hamod at [820];

(5) The power to make a fixed sum costs order should only be exercised when the Tribunal considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available, Hamod at [813], Kostov at [23];

41. Examples of the type of material that should be available if a fixed sum costs order is to be made can be found in the decisions in Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54 at [7] and SAB Closed 1 Pty Ltd v Bees & Honey Pty Ltd; Bees & Honey Pty Ltd v SAB Closed 1 Pty Ltd [2015] NSWSC 1162 at [10]. The types of supporting material usually required include:

(1) the timing and nature of costs incurred, including details of the work done, the hours worked, the hourly rates actually charged and, in the case of counsel’s fees, similar details concerning the work done by counsel;

(2) the rates at which counsel, other lawyers and other professional advocates, if relevant, charge; and

(3) the amount likely to be recoverable on assessment in the event that that took place, which may be established by “objective arm’s length evidence from a costs assessor” (to use the language of Stevenson J in SAB Closed 1 at [10].

  1. In Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294, Beazley P, Meagher and Payne JJA set out the principles in relation to a fixed costs order at follows [12] – [18]:

[12] The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123.

[13] The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing).

[14] A “broad brush” approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7].

[15] The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814].

…

[18] The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamod v State of New South Wales at [816]-[817] is apposite

  1. The Respondent sought a lump sum figure of $60,000 for its costs.

  2. The Affidavit of Tram Nguyen dated 11 November 2021 annexed an extract from the Crown Solicitor’s legal practice management software of all time entries directly attributable to responding to the Applicant’s application for administrative review in the Tribunal, responding to the Applicant’s interlocutory applications, applying for summons to be issued after the applicant failed to provide relevant documents, and dealing with the Applicant’s non-compliance with Tribunal orders. The total cost of those time entries was $51,163.08. Having reviewed that extract I note that the time entries are attributable to seven different fee earners, with rates ranging from $145.20 per hour to $460.20 per hour, between the period 19 February 2020 and 10 November 2021. The Affidavit also annexed copies of the Respondent’s disbursements spreadsheet which included entries for travelling to file documents, filing fees, sound recording fees and transcription services totalling $1789.10 and counsel’s invoices for advice and appearances between 2 March 2021 and 16 July 2021 totalling $18,840 at $240 per hour.

  3. A further affidavit of Ms Nguyen dated 1 March 2023 added further legal costs incurred by the Respondent between 11 February 2021 and 1 March 2023 directly attributable to dealing with the Applicant’s non-compliance with the Tribunal’s orders or directions, and progressing the hearing of the costs application. The total cost of those time entries was $3744. I note that those time entries are attributable entirely to Ms Tran as a fee earner at a rate of $360 per hour. Counsel’s invoice of 21 December 2021 to settle the Respondent’s evidence and submissions for the costs hearing was $1200 at $240 per hour. Ms Nguyen also anticipated a further cost of $2560 for both herself and counsel to appear at the in-person hearing on 8 March 2023.

  4. The evidence before me demonstrates that the Respondent’s total costs of defending these proceedings, including the costs of this costs application, were $79,296.18, comprising $54,907.08 in timed entries by the Respondent’s solicitors, $21,829 in disbursements including $20,040 in counsel’s fees, and an additional $2560 for the appearance of the Respondent’s solicitor and counsel at the hearing of the costs application.

  5. The Respondent submitted that it would be appropriate for the Tribunal to make a lump sum costs order on the basis that the applicant is unlikely to be able to satisfy any costs liability, including that arising from costs assessment. It submitted $60,000 for its costs was fair and reasonable, which was a discount of 24.3% of the costs actually incurred, in line with the impressionistic discount referred to in Skybloo Holdings at [40(4)] and Hamod at [820].

  6. In my view the scale and complexity of the costs being sought militate against an impressionistic discount being applied to the costs incurred by the Respondent, and the award of a lump sum costs order. Pursuant to s 60(4)(b) of the CAT Act, I order costs to be as agreed or assessed.

Orders

  1. The Applicant’s third request for my disqualification is refused.

  2. The Applicant is to pay the Respondent’s costs of these proceedings, including the costs application, in an amount to be agreed or assessed.

**********

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: 02 June 2023

Cases Citing This Decision

0

Cases Cited

39

Statutory Material Cited

5

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Auspine Ltd v Australian Newsprint Mills Ltd [1999] FCA 673