Wu v Chief Commissioner of State Revenue (No. 2)

[2019] NSWCATAD 85

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Wu v Chief Commissioner of State Revenue (No. 2) [2019] NSWCATAD 85
Hearing dates:	Determined on the papers
Date of orders:	21 May 2019
Decision date:	21 May 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Isenberg RFD, Senior Member
Decision:	Costs Orders (1) Pursuant to s 60 of the Civil and Administrative Tribunal Act 2013 Mr Wu shall pay the Chief Commissioner’s costs of and incidental to the proceedings as follows: (a)   50% of the costs incurred from 3 June 2017 to 17 August 2017, and (b)   100% of the costs incurred from 18 August 2017 to the date of publication to the parties of these reasons, providing that the said costs shall not include any costs incurred by the Chief Commissioner in relation to the Chief Commissioner’s application for a confidentiality order. (2)   The amount of costs to be paid by Mr Wu shall be as agreed between the parties or as assessed on an ordinary basis. Confidentiality Orders (3)   Order number 3 made 14 February 2019 is vacated. (4) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 and until further order of the Tribunal, access to and publication of details of the fee rates charged by counsel engaged by the Respondent in respect of the subject proceedings shall be restricted to the Applicant, his legal representatives, and any costs experts or interpreters he may engage in respect of or incidental to these proceedings. (5)   The Applicant and his legal representatives, costs experts and interpreters may only use the details of fee rates referred to in order (4) and the information referred to in order (7) for purposes of or ancillary to these proceedings. (6)   The Applicant shall on publication of these orders inform each person to whom he has provided any documents, containing any of the fee rates or information referred to in order (5), of these orders. (7)   Consequent upon order number (4), access to and publication of the following shall be restricted in accordance with order (4). All references to amounts are to monetary amounts. Orders (b) to (d) relate to pages of KMK-2: (a)   All amounts in paragraph [5] of the affidavit of Kathleen Margaret Kerr made 30 January 2019. (b)   Page 1, all amounts. (c)   Pages 41 to 45 and 58 to 66, all amounts, and. (d)   Pages 46, 48, 49, 52 and 54 to 57, all amounts and all references to hours or parts of an hour.
Catchwords:	COSTS –whether there were special circumstances and if so did they warrant an order for costs – s 60 Civil and Administrative Tribunal Act 2013 - - credibility of the Applicant and his witnesses – conduct of the Applicant. PROCEDURE – application for suppression orders – claimed confidential nature of material – s 64 Civil and Administrative Tribunal Act – application for non-publication order in respect of documents relating to fees charged by a government agency to another government agency and by a barrister to a government agency – grounds for non-publication – whether disclosure not in the public interest – whether real risk if application for non-publication order refused – whether desirable to make an order.
Legislation Cited:	Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Uniform Law Application Act 2004 (NSW) Taxation Administration Act 1996 (NSW)
Cases Cited:	Administrative Decisions Tribunal in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 Ceepee Pty Ltd v Roads and Maritime Services [2015] NSWCATAD 130 Colgate Palmolive v Cusson (1993) 46 FCR 225 Crest Homes Plc v Marks [1987] AC 829 Gaynor v Burns [2015] NSWCATAP 150 Hearne v Street (2008) 235 CLR 125 Lin v Chief Commissioner of State Revenue [2018] NSWCATAD 98 Peng v Chief Commissioner of State Revenue [2009] NSWADT 295 Rapisarda v Commissioner of Police, NSW Police Force; Housego v Commissioner of Police, NSW Police Force; Sheehy v Commissioner of Police, NSW Police Force; McDonald v Commissioner of Police, NSW Police Force [2018] NSWCATAD 34 Tri-Star Petroleum Company & Ors v Australia Pacific LNG Pty Limited & Ors [2017] QSC 136 Wu v Chief Commissioner of State Revenue [2018] NSWCATAD 292
Texts Cited:	Nil
Category:	Costs
Parties:	Pei Long Wu (Applicant) Chief Commissioner of State Revenue (Respondent)
Representation:	Counsel: AH Rider (Respondent)   Solicitors: Applicant (self-represented) Crown Solicitor (Respondent)
File Number(s):	2015/383474
Publication restriction:	Subject to further order, these reasons for decision and the information referred to in orders (7)(a) to (d) are not to be released to the public until 7 days after they have been provided to the parties.

Judgment

REASONS FOR DECISION

Background

1. Mr Wu applied to the Tribunal to review a decision by the Respondent (sometimes called the Chief Commissioner in these reasons) to assess Mr Wu’s liability to pay land tax for several years (the Relevant Period) in respect of a particular property Mr Wu owned. The property (the Land) is situated at Belrose in New South Wales and was owned by Mr Wu at all relevant times.

2. Mr Wu claimed he has the benefit of a statutory exemption from land tax throughout the Relevant Period because the Land was or was deemed to be his principal place of residence. Mr Wu substantially relied on his credit and the credit of his witnesses. Mr Wu’s claims included that the Chief Commissioner intentionally destroyed old documents on which Mr Wu relied, and the Chief Commissioner’s witnesses were variously weak and insufficient to disprove his residence at the Land. Mr Wu also claimed that the Chief Commissioner had a burden of proof which he had not satisfied.

3. The Chief Commissioner claimed that no such exemption applied because Mr Wu did not reside at the Land, the evidence of Mr Wu and his witnesses was not reliable, documents produced by Mr Wu were not relevant, the onus of proof lay on Mr Wu not the Chief Commissioner, and the Chief Commissioner’s substantial documentary evidence and witnesses were objective and reliable.

4. I found in favour of the Chief Commissioner in relation to the land tax dispute and affirmed his relevant assessments. My decision and reasons are set out in Wu v Chief Commissioner of State Revenue [2018] NSWCATAD 292 (the 2018 decision).

5. During the substantive proceedings in relation to the land tax dispute (the 2018 proceedings) the Chief Commissioner indicated that, irrespective of the result of Mr Wu’s application to the Tribunal, he (the Chief Commissioner) intended applying for an order for costs. The Chief Commissioner also applied for a confidentiality order in respect of certain documents and information he produced in the course of his costs’ application.

The issues

6. The issues for determination by the Tribunal are

1. the Chief Commissioner’s costs application, and

2. the Chief Commissioner’s application for confidentiality.

Determination on the papers

7. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) hearings are required for Tribunal proceedings, subject to exceptions outlined in that section. Generally, hearings are open to the public unless the Tribunal orders otherwise, s 49 CAT Act. One of the exceptions provided by s 50 is that the Tribunal may dispense with a hearing if it is satisfied that the relevant issues can be adequately determined in the absence of the parties by considering any written material provided to the Tribunal and the Tribunal has afforded the parties an opportunity to make submissions about the proposed order and taken any such submissions into account.

8. I am satisfied that both issues can be adequately determined by the Tribunal in the absence of the parties by a consideration of material provided to the Tribunal.

9. The parties were afforded an opportunity to make submissions as to whether the Tribunal should make an order dispensing with a hearing in respect of each of the issues. Both parties consented to the Tribunal dispensing with a hearing in respect of both issues and the determination being made on the papers. I decided to determine both issues on the papers and dispensed with a hearing.

10. All references in these reasons to legislative provisions are to the CAT Act unless stated to the contrary.

Material before the Tribunal.

