Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gibson v Commissioner of Police, NSW Police Force [2023] NSWCATAD 212 Hearing dates: On the papers Date of orders: 8 August 2023 Decision date: 08 August 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: J D Little, Senior Member Decision: (1) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing on the question of costs is dispensed with. (2) The application by the applicant for an order for costs is dismissed Catchwords: COSTS – administrative review proceedings – whether special circumstances for an award of costs Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Cases Cited: BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87 Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9] Gibson v Commissioner of Police, NSW Police Force [2023] NSWCATAD 110 Texts Cited: None Category: Consequential orders Parties: Stuart Gibson (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: NJN Lawyers (Applicant) Sparke Helmore Lawyers (Respondent File Number(s): 2022/00386519 Publication restriction: None REASONS FOR DECISION 1. On 12 May 2023 reasons were published for the decision to set aside a decision of the respondent Commissioner of Police to refuse the Applicant's application for a firearms licence: Gibson v Commissioner of Police, NSW Police Force [2023] NSWCATAD 110. 2. On 19 May 2023, at the Applicant's request, the Tribunal made orders to allow for the exchange of written submissions on the question of costs and requested that any objection to the matter to be heard on the papers be included in those submissions. 3. On 26 May 2023, the Applicant filed submissions in support of his application seeking an order for costs due to special circumstances, pursuant to s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). 4. On 2 June 2023, the Respondent filed submissions in response resisting the relief sought by the Applicant. 5. Both parties made written submissions on the application for costs and agreed that the costs application could be determined on the papers. For the reasons that follow, the Tribunal has decided not to make an order for costs, and each party should bear its own costs Background 1. The factual background to the Commissioner's decision to refuse the firearms licence held by the Applicant is summarised at paragraphs [5] of the reasons. The Commissioner's decided that the Applicant had exhibited aggressive and at times violent behaviour based upon allegations contained in two Police Event Reports. The Commissioner's decision was affirmed on internal review. 2. In the administrative review proceedings in this Tribunal the Respondent relied upon the Applicant's conduct as alleged in the Police Reports described above, as well as other alleged conduct of the Applicant as described in additional Police Reports not referred to in the decision made on internal review but included in the s 58 bundle. 3. Additionally, the Respondent drew the Tribunal's attention to the allegation in one of the Police Reports that the Applicant had not stored his firearms consistent with his obligations as well as the evidence that the Applicant had allowed his licence to expire. Based upon these allegations, the Commissioner submitted that it is not in the public interest for to hold a firearms licence as the Tribunal could not be satisfied that there was "no risk" associated with the granting of the Applicant's firearms licence. 4. Conversely, the Applicant disputed the factual allegations as contained in the Police Reports and gave competing evidence as described in my reasons at paragraphs [19]-[26]. The evidence and submissions relied upon by the Applicant is as described at paragraph [14] of my reasons. 5. Significantly, the Applicant was cross-examined and gave oral evidence at the hearing. The Applicant submitted that in those circumstances – namely, where the Applicant disputes the accuracy of the allegations; has given evidence and been cross-examined but the markers of the Police Reports had not - the evidence of the Applicant should be preferred. 6. As explained in those reasons, the Tribunal set aside the refusal decision, being not satisfied that it was not in the public interest for the Applicant to hold a firearms licence. Application for costs 1. Under s 50(2) of the CAT Act, the Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. 2. The parties agreed that the question of costs can be determined on the papers. The Tribunal is satisfied that the issue of costs can be adequately determined in the absence of the parties by considering the parties' written submissions. The parties would be put to unnecessary expense if a hearing on costs were held. An order under s 50(2) of the NCAT Act has accordingly been made. 3. The general rule in relation to costs in the Tribunal is that s 60(1) of the NCAT Act provides that each party is to bear its own costs. Section 60(2) provides the Tribunal with discretion to award costs if it is satisfied that there are special circumstances warranting such an order. In deciding whether there are special circumstances, the Tribunal may have regard to the factors in s 60(3), which reads as follows: (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. 1. Special circumstances are circumstances that are out of the ordinary but need not be those which are exceptional or extraordinary: Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]. 2. If satisfied that there are special circumstances, the Tribunal must further be satisfied that they are circumstances warranting an award of costs. The exercise of the discretion requires the Tribunal "to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs": BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87at [9]. 