Rima v Commissioner of Police, NSW Police Force
[2011] NSWADT 141
•08 June 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Rima v Commissioner of Police, NSW Police Force [2011] NSWADT 141 Hearing dates: 10 December 2010 Decision date: 08 June 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The Applicant is to pay the Respondent the sum of $1,250 as costs of and incidental to these proceedings.
Catchwords: Costs Legislation Cited: Administrative Decisions Tribunal Act 1997
Security Industry Act 1997Category: Costs Parties: Ali Rima (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: L Angelovski (Applicant)
S Sivarajah (Respondent)
File Number(s): 093215
REasons for decision
Mr Rima applied to the Tribunal for review of a decision by a delegate of the Commissioner of Police, NSW Police Force ("the Commissioner") to revoke the Applicant's security licence (Class 1AC). On 10 November 2010, I dismissed the application on the basis of want of prosecution, and additionally due to Mr Rima's non-appearance at the hearing on 10 November 2010.
The Commissioner has sought a costs order in respect of the entire proceedings.
Background
In support of his application the Commissioner relies on the affidavit of Sudhir Sivarajah of 10 November 2010. In his affidavit Mr Sivarajah provides a useful summary of the relevant history of these proceedings:
"4 At the first directions hearing on 15 September 2009, a timetable for filing evidence and a hearing date (15 December 2009) was set by the ADT. The Applicant was to file and serve his evidence by 30 October 2009.
First occasion of the Applicant's non-compliance with ADT directions
5 By letter dated 11 November 2009, and by consent, the then solicitor who had carriage of the matter on behalf of the Commissioner applied for an adjournment of the 15 December 2009 hearing date on the basis that the Applicant had not filed and served his evidence and the possible unavailability of the Commissioners counsel. ...
6 The adjournment application was granted and a directions hearing was listed for 24 November 2009.
7 At the directions hearing on 24 November 2009 before President O'Connor, the matter was stood over for a half day hearing to 22 January 2010 and a new timetable set. ... The applicant's solicitor, Mr Louie Angelovski, appeared by telephone.
Second occasion of the Applicant's non-compliance with ADT directions
8 By letter dated and faxed on 12 January 2010, I wrote to Mr Angelovski stating that the Applicants material was not served by 16 December 2009 pursuant to the set timetable. Further, I requested the Applicant's evidence be served by 12.00 pm on 13 January 2010. ...
9 On 13 January 2010, Mr Angelovski telephoned me and we had a conversation stating words to the following effect:
...
Angelovski; "I will aim to get the evidence to you by say Wednesday the 20"'. We will only be putting on character references" ...
10 I did not receive any references or other evidence of the Applicant from Mr Angelovski on or before 20 January 2010 or at any other time.
11 I attended the hearing before Montgomery JM on 22 January 2010 with the Commissioners counsel, Peter Skinner. At the commencement of the hearing, Mr Angelovski applied for an adjournment on the basis that the Applicant was sick on that day. Mr Angelovski indicated that a medical certificate for the Applicant would be provided to the ADT.
12 Montgomery JM adjourned the hearing to 18 March 2010 ...
14 Before the hearing was adjourned, an in-camera hearing was conducted in respect of the Commissioner's confidential evidence pursuant to s.29(3) of the Security Industry Act 1997 (SI Act) in the absence of Mr Angelovski and any member of the public.
15 By letter dated 22 January 2010, I requested that Mr Angelovski provide me with a copy of the medical certificate ...
16 I never received a response to my letter ...
Third occasion of the Applicant's non-compliance with ADT directions
17 On 18 March 2010, I attended the adjourned hearing before Montgomery JM. There was no appearance by the Applicant or his solicitor. The Applicant had not filed his evidence.
18 I applied for the matter to be dismissed on behalf of the Commissioner. The matter was stood over to 1 April 2010 for dismissal hearing.
...
20 I appeared at the dismissal hearing before Montgomery JM on 1 April 2010. The Applicant appeared in person stating that he had difficulty obtaining legal representation but that he wanted to proceed with the matter. The Applicant further stated that he hoped to obtain legal representation within the week.
21 JM Montgomery declined to dismiss the matter and adjourned the matter for a directions hearing on 20 April 2010. ...
22 I appeared at the directions hearing on 20 April 2010. Mr Angelovski appeared for the Applicant. ...
Fourth occasion of the Applicant's non-compliance with ADT directions
23 I appeared at the hearing on 10 June 2010. Mr Angelovski appeared for the Applicant and sought an adjournment. The Applicant had not filed his evidence. ...
25 The Commissioner did not oppose the adjournment of the hearing on the basis that the Applicant pay the costs of the Commissioner thrown away. The following directions and orders were made:
(a) Applicant to file and serve evidence by 1 July 2010;
(b) Respondent to file and serve evidence in reply by 22 July 2010; and
(c) Matter adjourned for a half-day hearing on 11 August 2010.
(d) The Applicant to pay the Respondents costs thrown away in the amount of $300.00 plus GST with costs to be paid within 28 days or at a time otherwise agreed".
Fifth occasion of the Applicant's non-compliance with ADT directions
26 I appeared at the hearing on 11 August 2010. Mr Angelovski appeared for the Applicant. The Applicant had not filed his evidence.
27 I recall that Mr Angelovski indicated to Montgomery JM that the Applicant was having "financial difficulties" and sought a further adjournment on the basis that the Applicant still had not filed any evidence.