11. The Chief Commissioner relied on:

1. written submissions on costs dated 30 January 2019 (RSCOS) and written submissions in reply on costs dated 12 February 2019;

2. unsigned written submissions dated 21 February 2019 on the application for a confidentiality order (RSCON)

3. a letter from the Crown Solicitor’s Office (CSO) to the Tribunal dated and received 21 February 2019 (the 21 February letter) in relation to the requested confidentiality orders.

4. affidavit of Kathleen Margaret Kerr affirmed 26 July 2018, (the first Kerr affidavit) with 96 pages of exhibits marked KMK-1; and

5. affidavit of Kathleen Margaret Kerr made 30 January 2019, (the second Kerr affidavit) with 66 pages of exhibits marked KMK-2.

12. Mr Wu relied on:

1. his undated written submissions on costs filed with the Tribunal on 7 February 2019 (ASCOS).

2. his undated written submissions in reply, on the application for a confidentiality order, filed 28 February 2019 (ASRCON); and

3. Mr Wu’s affidavit affirmed 7 February 2019 with 14 pages of exhibits, marked PLW-1

Consideration of the costs application

The Tribunal’s power to award costs

13. The principles as to the award of costs in the Tribunal are well-settled. Section 60(1) provides that each party to proceedings pays their own costs. Notwithstanding s 60(1) the Tribunal may award costs subject to a precondition that the Tribunal is satisfied that special circumstances exist which warrant such an award, s 60(2). All references in these reasons to conduct constituting “special circumstances” are to special circumstances for the purpose of s 60.

14. Section 60(4) states that if the Tribunal does award costs, it may determine by whom and to what extent costs are to be paid, and order costs to be assessed in accordance with legal costs legislation pursuant to the Legal Profession Uniform Law Application Act 2004 (NSW) or on any other basis.

15. “Costs” are defined in s 60(5) as including:

(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 … [and] the costs of or incidental to the application …

16. In Ceepee Pty Ltd v Roads and Maritime Services [2015] NSWCATAD 130 (Ceepee) Montgomery SM said:

10 Where a court or a tribunal is conferred with the discretion to award costs, such discretion must be exercised judicially and not capriciously (Oshlack v Richmond River City Council (1998) 193 CLR 72 at 81). The fundamental rationale for the awarding of costs is that such an award is compensatory, not punitive: Latoudis v Casey (1990) 170 CLR 534 at 543; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97.

…

17 It is the applicant for costs who bears the onus of establishing an entitlement to costs in a jurisdiction where the primary rule is that each party bears their own costs: Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48 at paragraph [18].

Special circumstances

17. In Lin v Chief Commissioner of State Revenue [2018] NSWCATAD 98, another costs application by the Chief Commissioner in relation to a failed taxpayers’ application concerning a land tax assessment, I said:

8 The term “special circumstances” is not defined in s 60 or elsewhere. However, s 60(3) provides that, in making a determination as to whether there are special circumstances which warrant a costs award, the Tribunal may have regard to the matters set out in paragraphs (a) to (f) of s 60(3) as well as “any other matter that the Tribunal considers relevant”, s 60(3)(g).

9 In A J Holdings (NSW) Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 143, (AJ Holdings) Sorensen SM said:

14 It is not enough or sufficient to exercise the discretion that the circumstances are “special”; the special circumstances identified must also “warrant” an order for costs: B and L Linings Pty Ltd and Anor v Chief Commissioner of State Revenue (No 4) (RD) [2008] NSWADTAP 14 (B & L Linings) at [56]; Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [18-21] (Fitzpatrick Investments).

15 … For the purposes of s 60(2), “special circumstances” are circumstances surrounding the conduct of the case that are out of the ordinary, but without having to be extraordinary or exceptional: Megerditchian at [11], Spiteri at [54], [60], eMove at [48], B & L Linings at [56-69], CPD Holdings Pty Ltd (t/as Bathroom Exchange) v Baguley [2015] NSWCATAP 21 (CPD) at [24], [29], [30], [32]. It seems the core of the idea of “special circumstances” is that there is something unusual or different to take the matter out of the ordinary course: Fitzpatrick Investments at [19].

10 The above description of “special circumstances” has been applied in numerous cases including those referred to in AJ Holdings at [15], in Redmadi Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 231 at [137], and in Fitzpatrick Investments at [17] and [20]. In particular, at [60] in CRIPPS and Another v G & M DAWSON Pty Ltd and Another; G & M DAWSON Pty Ltd and Another v CRIPPS and Another [2006] NSWCA 81, Santow JA, with whom Mason P and Brownie JA agreed, said that for special circumstances to apply in relation to an application by the Chief Commissioner for costs before the Tribunal and Appeal Panel of the Tribunal’s predecessor, the Administrative Decisions Tribunal (ADT), (in respect of relevantly identical legislation concerning the award of costs) “For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional.”.

18. Both parties made submissions in relation to special circumstances and the sub-sections of s 60(3). I deal below with the various submissions and sub-sections. However, for convenience, I do not deal with the sub-sections in numerical order.

Section 60(3)(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,

19. The Chief Commissioner submitted that the Tribunal found that Mr Wu’s witnesses were unreliable and rejected their evidence, and the Tribunal dismissed Mr Wu’s case.

20. Mr Wu submitted that he had the reasonable belief that he had a strong case because:

1. he lived at the property for relevant years;

2. multiple witnesses attested to his residence at the Land;

3. the Tribunal held the 2004 and 2005 assessments could be regarded as conclusive evidence that for those tax years the Land was his principal place of residence; and

4. before the hearing the Chief Commissioner had not raised the requirement that he (Mr Wu) would need to prove where he was otherwise residing in order to enjoy an absentee concession.

21. In relation to the Chief Commissioner’s submission, the mere fact that the Tribunal found that some evidence of some of an applicant’s witnesses was unreliable, rejected that evidence and dismissed the applicant’s case, is not by itself out of the ordinary and does not constitute special circumstances.

22. In relation to Mr Wu’s above submissions:

1. In the 2018 proceedings Mr Wu did not satisfy me that he used and occupied the Land as his principal place of residence at any relevant date or for any relevant period other than in respect of a deeming provision concerning the 2004 and 2005 land tax years which I mention below.

2. I observed, in relation to Mr Wu’s “multiple witnesses” attesting that he relevantly resided at the Land as his principal place of residence that Mr Wu relied heavily on his credit and that of his witnesses, with minimal reliance on documentary evidence.

3. Mr Wu’s witnesses were Mr Pickworth, Ms Ye, Mr Pan, Mr Hung and Mr Coster. In the 2018 decision I made the following findings in relation to the evidence of those witnesses.

1. Mr Pickworth’s evidence - At [36] I found “…Mr Pickworth’s statement is of no particular assistance in satisfying Mr Wu's onus to prove his case”.

2. Ms Ye’s evidence - At [64] I found Ms Ye’s evidence to be vague, internally inconsistent, in some respects highly implausible. She appeared forgetful, uncertain and frequently retracted her previous evidence.

3. Mr Pan’s evidence - I found at [70] that Mr Pan failed to provide clear answers; at [73] he was non-responsive and evasive; at [77] he answered a question he had not been asked with the apparent intention of supporting part of Mr Wu’s case; at [79] and [85] I found that some of Mr Pan’s evidence was “highly implausible”; and at [86] I found there were unexplained discrepancies in his evidence in what appeared to be a direct contradiction of his affidavit.

