Appeal Panel - Internal CITATION: Commissioner of Police, NSW Police v Snape (No.2) (GD) [2006] NSWADTAP 35 APPELLANT PARTIES: Commissioner of Police, New South Wales Police RESPONDENT Ronald Snape FILE NUMBER: 039083 HEARING DATES: On the papers SUBMISSIONS CLOSED: 05/16/2006 DATE OF DECISION: 08/14/2006 BEFORE: Chesterman M - ADCJ (Deputy President); Robinson MA - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: costs MATTER FOR DECISION: Costs FILE NUMBER UNDER APPEAL: 033079 DATE OF DECISION UNDER APPEAL: 12/12/2003 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Brooks Maher v Cheung [2001] NSWADT 18 Commissioner of Police, New South Wales Police v Snape [2004] NSWADTAP 15 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Director General, Department of Education and Training v Simpson (GD) [2001] NSWADTAP 6 CASES CITED: Fosse v Director of Public Prosecutions (1989) 16 NSWLR 540 Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 Health Insurance Commission v Jeanette Margaret Van Reesch & Anor [1996] 118 FCA 1 Hutchings Electrical v Director General, Department of Fair Trading (No. 2) [2002] NSWADT 255 Snape v Commissioner of Police [2003] NSWADT 262 APPELLANT W Pisani, agent REPRESENTATION: RESPONDENT B Levet, barrister ORDERS: The Respondent's application for the costs of the appeal is dismissed REASONS FOR DECISION Introduction 1 This decision deals with an application by the Respondent to this appeal, Mr Ronald Snape, for the costs of the appeal. 2 In this matter, the Appellant, who is the Police Commissioner, New South Wales Police, appealed against a decision of the Tribunal (Snape v Commissioner of Police [2003] NSWADT 262) delivered on 12 December 2003. In that decision, the Tribunal had set aside a determination of the Appellant refusing an application by the Respondent for a Category H licence under the Firearms Act 1996. 3 In a reserved judgment delivered on 13 May 2004, the Appeal Panel dismissed the appeal (Commissioner of Police, New South Wales Police v Snape [2004] NSWADTAP 15). 4 In a letter dated 1 March 2006 to the Registrar, Mr Bruce Levet, counsel for the Respondent, drew attention to the fact that in written submissions, dated 11 March 2004, on which the Respondent had relied at the hearing of the appeal, the Respondent had contended that 'the appeal should be dismissed with costs'. Mr Levet pointed out in his letter that while in the judgment dated 13 May 2004 the Appeal Panel had dealt with the substance of the appeal, it had not determined his client's application for costs. He submitted that this was still a 'live issue', on which the Panel could and should make a determination despite the lapse of time. 5 On 14 March 2006, the Presiding Member of the Appeal Panel ruled in chambers that the Panel should determine the following two questions: (a) whether, having regard to the lapse of time since its decision on the appeal, it was still appropriate for the Respondent's application for costs to be entertained; and (b) if so, whether the application should be upheld. 6 On the same day, the Presiding Member directed that, unless there was a request on reasonable grounds for a hearing on these questions, they should be determined 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). He also gave directions for the filing and serving of written submissions. 7 By the date (16 May 2006) on which, pursuant to a subsequent direction, all submissions were to be filed and served, the Registry had received submissions on the Respondent's behalf contained in Mr Levet's letter of 1 March 2006 and submissions on the Appellant's behalf by Senior Sergeant Winston Pisani, contained in a document dated 11 April 2006. The Respondent did not avail himself of the opportunity provided to him to reply to the Appellant's submissions, which were served on Mr Levet on 13 April 2006. Whether the Appeal Panel should deal with this application for costs 8 The Respondent's contentions. In arguing that the Appeal Panel should determine the issue of costs, Mr Levet relied on a short passage in the judgment of Wilcox J (with whom Northrop and Nicholson JJ agreed) in the Federal Court case of Health Insurance Commission v Jeanette Margaret Van Reesch & Anor [1996] 118 FCA 1. Here his Honour observed that the Tribunal whose decision was being challenged in the Court had failed in its reasons to indicate whether it had considered a party's submission on one of the four 'principal issues' to be resolved and, if so, why it had rejected this submission. He went on to say: 'In this situation, it is apparent that the matter must be remitted to the Tribunal for reconsideration.' 9 Mr Levet argued that this passage was authority for the proposition that when an application is made to a Tribunal, the Tribunal must specifically consider it and must either accept or reject it. If it does none of these things, as was the case here, the issue raised in the application will still be a live one, and the Tribunal remains under a duty to determine it, even if a significant period of time has elapsed. 10 Mr Levet added that, in the period between the Appeal Panel's decision in May 2004 and his letter of 1 March 2006 to the Registry, the Respondent had attempted unsuccessfully to negotiate the question of costs with the Appellant. 