28 I sought the Commissioners costs thrown away of the hearing.
29 The following orders were made:
(a) Applicant to file and serve evidence by 31 August 2010;
(b) Respondent to file and serve evidence in reply by 21 September 2010;
(c) Matter adjourned for mention on 28 September 2010 at 2 pm; and
(d) Applicant to pay the Commissioner's costs in the amount of $250.00.
Sixth occasion of the Applicant's non-compliance with ADT directions
30 I appeared at the directions hearing on 28 September 2010. Mr Angelovski appeared for the Applicant. The Applicant had not filed his evidence.
31 Mr Angelovski indicated that he would be in a position to file the Applicant's statement shortly; he was waiting on one further document concerning the Applicant's mortgage repayments and so sought a further brief adjournment apparently to facilitate this.
32 I indicated to the ADT that this would be the sixth adjournment of the proceedings and that it was inappropriate to continually adjourn the matter to accommodate the Applicant, particularly in respect of these sorts of public interest matters which are to be dealt with expeditiously. I also indicated that there were outstanding costs orders against the Applicant which had not been paid.
33 Mr Angelovski responded that his client would be able to pay the outstanding costs orders within 1 week.
34 I sought a costs order for the costs thrown away in the amount of $250 plus GST. The Applicant's solicitor opposed the costs order and sought the costs to be in the cause.
35 Montgomery JM indicated he had no problem with ordering costs, however he was concerned about the amount sought. On that basis the indicated a preparedness to accept $150 plus GST payable within 28 days. Mr Angelovski, after taking instructions, indicated that was agreeable.
36 The following directions and orders were made:
(a) The Applicant to file and serve evidence on or by Wednesday 6 October 2010;
(b) The Respondent to file and serve evidence in response on or by 27 October 2010;
(c) The matter be adjourned for directions hearing on Wednesday 3 November 2010 at 2 pm (if there is no outstanding issue namely all evidence has been filed, all outstanding costs have been paid as per (d) below, then this directions hearing can be vacated);
(d) Costs previously ordered (being in the sum of $550 plus GST) be paid within 7 days: '
(e) An order for costs of $150 plus GST for today's direction hearing be payable within 28 days; and
(f) Parties are to confer in the next few days with aim of setting a hearing date. Once parties have come to agreed times, the Registrar should be notified with the aim of setting a hearing date.
37 By letter dated 5 October 2010, I wrote to Montgomery JM in compliance with the ADT's direction at paragraph 36(f) above.
38 The Applicant attended the Crown Solicitor's Office in person on 7 October 2010 and handed me $500.00 in cash as partial payment toward the outstanding costs order of 28 September 2010 (see paragraph 36(d) above).
Seventh occasion of the Applicant's non-compliance with ADT directions
39 I appeared by telephone at a directions hearing on 2 November 2010. There was no appearance by the Applicant. The Applicant had still not filed his evidence.
40 The matter was adjourned to a dismissal hearing on 10 November 2010. ...
41 As of the date of this affidavit, I have still not received any evidence of the Applicant. Additionally, there are outstanding costs orders that have not been paid by the Applicant, and hence the Applicant is in default of those orders as well.
42 Neither Mr Angelovski nor the Applicant has never given me advanced notice of the reasons for delay which occasioned the Applicant's adjournment applications."
Applicable legislation
Section 73(5)(g)(iv) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides that the Tribunal may dismiss proceedings if it considers that there has been a want of prosecution of the proceedings. As indicated above I dismissed the application on 10 November 2010.
The power to award costs is found in section 88 of the ADT Act. The general rule is that each party bears their own costs, subject to exception. Section 88 relevantly provides:
88 Costs
(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
(4) In this section, costs includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
The Commissioner's case
The Commissioner presses for a determination of its costs application in this matter. In support of that application it relies on the affidavit of Sudhir Sivarajah of 10 November 2010. Mr Sivarajah also provided written submissions in support of the application.
It is submitted that, in light of the history of the matter set out above, a costs order pursuant to section 88(1A) of the ADT Act is fair and reasonable.
Discussion
The issue in this case is, whether in the circumstances, it is fair to depart from the general principle that each party bear their own costs, having regard to the factors set out in section 88(1A). In my opinion there are a number of factors that point to it being fair to depart from the usual rule in this case. Those factors include:
(a) Mr Rima's failure to comply with directions and orders of the ADT, which has resulted in seven adjournment applications. Mr Rima never filed any evidence in compliance with those directions: section 88(1A)(a)(i),(iii),(iv)
(b) Mr Rima's failure to give advance notice of adjournment applications which has unnecessarily resulted in the Commissioner expending wasted costs: section 88(1A)(e)
(c) the previous costs orders made against Mr Rima in respect of the his failure to comply with directions: section 88(1A)(e)
d) Mr Rima's failure to comply with those costs orders: section 88(1A)(e)
(e) Mr Rima's conduct that has been responsible for prolonging unreasonably the time taken to complete these proceedings: section 88(1A)(b)
In my view, when all these factors are taken into account, they point to the conclusion that it is fair to award costs in this case. I have given consideration to the basis on which the costs should be calculated and it is my view that an amount of $250 should be payable in relation to each of the seven hearing the days that has been thrown away. Mr Rima should pay a total of $1,750 in costs. I understand that Mr Rima has already paid $500 in costs. I therefore order that he pay the Commissioner an additional amount of $1,250 towards the Commissioner's costs of and incidental to these proceedings.
Order
The Applicant is to pay the Respondent the sum of $1,250 as costs of and incidental to these proceedings.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
Decision last updated: 08 June 2011
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