4. Mr Hung’s evidence - At [95] and [104] I observed that Mr Hung changed his evidence, in part as previous inconsistencies were brought to his attention; at [97] it seemed to me that if Mr Hung had the experience in the insurance industry he said he had, he would not have given the evidence he gave; at [110] I found Mr Hung’s answers to many questions were vague and “I formed the opinion that Mr Hung was very forgetful or less than frank in answering a number of questions put to him” and at [113] I said I could not give any great weight to aspects of Mr Hung’s evidence without photographic corroboration.

5. Mr Coster’s evidence - At [131] I found “Mr Coster’s evidence was vague in relation to much of its detail. Mr Coster was not responsive to many of the questions asked and changed his evidence in relation to various matters”.

23. Having regard to my findings to the effect that much of the evidence from Mr Wu’s witnesses was either unreliable or not relevant I reject Mr Wu’s submission that he had a strong case because multiple witnesses attested to his residence at the Land.

1. The evidence in relation to the 2004 and 2005 tax years, is that the Chief Commissioner issued amended assessments in favour of Mr Wu based solely on Mr Wu’s untested statements. Section 119 of the Taxation Administration Act 1996 (NSW) (the TA Act) provides:

Production of a notice of assessment, or of a document signed by the Chief Commissioner purporting to be a copy of a notice of assessment, is:

…

(b) conclusive evidence that … all particulars of the assessment are correct, except in objection or review proceedings when it is prima facie evidence only.

2. Having regard to the wording of the 2004 and 2005 assessments I determined that certain conclusive presumptions applied.

3. However, Mr Wu’s analysis in the 2018 proceedings did not refer to a mandatory requirement for the claimed concession to take effect. I found that Mr Wu had not satisfied that requirement. Accordingly, the concessional exemption did not apply irrespective of the conclusiveness of the 2004 and 2005 assessments and whether or not the Land was deemed to be Mr Wu’s principal place of residence for 2004 and 2005.

4. Section 100(3) of the TA Act relevantly states “The applicant has the onus of proving the applicant's case in an application for review.” Mr Wu provided no authority to support his submission that the Chief Commissioner was required to outline for Mr Wu all of the elements Mr Wu needed in order to satisfy his onus in the 2018 proceedings. I prefer to rely on the clear wording of the legislation and I reject Mr Wu’s fourth unsupported submission.

24. Having regard to the above findings, I am not satisfied that Mr Wu had reasonable grounds for believing he had a strong case in the 2018 proceedings. I reject his submission.

Section 60(3)(d) the nature and complexity of the proceedings,

25. Mr Wu made multiple submissions on this issue. I deal with them below.

26. Mr Wu submitted that the subject matter of the proceedings was land tax, not a commercial dispute. Accordingly more “extraordinary circumstances” are required to justify a costs order.

25. In Peng v Chief Commissioner of State Revenue [2009] NSWADT 295 (Peng) the Chief Commissioner applied for a costs order against property owners who had claimed a land tax exemption and withdrew their application immediately prior to the scheduled hearing. Block JM considered various authorities in relation to the Chief Commissioner’s application and said at [118]:

(4)    … an explanation of the policy rationale as to "no order as to costs" in first instance administrative review matters by McClellan CJ at CL in Residents against Improper Development Incorporated and Another v Chase Property Investments Pty Ltd (2006) 149 LGERA 360 at [231] as follows:

"The reason for such an approach is well known. It is accepted, in my view correctly, that where an individual or corporation believes that an administrative decision which affects it is unreasonable, it should not be discouraged from seeking to have the decision reviewed by a concern that it may have to pay the costs of the decision-maker (invariably a public body) if the application fails. This approach acknowledges the fact that the nature of the proceedings is a review of an administrative decision where, unless review is provided, an individual will have no means of challenging the decision, however unreasonable, except … It is derived from considerations of fundamental fairness and seeks to strike an appropriate balance between the resources of the decision-maker and those of the citizen affected by its decision." … a taxpayer with a barely or fairly arguable case should not be at risk as to costs. The Chief Commissioner contends (and the Tribunal agrees) that so much may be accepted, but the Tribunal also agrees that there is a significant difference between a weak case and one which proceeds on the basis of falsehood

28. An important principle enunciated by McClellan CJ was the consideration of fundamental fairness and seeking to strike an appropriate balance. My findings in the 2018 decision clearly indicate that Mr Wu’s main submissions in the 2018 proceedings were not supported by the evidence presented and, with the exception of Mr Pickworth, whose statement was largely irrelevant, Mr Wu and all of his other witnesses lacked credibility and their evidence was substantially rejected. Mr Wu’s case was not fairly arguable and I found accordingly.

29. Mr Wu submitted that in revenue matters, not involving a commercial dispute, the justification for awarding costs “should require more extraordinary circumstances”. This does not accord with the wording of s 60 which requires “special circumstances” warranting an order for costs. As the Appeal Panel of the Tribunal said in Gaynor v Burns [2015] NSWCATAP 150 at [19]:

19 In Cripps v G & M Dawson [2006] NSWCA 81 Santow JA considered the words “special circumstances” as they appeared in s 88 (1) of the Administrative Decisions Tribunal Act 1997 (NSW) (repealed). That provision enabled the Tribunal to award costs in relating to proceedings before it only if it was satisfied there were “special circumstances warranting an award of costs” …Santow JA [explained] at [60]:

… it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional ...

30. Mr Wu provided no authority to support his submission that, notwithstanding the legislative wording, something more than special circumstances is required for a costs order in a non-commercial dispute. There is no basis for the submission and I reject it.

31. Mr Wu submitted that a close examination of facts was required in relation to various events over many years and several witnesses were called by each party. However, I find that the closeness and intensity of the examination of facts and evidence was only required because of the nature and content of the evidence submitted by and on behalf of Mr Wu. I rejected much of that evidence. I found that the evidence of both Mr Wu and his witnesses was substantially lacking in credibility, reliability and relevance. The amount of evidence from Mr Wu and his witnesses’ which was either reversed or was rejected was substantially out of the ordinary.

32. Mr Wu submitted that the proceedings involved questions of law and statutory construction. This is correct and by itself is not out of the ordinary. Similarly, it is not out of the ordinary for submissions by a party as to interpretation of the law to be rejected by the Tribunal. However the extent to which Mr Wu’s submissions, as to the relevance of the asserted facts to the law, was rejected by the Tribunal was out of the ordinary.

33. Mr Wu submitted that the original estimate of 3 days for the hearing was made by the Chief Commissioner and was not something for which he (Mr Wu) was responsible. Mr Wu submitted, and I agree, that the Chief Commissioner’s experience made him better placed to make an estimate of the days needed for the hearing. Given the number of witnesses called by both sides, that estimate should be regarded as having been too short. An extension of the hearing was inevitable.

34. I agree that in retrospect the estimate was too short. However, I find that the cross-examination time by the Chief Commissioner of Mr Wu’s witnesses and, in particular, of Mr Wu himself was out of the ordinary because of the conduct of Mr Wu and some of his witnesses in giving confusing, vague, internally contradictory and substantially unsatisfactory evidence. I also note that by Mr Wu’s own reckoning he took nearly 6 hours to give his evidence in chief and to re-examine himself. This was vastly excessive and I find that it could not have been reasonably anticipated by the Chief Commissioner.

35. I do not find that the Chief Commissioner’s initial estimate of the number of hearing days required, adversely effected the nature or complexity of the proceedings.