11 The Appellant's contentions. On behalf of the Appellant, Mr Pisani argued that, while these observations by Wilcox J demonstrated that a failure to consider a submission was an error of law, there were still 'strict statutory timeframes' within which the Respondent's 'appeal to correct this' should have been lodged. Referring to s 119 of the ADT Act, which provides for appeals to the Supreme Court from decisions of an Appeal Panel, he submitted that any appeal period running from 13 May 2004, the date of the Panel's decision in this case, had 'well and truly passed'. He claimed that by not addressing until now the Panel's 'inadvertence' in failing to deal with the issue of costs, the Respondent had 'in essence acquiesced' in there being no order for costs. 12 Mr Pisani referred also to s 87 of the ADT Act, which specifies the circumstances in which the Tribunal may alter a decision that it has given on grounds of 'obvious error'. 13 Finally, he relied on the judgment of Smart J in Fosse v Director of Public Prosecutions (1989) 16 NSWLR 540. In this case, his Honour held that a committing magistrate had no jurisdiction to order costs in favour of a defendant who had been discharged unless an application for costs was made on the day of the discharge. At 546-7, he said that committal proceedings, which are administrative in nature, could not be regarded as still 'on foot' when there was no outstanding application for costs and no date ordered on which costs could be sought. At 547, he said:- Finality is important and in many smaller and shorter cases it would impose an undue burden as to costs and otherwise on an informant to have to return to the court on another day because the defendant omitted to seek an order on being discharged. 14 While acknowledging that in the present case the Respondent did include an application for costs in his submissions to the Appeal Panel, Mr Pisani argued that the dicta cited from Fosse showed that the Panel was now functus officio and no longer had jurisdiction to award costs. 15 The Appeal Panel's conclusions. In the opinion of the Appeal Panel, this application by the Respondent for the costs of the appeal should now be determined. The Panel considers that the approach taken by Wilcox J in the passage cited from Health Insurance Commission v Van Reesch is applicable to the present situation. If it had any discretion to decline to determine the application because more than two years had elapsed since its judgment on the appeal, it could only exercise this discretion on compelling grounds, such as that the Respondent's delay in pursuing the matter occasioned significant prejudice to the Appellant. But no such grounds have been suggested in the Appellant's submissions. 16 In the Panel's opinion, the two provisions of the ADT Act on which Mr Pisani relied do not bear at all on this question. This is not a case involving correction of an error in a Tribunal decision, pursuant to s 87, but one involving determination of an application that was left unresolved, and indeed was not even mentioned, in the relevant decision. The time limits allowed for appeals to the Supreme Court under s 119 have no bearing on the question whether a substantial delay should be permitted to occur between the making of an application that is ancillary to substantive proceedings in the Tribunal and the determination of that application. 17 Mr Pisani himself acknowledged that the situation dealt with in Fosse v DPP was quite distinct from the situation here. In contrast to Fosse, this is not a case where a party seeking the determination of a costs application failed to make the application until after the substantive proceedings had been determined. Smart J's observations regarding the need for finality cannot be transposed intact to a wholly different context such as the present. 18 Having resolved this first question in the Respondent's favour, the Panel must now consider his application for costs on its merits. Whether the Appeal Panel should award costs to the Respondent 19 The Respondent's contentions. Having first noted that the amount of costs claimed by the Respondent was $2,750 inclusive of GST, Mr Levet submitted that the Appeal Panel, in determining the application, should 'have regard to the general history of the matter'. He went on to point out that the Respondent, following the rejection of his application for a licence under the Firearms Act, had argued his own case successfully before the Tribunal and had also succeeded in the appeal. In the appeal, however, he had incurred counsel's fees. Mr Levet contended that it was 'only proper' that the Respondent's costs of the appeal be 'visited upon the unsuccessful Appellant', who had 'considerably deeper pockets' than the Respondent. 20 The Appellant's contentions. Mr Pisani commenced his submissions on this question by quoting the following passage from the Tribunal's judgment in Robinson v Commissioner of Police, NSW Police [2006] NSWADT 45 at [6 – 7]:- 6 The Tribunal has no inherent power to award costs however, it has been given such a power under s.88 of the Administrative Decisions Tribunal Act 1997 (" ADT Act "). It is a discretionary power but it can only be exercised where the Tribunal is satisfied that there are "special circumstances" warranting an award of costs. This means that in order to obtain a cost order an applicant has two hurdles to overcome. The first being able to identify "special circumstances" and the second being able to show that the "special circumstances" warranted an award of costs: see Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29]. 