3. The Applicant has not identified a "special circumstance" with specific reference to a subsection of s 60(3) of the CAT Act. Rather, the basis of the application as stated in the Applicant's written submissions is: "It is our submission that the circumstances in this matter are out of the ordinary, due to the respondent's knowledge and understanding of relevant evidence and the weakness of the respondent's eviden[ce], costs should be aware[d] to the applicant. This is due to the [fact that] the Commissioner deals with evidentiary matters on a regular basis and would have an understanding of relevant evidence to rely on in exercising a discretion. We submit that the Commissioner should have realised and appreciated the weakness of the evidence on the applicant's request for an internal review. At that stage, should have accepted the applicant's application to hold a firearms licence." 1. Additionally, the Applicant relies upon correspondence as between his representative and the representative of the Respondent which he refers to as inviting the respondent to commence "settlement" discussions. The correspondence is dated 11 April 2023 and reads, in part: "… as our client is self-employed and a small business, are there any avenues, in light of our client's evidence and the s 58 material that clearly identifies any alleged issues being circa 9 years ago, that the Commissioner will reconsider their position and allow our client to reobtain his firearms licence without going to the costs of a hearing in Sydney." 1. On the same day, the Respondent's representative responded as follows: "… We also confirm our instructions that the Firearms … Registry do not consider that the matter is suitable for remittal and maintains its position that the Applicant does not meet the necessary requirements for holding a firearms licence in NSW. We confirm that the Respondent's written submissions will detail the position." 1. In response, the Respondent contends that: 1. Following receipt of the Applicant's application for review, the Respondent was required to respond to the issues in dispute within the ordinary Tribunal process. There was not delay or unreasonable conduct. 2. In respect to the Respondent's position, it was open to the Respondent to have regard to the Police Reports and the allegations within them which, if accepted, indicated that the Applicant failed to comply with its requirements under the law and had a history of aggressive and violent behaviour. The emails of 11 April 2023 were exchanged in this context and there is nothing unreasonable about the Respondent taking the position, at that time, that the Applicant did not meet the requisite requirements. 3. In the absence of the Applicant's further evidence (including oral evidence) and submissions testing the allegations in the Police Reports which were given at final hearing, the Respondent was not on a position to be satisfied that the Applicant ought to have a firearms licence. 4. Accordingly, the internal review decision is entirely distinguishable from the Tribunal's decision, which had regard to larger degree of evidence and submissions (much of which was unavailable prior to the hearing) and ultimately reached a different conclusion upon its own review of the merits of the application, at a different point in time and after the benefit of testing the Applicant's evidence at the hearing during cross-examination. Discussion and findings 1. The task of the Tribunal in the administrative review proceedings was to determine, based on the applicable law and the evidence before it, whether the decision to refuse the firearms licence was the correct and preferable decision: s 63 Administrative Decisions Review Act 1997. To the extent that differs from the original decision maker – this does not give rise to a "special circumstance" for the purposes of awarding costs. 2. After consideration of the parties' alternate positions, I accept the submissions of the Respondent as summarised above. 3. Specifically, I find that the conduct of the Respondent was not unreasonable or caused delay and otherwise, no "special circumstances" exist. In this respect, it was open to the Respondent to have regard to the Police Reports and the allegations within them supporting that the Applicant failed to comply with his requirements under the law and had a history of aggressive and violent behaviour and to resist the Application of the Applicant. The emails of 11 April 2023 were exchanged in this context. It was the Applicant's further evidence and specifically his oral evidence that was only given at the final hearing that the Tribunal accepted. 4. In short, the decision turned on the factual findings which were disputed but which turned on the course of the final hearing and the ultimate findings regarding disputed facts. The resolution of such dispute does not amount to a "special circumstance" giving rise to an entitlement on behalf of the Applicant to his costs irrespective of the fact that the factual dispute was decided in the Applicant's favour. To do so would be reconfiguring the test for costs as one analogous or consistent with the ordinary rule in other jurisdictions that costs follow the event. Such an outcome is inconsistent with ss 60(1) and 60(2) of the NCAT Act. 5. In summary, I do not find any "special circumstances" to justify an order of costs. 6. The orders of the Tribunal are: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing on the question of costs is dispensed with. 2. The application by the applicant for an order for costs is dismissed I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2023