36. At [9(a)] in ASCOS Mr Wu submitted “The facts were complicated to untangle, which necessarily protracted the case beyond the 3 days originally allocated.” Mr Wu’s submission is correct. However, many of the factual complications arose because Mr Wu led evidence which was either irrelevant or rejected for other reasons. It is not out of the ordinary for part of a party’s evidence and submissions to be rejected. However, the extent of the lack of cooperation by Mr Wu (and his witnesses as a group) in the conduct of the proceedings was out of the ordinary and I find that lack of cooperation materially and unnecessarily complicated the proceedings.

37. Mr Wu submitted that the Chief Commissioner’s conduct in filing new affidavits during the course of the hearing added to the complexity of the proceedings. I find that to a substantial extent the affidavits to which Mr Wu referred were filed in response to the manner in which Mr Wu represented himself. I do not regard the Chief Commissioner’s conduct in this respect as being out of the ordinary or adding to the complexity of the proceedings. I reject Mr Wu’s submission.

38. The transcript shows that on the eighth day of the hearing, in the course of Mr Wu’s self-re-examination, he initially answered ‘yes’ to my question concerning the existence of a fibro dwelling on the Land in 2003 on the date of his purchase. He then said that the dwelling was there before he purchased the Land. He then stated that there was no fibro dwelling on the Land at the date of his purchase, it was there 30 or 20 years earlier. Mr Wu said he relied on a survey plan dated 1962.

39. Mr Wu submitted that a “small shack” was on the Land and there was evidence from Ms Armstrong that her mother and father lived in the shack while they built their house (on their land which adjoined the Land). However, Ms Armstrong’s evidence was also that the small shack was demolished before Mr Wu bought the Land.

40. Mr Wu submitted that the fact that there had been a small shack on the Land at the time of a survey in 1962 meant that people living there had water and a septic tank. Mr Wu eventually conceded that there was no evidence before the Tribunal of any water connection to the building nor any septic tank. Mr Wu relied on his (unsupported) opinion that people living in the shack should have had water and a tank.

41. Substantial hearing time and a certain amount of the Chief Commissioner’s advisers’ preparation time was wasted researching documents as to the existence of the old fibro dwelling prior to Mr Wu’s purchase of the Land and Mr Wu residing in that dwelling immediately prior to that purchase. Mr Wu eventually conceded that his multiple submissions and evidence in his affidavit and orally during the hearing on this point were incorrect (Mr Wu’s old shack concession). I find that Mr Wu’s written and oral submissions and evidence to the contrary were incorrect and known by Mr Wu to be incorrect at all relevant times, including throughout his cross-examination.

42. Notwithstanding Mr Wu’s old shack concession, in his written submissions after the hearing he submitted at [11] to [13]:

11… There used to be a fibro house (Old Fibro House) on the land before I bought the Belrose Property. The Old Fibro House was located near Linden Avenue as shown on the survey plan attached to the purchase contract. I once lived in the Old Fibro House before purchasing the Belrose Property. A water tap and a septic tank were connected to the Old Fibro House. The Old Fibro House was demolished before May 2003 without the removal of the water tap and septic tank …

12 … The waste water was connected to the septic tank built for the Old Fibro House.

13   Water was connected to the water pipe within the Belrose Property. I received the invoice from Sydney Water for unmetered water use in October 2016. Sewer was connected to the septic tank built for the Old Fibro House.

43. In the 2018 decision I held:

154   Having regard to the lack of evidence in support of the above submissions and Mr Wu’s concessions during the hearing I reject each of these submissions.

155   Mr Wu’s repetition, in ACS and ACSR after the hearing, of submissions based on facts which he conceded during the hearing were not true and which were not supported by evidence produced during the hearing, does not assist him, does him no credit and does not enhance his credibility as a witness.

44. The submissions and evidence led by Mr Wu in relation to the old house, water connection and septic tank were not the only occasions on which Mr Wu made submissions and gave evidence to the Tribunal concerning events the details of which he later conceded were not true.

45. I find that Mr Wu’s conduct unnecessarily increased the complexity of the proceedings and was out of the ordinary.

Section 60(3)(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

The Chief Commissioner’s submissions on s 60(3)(b)

46. The Chief Commissioner submitted that Mr Wu’s conduct unreasonably prolonged the completion of the proceedings. That conduct included the following.

Use of interpreters

47. Mr Wu required interpreters, which attended the usual delays, when he appeared to understand the English language.

48. Mr Wu agreed at the start of the hearing that he understood some English although he said his understanding was “not very good”.

49. The use of an interpreter may well prolong hearing time. However, such use is not out of the ordinary, nor is it out of the ordinary for a party whose first language is not English but who has lived in Australia for some years to only draw on the interpreter’s assistance when they are of the opinion that they need such assistance. I find that partial understanding of the English language should not preclude a party for whom English is not his native tongue from requiring the assistance of interpreters during Tribunal hearings.

50. Importantly Mr Wu said he tried to save hearing time by only requiring help occasionally from the interpreter. To the extent that the last sentence is accurate, I agree that the use of an interpreter is not out of the ordinary. However, I note that on occasions Mr Wu argued with interpreters as to the accuracy of their interpretation and on one occasion an interpreter complained that Mr Wu was trying to coach him. To the extent that Mr Wu disputed the accuracy of interpretation by official interpreters it seems to me that Mr Wu had, or thought he had, a better understanding of the English language than he acknowledged to the Tribunal. In any event such disputes with interpreters were out of the ordinary and unnecessarily prolonged the proceedings.

Mr Wu represented himself

51. The Chief Commissioner submitted that Mr Wu insisted on representing himself, despite having legal practitioners present who may otherwise have prosecuted his case with greater efficiency.

52. Mr Wu conceded that he sought and obtained advice from counsel from mid-June 2017. Mr Wu also said a solicitor, employed by a company of which he was the sole director, attended the hearing with him, in case he could not understand certain legal terms.

53. Although an applicant is entitled to represent himself, I agree with the Chief Commissioner that it is out of the ordinary for an applicant to represent himself in lengthy proceedings while having the benefit of legal advice from counsel outside the hearing room and having a solicitor present throughout the whole of the hearing, and complaining from time to time that his English is poor while arguing with official interpreters over the accuracy of their translation.

54. Mr Wu said in his affidavit that his attendant solicitor had “no experience in Tribunal proceedings”. The solicitor did not confirm that opinion and I reject it as being unsubstantiated.

55. Having regard to the manner in which Mr Wu conducted the hearing, I find on the balance of probability that a properly instructed solicitor would have saved substantial hearing time if that solicitor represented Mr Wu rather than him representing himself, while the solicitor sat throughout the hearing in the public seating area of the hearing room.

Mr Wu disrupted cross-examinations

56. The Chief Commissioner submitted that Mr Wu disrupted the proceedings during his cross-examination and that of his witnesses.

57. I cautioned Mr Wu on numerous occasions during his cross-examination when it appeared to me that he was trying to avoid answering relevant questions asked of him. I also cautioned him during cross-examination of his witnesses when he repeatedly interrupted the cross-examinations, often when critical questions had been asked; made irrelevant comments and objections; and attempted to give answers on behalf of his witnesses.

58. Mr Wu’s interruptions, contrary to my repeated directions, unnecessarily prolonged the cross-examinations. The repeated interruptions were so numerous that they constituted out of the ordinary conduct.