7 "Special circumstances" have been defined as "circumstances that are out of the ordinary, but without having to be extraordinary or exceptional". It is well established that mere success in a review application does not constitute special circumstances: see Brooks Maher v Cheung [2001] NSWADT 18 at [11]. It is also well established that the mere fact that the Tribunal did not agree that the Administrator's decision was a correct and preferred decision is not sufficient to constitute special circumstances for the purposes of s.88(1) of the ADT Act: see Hutchings Electrical v Director General, Department of Fair Trading (No. 2) [2002] NSWADT 255 at [18]. 21 Mr Pisani referred also to Director General, Department of Education and Training v Simpson (GD) [2001] NSWADTAP 6. In rejecting an application for the costs of an appeal brought (like the present appeal) against a decision made in the General Division, the Appeal Panel said at [11]:- We are disinclined in respect of applications of this kind to explore the history of an application for review of a decision prior to the time of its lodgment in the Tribunal, unless there is substantial material placed before us which might plainly demonstrate for example that the decision put in issue by the application was wholly unmeritorious – and that was known to be so or should have reasonably been understood to be so by the Department prior to the making of the application. Or that there was some other defect of a similar magnitude. 22 Mr Pisani argued that both in the first instance decision and in the appeal in this case there were 'live issues to be tried and determined'. It was therefore appropriate, he said, for the Appellant, who was charged with the role of regulating the possession and use of firearms in society, to defend both proceedings. It followed that there were no 'special circumstances' warranting an award of costs, even though the Appellant was unsuccessful. 23 The Appeal Panel's conclusions. In the Panel's opinion, the Respondent's application for costs must be dismissed, for the reasons advanced by Mr Pisani. It would add only the following three observations. 24 First, Mr Pisani's contentions were primarily directed to refuting any suggestion that the Appellant's defence of the appeal fell within one recognised category of 'special circumstances' within the meaning of s 88 of the ADT Act – namely that the unsuccessful party in the proceedings has sought to pursue a claim or maintain a defence that has no tenable basis in fact or in law. As is apparent from reading the Panel's reasons for judgment on the appeal (Commissioner of Police, New South Wales Police v Snape [2004] NSWADTAP 15), it did not consider the appeal to be unmeritorious. There were indeed 'live issues' to be determined, which were not at all straightforward. 25 Secondly, the Panel has given its own consideration to the possible applicability of other recognised categories of 'special circumstances'. They are usefully summarised (subject to a qualification explained below) in the Tribunal's Practice Note No. 12, which was reissued on 11 May 2005. As outlined in that Note, they include such behaviour by a party as 'vexatiously conducting the proceedings' and 'prolonging unreasonably the time taken to complete the proceedings'. 26 The Panel has carried out this exercise because the submissions on behalf of the Respondent did not expressly deal at all with the requirement of 'special circumstances'. Its conclusion is that the Appellant's conduct in relation to the appeal did not fall within any of these other categories of 'special circumstances'. 27 Thirdly, the Panel has taken account of the relatively recent decision of the Court of Appeal in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81. Here the conduct of the appellant, a landowner, in refusing to recognise the existence of a retail shop lease granted to the respondent by a previous owner, in failing to register it and in withholding consent to the assignment of it, was held to be 'clearly out of the ordinary and grossly unreasonable so far as the respondent tenant was concerned' (see the judgment of Santow JA, with whom Mason P and Brownie AJA agreed, at [60]). The Court held that this constituted 'special circumstances', warranting a costs order in the respondent's favour under s 88 of the ADT Act. Santow JA added at [60]: 'While a finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration'. 28 This decision, which modifies to some degree the description of 'special circumstances' set out in Practice Note No. 12, is clearly not applicable to the present case. The Appellant's conduct in this matter was neither 'grossly unreasonable' nor 'seriously unfair'. 29 For the foregoing reasons, the Respondent's application for costs must be dismissed. 30 Neither of the parties referred in their submissions to the costs of this application itself. The Panel makes no order in relation to these costs. 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.