Nastav v Commissioner of Police, New South Wales Police (No. 2) [2008] NSWADT 112

CITATION: Nastav v Commissioner of Police, New South Wales Police (No. 2) [2008] NSWADT 112

DIVISION: General Division

APPLICANT Stephen Nastav PARTIES: RESPONDENT Commisioner of Police, New South Wales Police

FILE NUMBER: 063162

HEARING DATES: 12 February 2008

SUBMISSIONS CLOSED: 12 February 2008

DATE OF DECISION: 17 April 2008

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Migration Act 1958 (Cth)

CASES CITED: Nastav v Commissioner of Police, NSW Police [2007] NSWADT 291 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

APPLICANT Q Nguyen, barrister REPRESENTATION: RESPONDENT S Sheather, solicitor

ORDERS: 1. The Commissioner's application for amendment of paragraph [8] of the Tribunal's decision in Nastav v Commissioner of Police, NSW Police [2007] NSWADT 291 is dismissed 2. The Tribunal notes that the Commissioner did file and served written submissions on costs as directed.

REASONS FOR DECISION Introduction 1 On 13 December 2007, the Tribunal determined, pursuant to section 88 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act), that the Commissioner should pay Mr Nastav's legal costs, as assessed or agreed, from 28 July 2006: see Nastav v Commissioner of Police, NSW Police [2007] NSWADT 291 ('the Tribunal's decision on costs'). That decision was made on the basis of no submissions having been received by the Commissioner, notwithstanding orders having been made in this regard: see paragraph [8] of the Tribunal's decision on costs. 2 Following the publication of the Tribunal's decision on costs, Mr Sheather, on behalf of the Commissioner, wrote to the Registrar informing her that Senior Sargent Pisani had filed detailed submissions in regard to costs. While there was no record on the Commissioner's files in regard to when they were filed, Mr Sheather requested that the Registrar examine the Tribunal's files to ascertain whether such submissions were received but misfiled. 3 A copy of Senior Sargent Pisani's written submissions were located and it was evident from the Tribunal's receipt stamp that they were filed on 15 June 2007. On being advised of this, Mr Sheather requested that the decision be amended pursuant to the 'slip rule' as set out in section 87 of the ADT Act to reflect the fact that the Commissioner's submissions on the issue of costs had in fact been filed with the registry in accordance with the Tribunal's directions. 4 At my directions, the Registrar listed the matter for directions on 12 February 2008 so that the parties could make oral submissions in regard to the Commissioner's application. I also directed that consideration be given to making submissions on the basis of the principles in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. Directions hearing 12 February 2008 5 At the directions hearing, it was conceded by the parties that the facts on which the decision in Bhardwaj was based were identical to those in this application. Mr Sheather went on to say that the Commissioner was not pressing a finding that differed to that of the Tribunal in its earlier decision on costs. That is, what the Commissioner was seeking was a correction of the statement that the Commissioner had failed to file submissions on costs. 6 Mr Nguyen, barrister, on behalf of Mr Nastav, conceded that the Commissioner's submissions on costs were served on Mr Nastav as directed. However, it submitted that the Tribunal should reconsider the issue of costs on the basis of the reasoning of Kirby J in Bhardwaj. The decision of Kirby J was a minority decision. Does section 87 of the ADT Act apply? 7 Section 87 of the ADT Act relevantly provides as follows: 87 Power to correct decisions of the Tribunal (1) If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal. (2) … (3) Examples of obvious errors in the text of a decision or statement of reasons are where: (a) there is an obvious clerical or typographical error in the text of the decision or statement of reasons, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect in form, or (d) there is an inconsistency between the decision and the statement of reasons. 8 While I accept that, contrary to what was stated in the decision, the Commissioner had in fact made written submissions. However, as these submissions were not evident in the file at the time the decision was made it cannot be said that what is stated in the decision was an 'obvious error'. Nor do the circumstances of this application fall within any of the examples set out in sub-section 87(3) of the ADT Act. 9 Accordingly, in my opinion section 87 has no application to what the Commissioner seeks to address. Does Bhardwaj apply? 10 The issue in Bhardwaj was whether the Administrative Appeals Tribunal ('the AAT') had power to make a second decision in regard to Bhardwaj's application for review of the Minister's decision to cancel his student visa pursuant to the Migration Act 1958 (Cth). On receipt of the application the AAT wrote to the parties and advised them of the proposed hearing date and invited the applicant to attend. The day before the hearing, the agent for Bhardwaj, sent in a letter to the AAT advising that Bhardwaj was ill and not able to attend the hearing and that he requested an adjournment. The matter was heard and determined on the following day, without the Tribunal Member being aware of the letter that had been sent the previous day. On becoming aware of the letter, the Tribunal Member set the matter down for rehearing. Bhardwaj appeared at the hearing and the Tribunal Member made a new determination. 11 The High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that the AAT had the power to make the second decision. At [14] Gleeson CJ held that the AAT had through an administrative error, failed to implement its own intention, and failed to comply with the statutory requirements to give the Bhardwaj an opportunity to be heard. At [51] to [53], Gaudron and Gummow JJ (with whom McHugh J agreed at [63]) held that the first decision of the AAT involved a jurisdictional error and that 'in law' such a decision 'is not a decision at all'. 12 Kirby J on finding that there was a 'procedural flaw' in the first proceedings before the AAT, His Honour went on to find at [120] that as the Migration Act 1958 (Cth) expressly provided 'a mechanism for repair in the Federal Court. It must be promptly applied for. But if successful, it would result in the quashing, or setting aside, of the decision …'. On this basis His Honour found that the AAT had no power to make the second decision. In regard to the issue of discretion, His Honour only considered this issue in the context of the power of the Federal Court, which is of no relevance to these proceedings. 13 I am bound to follow the reasoning of the majority in Bhardwaj. However, that reasoning must be applied in accordance with the proper construction of the ADT Act and the relevant facts in this application. 14 In my opinion, in light of the position of the Commissioner, as stated by Mr Sheather, it is unnecessary for me to consider and determine these matters. The essence of the Commissioner's concern is that the Tribunal's decision on costs had incorrectly stated that the Commissioner had failed to file and serve written submissions in regard to costs. The Commissioner was not seeking to have the matter re-determined. These reasons for decision will rectify the error, which is of concern to the Commissioner. 15 In the event I am incorrect I would indicate that, having regard to the written submissions of Senior Sargent Pisani, they do not raise any new matters which would alter my findings and reasoning as set out in the Tribunal's decision on costs. Conclusion 16 For the reasons set out above, the appropriate order is that the Commissioner's application for amendment of paragraph [8] of the Tribunal's decision on costs be dismissed, and that the Tribunal formally note that the Commissioner had filed and served written submissions as directed.