Mr Wu rejected the Chief Commissioner’s settlement offer

59. The Chief Commissioner submitted that Mr Wu failed to accept, on 18 August 2017, the Chief Commissioner’s written settlement offer which would have concluded the matter without further delay. In response, Mr Wu submitted that the offer was prior to the cross-examination of almost all his witnesses, it offered no concession of any years of tax relief and threatened a costs order should he continue the matter. Mr Wu also submitted that it is not appropriate in relation to a costs application for the Tribunal to assess the merits of such a settlement offer made in the middle of the proceedings. The Chief Commissioner’s response was to the effect that the Tribunal may take into account Mr Wu’s failure to accept the settlement offer.

60. Section 60(3)(g) provides that, in determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to any matter which the Tribunal considers relevant. I consider the offer such a matter.

61. In retrospect there is no doubt that Mr Wu’s failure to accept the Chief Commissioner’s offer prolonged the proceedings. However, Mr Wu, as with any other applicant, was entitled to put his case to the Tribunal, have his evidence considered and his arguments heard. I find that Mr Wu’s rejection of the Chief Commissioner’s offer was not, by itself, so out of the ordinary as to constitute special circumstances.

Work on transcripts

62. The Chief Commissioner submitted that in obtaining, transcribing, reviewing and summarising extensive transcripts for the Respondent's closing submissions in the 2018 proceedings he incurred additional and unnecessary costs.

63. Mr Wu submitted, and I agree, that obtaining, reviewing and summarising transcripts is not uncommon practise during any lengthy proceedings.

64. However, I find that the unnecessary prolongation of the hearing because of Mr Wu’s conduct was a direct cause of the transcripts being unnecessarily lengthy and causing additional work on behalf of and costs incurred by the Chief Commissioner. To that extent I find that a substantial part of the work carried out by the Chief Commissioner in relation to the transcripts was out of the ordinary.

Mr Wu’s submissions on s 60(3)(b)

65. Mr Wu submitted he always tried to save hearing time and to comply with s 36(3) and gave the following examples:

Withdrew application in relation to the 2012 and 2014 tax years

66. In the morning of the first hearing day Mr Wu conceded the assessments for tax years 2013 and 2014.

67. I find that this concession saved hearing time, although as the matters were not tested I cannot make any finding as to the reasonableness of the original objection and application to the Tribunal nor as to the extent or reasonableness of any preparation by the Chief Commissioner to deal with the application for those years. Nor did Mr Wu provide any explanation as to why his application to the Tribunal was not amended prior to the start of proceedings by the withdrawal of the application in relation to those years.

Mr Juniper’s affidavit

68. Mr Wu said he did not object to Mr Juniper’s affidavit (when it was tendered).

69. I agree that the non-objection saved time. What Mr Wu did not mention was that he was asked on day 3 of the hearing whether he had any objections to any part of Mr Juniper’s affidavit and said there were none. However, notwithstanding this concession, in his written closing submissions and his closing submissions in reply in the 2018 proceedings Mr Wu submitted on 3 separate occasions that Mr Juniper’s affidavit was inadmissible. I rejected Mr Wu’s submissions for the reasons set out in the 2018 decision. The consideration of those submissions by both the Chief Commissioner and myself in order to deal with them unnecessarily prolonged the proceedings.

Mr Wu proceeded without an interpreter in attendance

70. Mr Wu agreed to the hearing commencing at the scheduled time on day 6 although the interpreter had not yet arrived.

71. I find that Mr Wu’s conduct on this occasion was reasonable and saved a delay in the proceedings.

Mr Wu did not object to the Chief Commissioner tendering affidavits during the hearing

72. Mr Wu did not object to 2 new affidavits being filed by the Chief Commissioner on the sixth hearing day.

73. I find that Mr Wu’s conduct in raising no objections was reasonable.

Other conduct by Mr Wu relevant to s 60(3)(b)

74. I observe that other examples of Mr Wu’s relevant conduct during the hearing include:

1. On the eighth hearing day, during Mr Wu’s self-re-examination, he referred to various documents in evidence. On no less than 4 occasions he referred me to the same document for the same reasons despite me telling him repeatedly that I had already read and considered the specific document.

2. On several occasions Mr Wu denied the accuracy of documents which he had signed and which he was aware would be relied on by third parties including government agencies. Mr Wu’s reasons for his denials were frequently implausible and wasted hearing time.

3. Mr Wu took more than a complete hearing day, nearly 6 hours based on his own reckoning, to examine and re-examine himself in relation to his own evidence. On multiple occasions he repeated himself unnecessarily.

1. In the 2018 hearings Mr Wu sought to rely on his 67 paragraph affidavit made 17 February 2017. The Chief Commissioner objected to much of the affidavit’s contents. Mr Wu disputed most of the Chief Commissioner’s objections. My consideration, during the hearing, of the Chief Commissioner’s and Mr Wu’s initial respective oral objections and responses took up a considerable amount of time. I directed that a substantial number of the objections be dealt with by written submission. In the event, I allowed Mr Wu to vary one of his paragraphs and I rejected some two thirds of his affidavit. Much of the rejected contents contained speculation, was not relevant, or contained Mr Wu’s expression of his unsupported opinion as to many matters including aspects of the law. Having regard to the amount and proportion of the affidavit which I rejected, I find the hearing and other time spent because Mr Wu needlessly contested the Chief Commissioner’s valid objections to be out of the ordinary and to constitute special circumstances.

2. During Mr Wu’s re-examination of his witnesses he asked leading questions, questions concerning matters which did not relate to the cross-examination and objected to affidavits which had previously been admitted without objection. This conduct unnecessarily prolonged the proceedings.

75. Mr Wu provided a detailed schedule of the time he said each party spent examining each witness. The Chief Commissioner declined to attempt to rebut the accuracy of Mr Wu’s schedule and I will, for the purpose of these reasons, assume it is correct.

76. Mr Wu submitted that the Chief Commissioner’s counsel spent an excessively long time cross-examining his witnesses and himself. I agree that the Chief Commissioner’s counsel took longer than I would have expected in cross-examination, particularly of Mr Wu. I observe that it is not out of the ordinary for some evidence of a party’s witnesses to be rejected. However, I find that the cause of the excess cross-examination time was not attributable to the Chief Commissioner’s counsel’s conduct. Rather it occurred because of the lack of co-operation by Mr Wu and his witnesses. An inordinate amount of the evidence from Mr Wu in particular was either evasive, unreliable or irrelevant and this conduct extended the cross-examination time.

77. I accept that on some occasions Mr Wu’s conduct assisted in the orderly progress of the proceedings. However those occasions do not offset my finding that on numerous occasions other conduct by Mr Wu unreasonably prolonged the time taken to complete the proceedings. The latter conduct was out of the ordinary and constituted special circumstances.

Section 60(3)(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

78. The Chief Commissioner submitted that this ground was satisfied by referring to his submissions at [10] in RSCOS, all of which have been dealt with elsewhere in these reasons.

79. Mr Wu submitted that the Chief Commissioner’s submissions were refuted for the reasons set out at [7] and [8] in ASCOS.

80. With two exceptions, all of Mr Wu’s submissions at [7] and [8, have been dealt with above and I have rejected them. They do not refute the Chief Commissioner’s submissions. There is no reason to repeat the submissions or my reasons.

81. The two exceptions are firstly a delay to part of the hearing because Mr Wu suffered an injury which required medical attention; and secondly the interposition of some witnesses called by the Chief Commissioner allegedly contributing to the hearing taking longer.

82. Quite properly, the Chief Commissioner did not submit that the delay caused by Wu’s medical condition was a contributing factor to his costs application. Conversely, I find that the interposition of some witnesses did not prolong the hearing. Rather, it permitted the proceedings to continue with less delay than might otherwise have been case. I reject Mr Wu’s submissions as being both irrelevant to s 60(3)(e) and factually wrong.

Conclusion

83. In Peng, Block JM referred at [118(5)] to Colgate Palmolive v Cusson (1993) 46 FCR 225 at 232-234 in which Sheppard J described the circumstances necessary for indemnity costs (which was not the subject of an application in these proceedings) in the following terms:

"… it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. … evidence of particular misconduct that causes loss of time to the Court and to other parties; the fact that the proceedings were commenced or continued … in wilful disregard of known facts or … the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions;

84. I have dealt above with the parties’ submissions and other aspects of Mr Wu’s conduct including Mr Wu pressing submissions which he knew were baseless. I find that the proceedings were so misconceived and lacking in substance as to constitute special circumstances.

Section 60(3)(f) whether a party has refused or failed to comply with the duty imposed by s 36(3),

85. Section 36 provides that the guiding principle concerning proceedings in the Tribunal “is to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. The Tribunal is required to seek to give effect to the guiding principle when it exercises any power, s36(2). Section 36(3) imposes duties on parties to Tribunal proceedings as well as on all persons who represent parties. The duties are:

… 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.

86. The Chief Commissioner submitted “This ground was satisfied on the bases set out in [9]-[10] above, particularly as the Applicant's conduct resulted in the proceedings being neither "quick" nor "cheap".

87. Mr Wu submitted that he relied on [7], [8] and [9] in ASCOS, particularly on [9(e)]. He claimed he tried his best to satisfy the duty imposed by s 36(3).

88. Having regard to my above findings as to Mr Wu’s conduct throughout the proceedings I reject Mr Wu’s submission and find that he did not comply with his duty under s 36(3). I find that this failure of compliance constitutes special circumstances.

Section 60(3)(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

89. The Chief Commissioner submitted that he was unnecessarily disadvantaged and incurred otherwise unnecessary costs because of Mr Wu’s conduct of his case. Mr Wu submitted that his conduct was not out of the ordinary, it was justified, and he relied on [8] and [9] in ASCOS.

90. At [8(g)] Mr Wu submitted “I did not, and never intended to, disrupt the proceedings.”

91. Having regard to my above findings, there is no doubt that Mr Wu unnecessarily disrupted the proceedings. On many such occasions the disruption involved Mr Wu’s conduct being contrary to my express directions. I find that Mr Wu’s conduct constituted intentional disruption so as to seek to gain a tactical advantage.

92. I have already dealt with and substantially rejected Mr Wu’s submissions in ASCOS. I expressly reject Mr Wu’s submission in the preamble to ASCOS [9] where he said "My conduct during the proceedings was justifiable, not exceptional, not seriously unfair …” That statement does not accurately represent the facts.

93. Accordingly I find that Mr Wu conducted the proceedings in a way that unnecessarily disadvantaged the Chief Commissioner and such conduct constituted special circumstances.

Section 60(3)(g) any other matter that the Tribunal considers relevant.

94. The Chief Commissioner submitted that relevant grounds in support of his application were Mr Wu’s failure to put into evidence contemporaneous and/or corroborative documents proving his case and Mr Wu denying documents signed and/or procured by him or his company, Vigor Master, which contradicted his case.

95. I find that an alleged failure by Mr Wu to put supporting documents into evidence does not by itself constitute conduct out of the ordinary nor special circumstances.

96. Mr Wu submitted that relevant matters were addressed in ASCOS [7] to [12] and if the Tribunal found there were special circumstances warranting an award of costs then the Chief Commissioner’s decisions and conduct materially contributed to any delay in the proceedings and the further costs that were incurred. I have substantially dealt above with those submissions and rejected them.

97. After the hearing, Mr Wu, in written submissions which I have also dealt with above, sought to broaden the basis of his claim beyond that dealt with during the hearing. I find that this conduct is out of the ordinary and constitutes special circumstances.

98. Mr Wu submitted at ASCOS [12] “The making of the costs application is a decision made solely by the Respondent. I should not be responsible for the costs in preparing this costs application.”

99. To the extent that special circumstances occasioned by Mr Wu’s conduct during the course of the proceedings warranted a costs order, I find that the Chief Commissioner’s costs of preparing the costs application should be borne by Mr Wu.

100. Mr Wu also submitted that if any costs are awarded they should be significantly reduced from the amounts claimed by the Chief Commissioner to reflect the latter’s responsibility for delays and to recognise the public law nature of the subject matter in dispute.

101. The Chief Commissioner submitted that the amount of costs he is seeking is already substantially reduced, being less than 38% of his costs to the date of the costs application. The costs orders sought by the Chief Commissioner, are, in the alternate:

a. … as a lump sum on an ordinary basis:

i.   for 50% of the Respondent's costs from 3 June 2017 to 17 August 2017;

ii.   from 18 August 2017 to date, including the costs of this costs application; and

iii.   the Respondent has leave to put on expert evidence as to the appropriate quantum of costs as a lump sum; or

b.    … from 18 August 2017 to date, including for this costs application, as agreed or assessed on an ordinary basis; or

c.   … on the same basis as in 1 a(i)-(ii), but as agreed or assessed on an ordinary basis;

102. Having regard to my above findings, I find that there are special circumstances warranting an award of costs in accordance with the Chief Commissioner’s submission ‘c’ above.

Confidentiality application

Initial chronology

103. On 30 January 2019 the Chief Commissioner informed the Tribunal that the first Kerr affidavit and the second Kerr affidavit would be filed. The Chief Commissioner sought an interim confidentiality order prohibiting access to and publication of matters contained in the second Kerr affidavit other than to Mr Wu, without notice to the Chief Commissioner and leave of the Tribunal. The Chief Commissioner informed the Tribunal that:

1. Mr Wu consented to the proposed interim order, and

2. he would seek permanent confidentiality orders as part of the Tribunal’s final orders.

104. Also on 30 January 2019 the Chief Commissioner filed the first Kerr affidavit and RSCOS. The latter included an application for orders in relation to costs, that a hearing be dispensed with, and the following substantive confidentiality orders be made as set out at [12] in the second Kerr affidavit:

(a)   other than as provided for in (c), an order prohibiting access by third parties to this affidavit, the parties' submissions on costs and that part of the Tribunal's file concerning this costs application, without leave of the Tribunal;

(b)   an order restricting the publication of any amounts of costs and disbursements referred to in this costs application, without leave of the Tribunal;

(c) notwithstanding order (a), any costs consultants engaged by either party has leave to have access to any of the documents relied on in this application.

105. On 11 February 2019 I made certain procedural directions.

106. On 13 February 2019 the Chief Commissioner proposed a revised interim confidentiality order and requested an extension of time to file and serve submissions on confidentiality.

107. On 14 February 2019 I made further procedural directions and the following order:

3 Pursuant to section 64(1)(c) [of the Civil and Administrative Tribunal Act 2013] and until further order of the Tribunal, I order that access to and publication of:

a.   details of the fee rates charged by the Respondent’s solicitors and counsel engaged by the Respondent in respect of the subject proceedings; and

b.   paragraphs 1 to 18 of the affidavit of Kathleen Margaret Kerr affirmed on 30 January 2019 and filed on 31 January 2019:

be restricted to the Applicant, his legal representatives and any costs experts he may engage in respect of either or both of the Respondent’s costs application and the Respondent’s confidentiality application.

Confidentiality order sought

108. The order sought by the Chief Commissioner to have effect once the decision was delivered was:

a.   A permanent order restricting access or circulation to the Applicant, his legal representatives and costs experts, the latter for the purpose of obtaining legal advice;

b.   An order that the commercially sensitive information in KK2 and Ex. KMK-2, being the rates of the Crown Solicitor's Office (CSO) and counsel, either:

i. not be stated in the decision; or ii. or those parts of the decision be subject to a non-publication order;

109. The Chief Commissioner also sought an order that “Persons can approach the Tribunal to vary the orders with notice to the Respondent.”

The Chief Commissioner’s confidentiality submissions

110. The 21 February letter submitted that certain identified pages of Exhibit KMK-2 to the second Kerr affidavit contained commercially sensitive information. That information is “information about pricing and billable items which would damage the office of the Crown Solicitor [if] they were obtained by market competitors”. The CSO’s documents are described as “internal documents, which are not made available to clients in that form. Mr Rider’s invoices contain information about [his] brief fee which may differ as I understand it, from his usual rate.”

111. The relevant “commercially sensitive information” is described more succinctly in RSCON as “the rates of the Crown Solicitor's Office (CSO) and counsel”.

112. The Chief Commissioner identified several judicial authorities on which he relied. He submitted at [4] “the "implied undertaking" as enunciated in Hearne v Street (2008) 235 CLR 125 is not sufficient to protect the commercially sensitive information of the CSO and counsel” and at [7] he relied on “the principles set out in Tri-Star Petroleum Company & Ors v Australia Pacific LNG Pty Ltd & Ors [2017] QSC 136 at [55] to [60].”

Mr Wu’s confidentiality submissions

113. Mr Wu, commendably briefly, submitted in ASRCON:

3   I am uneasy regarding costs that are incurred by Chief Commissioner being kept confidential as I believe expenses that are borne by the taxpayer should be a matter of public record.

114. Mr Wu also stated:

2.   Prior to 14th February I provided several third parties with the full bundle of documents including those forming the basis of the confidentiality order the Applicant is seeking. This occurred shortly following my initial receipt of the documents so that I could have some contents translated and to receive advice. The parties I provided the documents are not legal practitioners and are not aware any of the materials provided are confidential.

115. Mr Wu did not refer to any authorities on which he relied nor to any authorities relied on by the Chief Commissioner

Consideration of the confidentiality application

The Tribunal’s power in relation to a confidentiality application

116. Recently, in Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 (Bungree), Ransome SM considered the issue of suppression of information relevantly before the Tribunal. In that matter a party [the Registrar] had sought orders that parts of the filed material, including parts identifying certain persons, be either withheld or redacted and not provided to the other party (Bungree) or be made publicly available. Bungree opposed the making of those orders. Relevantly, Ransome SM said:

9 The starting point for the consideration of the issues raised in this application … is s 49 of the CAT Act. That section provides that hearings of the Tribunal are to be conducted in public unless the Tribunal orders otherwise. The presumption therefore is that proceedings of the Tribunal will be public. Sub-section 49(2), however, qualifies that presumption by providing that a hearing may be conducted wholly or partly in private if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

10 Division 6 of Part 4 of the CAT Act is titled “Information disclosure” and contains a number of provisions which prevent or limit the disclosure by the Tribunal of certain categories of information. Central to this application is s 64 which provides:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

…

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

…

(2) …

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

…

117. In Rapisarda v Commissioner of Police, NSW Police Force; Housego v Commissioner of Police, NSW Police Force; Sheehy v Commissioner of Police, NSW Police Force; McDonald v Commissioner of Police, NSW Police Force [2018] NSWCATAD 34 the Appeal Panel of the Tribunal said:

14 Mr Fernon SC, who appeared for the Commissioner, referred to the decision of the Appeal Panel of the Administrative Decisions Tribunal in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 which he submitted, correctly in our view, “remains the leading authority on whether or not orders under s 64 should be made”.

15 NSW v Dezfouli involved an application under s 75 of the Administrative Decisions Tribunal Act 1997 (NSW) however that provision is largely replicated in ss 49 and 64 of the NCAT Act.

16 The decision has been referred to with approval in a number of decisions of this Tribunal, including the Appeal Panel: CYL v YZA [2007] NSWCATAP 105 at [100]-[102]; CVV v United Resource Management Pty Ltd [2016] NSWCATAD 271; Applicants v Commissioner of Police [2015] NSWCATAD 22 at [40]; CCB v Department of Education and Communities [2015] NSWCATAD 145; Diri v Board of Studies Teaching and Education Standards [2014] NSWCATAD 222.

17   The Appeal Panel of the Administrative Decisions Tribunal held in NSW v Dezfouli:

“50 Within the opening words of section 75(2) of the ADT Act … three elements of prime importance are the word ‘desirable’, the phrase ‘for any other reason’ and the word ‘may’. These indicate that the purpose (or purposes) to be served by a suppression order may be ‘any … reason’ (or reasons) whatever, that the power arises when the Tribunal is satisfied that the order is ‘desirable’ and that the actual making of the order is not mandatory but within the Tribunal’s discretion.

…

58 … it is beyond doubt that section 75(1) creates a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made under section 75(2).

…

61 … it is unthinkable that the word ‘desirable’ in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is ‘desirable’ under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting.

…

81 It is difficult if not impossible to set out in short form all the matters that, according to the case law …, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

82 ... In the light of our examination of the authorities, we would not dispute that, for an order to be made, the circumstances should be ‘special’ or ‘out of the ordinary’ (though a requirement that they be ‘exceptional’ may involve setting the bar too high). But it is important to recognise that this is at most a necessary, not a sufficient, condition.”

18 It is apparent from these passages that authorities concerning the application of the common law or other statutory regimes concerning the making of non-publication or non-disclosure orders do not directly govern the questions which arise pursuant to s 64 of the NCAT Act. Nevertheless, those authorities will be of assistance.

The Chief Commissioner’s authorities

118. The Chief Commissioner submitted at [5]:

The implied undertaking is a substantive legal obligation owed to the party who produces or files documents in legal proceedings that they will only be used for the purposes for which they were disclosed and not a collateral or ulterior purpose ... The obligation extends to information derived from documents (Crest Homes Plc v Marks [1987] AC 829 at 854) and extends to affidavits. The implied undertaking no longer applies when documents, including affidavits, are put into evidence. Here, the usual undertaking is not sufficient …

119. The Chief Commissioner submits that until there is a hearing and the documents are read or otherwise admitted into evidence, the protection of the undertaking applies. However as the matter is likely to be [and was in fact] determined on the papers, the subject affidavit would be considered to be read and the parties released from the implied undertaking when the decision is published.

120. To the extent that it is relevant, I accept the Chief Commissioner’s above submissions in respect of Hearne v Street and Crest Homes Plc.

121. At [7] the Chief Commissioner referred to Tri-Star. I note that at [55] to [57] in Tri-Star Bond J of the Queensland Supreme Court held:

[55]   In Hearne v Street the High Court recognized that the implied obligation was the mechanism by which the law ensured that those who, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, were compelled to disclose documents or information, did not suffer a harsher or more oppressive invasion of their privacy and confidentiality than was necessary for the purpose of securing that justice was done in the proceeding.

[56] Tri-Star correctly points out that in most cases, the fact that the documents obtained in that way may not be used except for the purposes of the litigation concerned will be sufficient protection for the party producing them: see Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 per Hayne JA at 38 (with whom Winneke P and Phillips JA agreed); Alcoa of Australia Ltd v Apache Energy Ltd [2014] WASCA 148 per McLure P at [57], point 4 (with whom Buss and Newnes JJA agreed).

[57]   Cases in which something more than the implied obligation is required are to be regarded as the exception, not the rule.

122. I accept the Chief Commissioner’s submission that the implied undertaking may not fully protect information from misuse. However, as the Appeal Panel said in NSW v Dezfouli:

[57]… the power arises when the Tribunal is satisfied that the order is ‘desirable’ and that the actual making of the order is not mandatory but within the Tribunal’s discretion”.

[58] …[there is] a presumption in favour of hearings being both open to the public and freely reportable and that circumstances justifying departure from this presumption must be present if an order is to be made

…

123. The Chief Commissioner submitted that the confidential information was “the rates of the Crown Solicitor's Office (CSO) and counsel”.

Counsel’s fee rates

124. I deal firstly with the claimed confidentiality of counsel’s fees. The Chief Commissioner claimed in the 21 February letter that “Mr Rider's invoices contain information about this brief fee which may differ … from his usual rate” and the submission claimed “It would place counsel at commercial disadvantage when being approached to take briefs by other law firms.”

125. I accept the submission that public exposure of the fees charged by Mr Rider may well place him at a commercial disadvantage in the circumstances outlined above. I also find that the amount of the brief fee or hourly or other fee rate charged by counsel is not relevant to my findings or the costs orders I make below. I find that it is desirable to maintain confidentiality in respect of the amount and charge rate of the relevant fees and the public interest is not harmed in so doing.

CSO’s fee rates

126. The Chief Commissioner submitted at [7]:

The concern is that market competitors or potential market competitors, for example, also tendering for government work, would be able to obtain rates and billing items, which would disadvantage the CSO in the marketplace in the categories that it competes with private practice and cause commercial disadvantage

127. The Chief Commissioner sought an order that confidentiality be maintained in respect of “the commercially sensitive information” in the relevant pages of KMK-2 “being the rates of the CSO …”.

128. However, the submissions also referred to undefined “billing items” which were apparently different to and in addition to CSO’s fee rates. The non-disclosure of fees, rates and billing items was sought in relation to the whole of the second Kerr affidavit and some 62 pages of KMK-2, being pages numbered 1-46, 48-49, 52 and 54-66.

129. Unfortunately the CSO did not provide any fee agreements or redacted pages of any documents so as to assist the Tribunal in specifically identifying the information in respect of which the Chief Commissioner sought confidentiality.

130. I observe that paragraph [17] of the second Kerr affidavit, states:

The Respondent seeks permanent confidentiality orders in respect of this affidavit, regardless of whether the costs application is otherwise successful.

131. I observe that in KMK-2:

1. Page 1 relates to totals of fees, disbursements, work in progress, and bills rendered.

2. Pages 2 to 19 and 21 to 39 contain timesheets with billed amounts for work performed by named persons.

3. Pages 20 and 40 contain no amounts rates or fees.

4. Pages 41, 43 to 45 and 58 to 66, contain details of journal entries and invoices in respect of items such as Cabcharge fees, petty cash recoupment, transcription services, filing fees, SAI fees, sound recording fees and counsel’s fees.

5. Page 42 contains an amount for total disbursements.

6. Pages 46, 48, 49, 52 and 54 to 57 contain tax invoices from counsel including fees charged for work involving various time periods on certain dates.

132. Notwithstanding my consideration of the above pages of KMK-2, I cannot identify any items which might be the “billing items” of concern to the Chief Commissioner.

133. The Chief Commissioner expressed concern that market competitors or potential market competitors also tendering for government work would be able to obtain rates information which would disadvantage the CSO in the marketplace in the categories in which it competes with private practice (competitive work) and cause commercial disadvantage, presumably to the CSO rather than to the Chief Commissioner.

134. Importantly, the second Kerr affidavit states at [13] that the competition between the CSO and private law firms does not extend to “state revenue litigation”. Accordingly although the Chief Commissioner’s submissions are that publication of rates and billing items would disadvantage the CSO in relation to competitive work, the Chief Commissioner’s evidence is that there is no relevant market in relation to work such as the 2018 proceedings.

135. Nor is there any evidence or submission to the effect that the manner in which the CSO calculates its fees for state revenue litigation is comparable to the manner in which it calculates its fees for competitive work.

136. I also have regard to Mr Wu’s submission that expenses that are borne by the taxpayer should be a matter of public record.

137. In the circumstances I cannot conclude that there is a public interest requiring that access not be permitted to fee rates charged by the CSO to the Chief Commissioner.

138. The orders I make below are intended to remove from public access and general publication both direct reference to the fee rates charged by Mr Rider in this matter and other information which may indirectly lead to a calculation of those fee rates.

139. I have declined to make all the other non-access and non-publication orders sought by the Chief Commissioner. However, in order to preserve the Chief Commissioner’s position in the event he wishes to appeal against my decision, I will order that, subject to further order, these reasons for decision not be published generally for seven days after they have been published to the parties.

Orders

140. Having regard to the material before me the correct and preferable decision of the Tribunal is as follows.

Costs Orders

1. Pursuant to s 60 of the Civil and Administrative Tribunal Act 2013 Mr Wu shall pay the Chief Commissioner’s costs of and incidental to the proceedings as follows:

1. 50% of the costs incurred from 3 June 2017 to 17 August 2017, and

2. 100% of the costs incurred from 18 August 2017 to the date of publication to the parties of these reasons,

3. providing that the said costs shall not include any costs incurred by the Chief Commissioner in relation to the Chief Commissioner’s application for a confidentiality order.

2. The amount of costs to be paid by Mr Wu shall be as agreed between the parties or as assessed on an ordinary basis.

Confidentiality Orders

1. Order number 3 made 14 February 2019 is vacated.

2. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 and until further order of the Tribunal, access to and publication of details of the fee rates charged by counsel engaged by the Respondent in respect of the subject proceedings shall be restricted to the Applicant, his legal representatives, and any costs experts or interpreters he may engage in respect of or incidental to these proceedings.

3. The Applicant and his legal representatives, costs experts and interpreters may only use the details of fee rates referred to in order (4) and the information referred to in order (7) for purposes of or ancillary to these proceedings.

4. The Applicant shall on publication of these orders inform each person to whom he has provided any documents, containing any of the fee rates or information referred to in order (5), of these orders.

5. Consequent upon order number (4), access to and publication of the following shall be restricted in accordance with order (4). All references to amounts are to monetary amounts. Orders (b) to (d) relate to pages of KMK-2:

1. All amounts in paragraph [5] of the affidavit of Kathleen Margaret Kerr made 30 January 2019.

2. Page 1, all amounts.

3. Pages 41 to 45 and 58 to 66, all amounts, and.

4. Pages 46, 48, 49, 52 and 54 to 57, all amounts and all references to hours or parts of an hour.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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: 30 May 2019