Jakelic v Commissioner of Police, NSW Police (No 2) [2007] NSWADT 127

CITATION: Jakelic v Commissioner of Police, NSW Police (No 2) [2007] NSWADT 127

DIVISION: General Division

APPLICANT PARTIES: Mirko Franko Jakelic RESPONDENT Commissioner for Police, NSW Police

FILE NUMBER: 063198

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 5 April 2007

DATE OF DECISION: 18 June 2007

BEFORE: Leal S - Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Firearms Act 1996

Brooks Maher v Cheung [2001] NSWADT 18 Director General, Department of Education and Training v Simpson [2001] NSWADTAP 6 CASES CITED: Hutchings Electrical v Director General, Department of Fair Trading (No 2) [2002] NSWADT 255 Jakelic v Commissioner of Police, NSW Police [2007] NSWADT 7 McCabe (No 2) v Electoral Commissioner, State Electoral Office [2003] NSWADT 58

APPLICANT G Newton, Barrister REPRESENTATION: RESPONDENT M Maddox, agent

ORDERS: The applicant's application for costs is dismissed.

REASONS FOR DECISION Introduction 1 Mr Mirko Franko Jakelic has made an application for costs against the respondent, the Commissioner of Police. The Commissioner of Police was given an opportunity to provide written submissions in relation to Mr Jakelic's application. No submissions were received by the Commissioner of Police in relation to this matter. 2 On 9 January 2007, the Tribunal handed down a decision in the substantive matter: Jakelic v Commissioner of Police, NSW Police [2007] NSWADT 7. In this decision, I set aside the decision of the Commissioner of Police to revoke Mr Jakelic's firearms licence. 3 The Commissioner had revoked Mr Jakelic's licence on the basis that he considered that it would not be in the public interest for him to continue to hold a firearms licence authorising the possession and use of firearms. In making this decision, the Commissioner took into consideration that: Mr Jakelic had pleaded guilty to five counts of possessing a prohibited weapon without a permit; Mr Jakelic had been charged with a series of offences that were discharged in the Melbourne Magistrates Court; A police report (a COPS event sheet) stated that Mr Jakelic had used standover tactics regarding the payment of an account to car mechanics in Bankstown in 2000. 4 In relation to the conviction for the possession of prohibited weapons, I accepted the applicant's evidence that the items in question had been for display purposes only and were removed once the applicant was aware that they were, in fact, prohibited weapons. 5 In relation to the those offences discharged in the Melbourne Magistrate's Court, I had regard to the dismissal of the charges at the committal proceedings and to the transcript of those proceedings in which the magistrate stated that Mr Jakelic's role in the incident leading to the charges had, in fact, been to try 'to calm the situation down.' 6 In relation to the police report that Mr Jakelic had engaged in standover tactics, I was not satisfied that there was any evidence that he had, in fact, done so. Relevant law 7 In accordance with s76 of the Administrative Decisions Tribunal Act 1997, I have determined this matter without holding a hearing. 8 The Tribunal has no inherent power to make an order for costs. Its power to award costs in applications for review of an administrative decision is entirely derived from s.88(1) of the ADT Act. That section does not give the Tribunal an unfettered discretion to award costs as apply in judicial proceedings, namely costs following the event, where, as a general rule, the successful party is entitled to an order for costs in respect of the proceedings. 9 As has been highlighted by numerous decisions of the Tribunal, s. 88 of the ADT Act only gives the Tribunal power to award costs where it is satisfied that the matter before it gives rise to "special circumstances" that warrant an award of costs. ( Hurt v Director General, Department of Fair Trading [1999] NSWADT 50 at [9] and McCabe (No 2) v Electoral Commissioner, State Electoral Office [2003] NSWADT 58 at [6]). That is, something more than mere success is required. ( Brooks Maher v Cheung [2001] NSWADT 18 at [11] and Director General, Department of Education and Training v Simpson [2001] NSWADTAP 6 at [6]) 10 It has also been held that the fact that the Tribunal did not agree with the administrator's decision is not sufficient to constitute special circumstances for the purpose of s. 88(1) of the ADT Act. ( Hutchings Electrical v Director General, Department of Fair Trading (No 2) [2002] NSWADT 255 at [18]) 11 On 9 October 2006, the Tribunal issued a Practice Note in respect of costs (Practice Note No 12). That Note emphasises that in proceedings for review of a reviewable decision 'costs can only be ordered in special circumstances'" (at [4]). The Practice Note also sets out, by way of example, circumstances that may be special and justify a costs order (at [ 2]). These emphasise circumstances where one party's conduct in the proceedings has placed the other party at an unfair disadvantage. Special circumstances 12 The threshold question, then, is whether there are special circumstances in this matter which warrant an award of costs. 13 According to Mr Jakelic, there are special circumstances warranting an award of costs because the Commissioner of Police conducted the proceedings in the way that disadvantaged Mr Jakelic by making a claim against him that had no tenable basis in fact or law. Mr Jakelic submitted that the decision by the Commissioner of Police to revoke the applicant's firearms licence was based on allegations and findings of fact that were without foundation. 14 In relation to the dismissal of charges against him in the Melbourne Magistrate's Court, Mr Jakelic submitted that by not seeking a copy of the transcript of the court proceedings to consider in deciding whether to revoke Mr Jakelic's licence, the Commissioner of Police 'conducted the proceedings in a way that disadvantaged the applicant and led to the possibility that the Tribunal would be misled.' 15 I disagree with Mr Jakelic's submissions. 16 The charges made against Mr Jakelic in the Melbourne Magistrates' Court involved serious allegations, namely blackmail, make threat to kill, use threatening words in public place, unlawful assault, extortion with threat to kill and unlicensed crowd control. The Commissioner of Police is entitled to have regard to material in relation to allegations of criminal behaviour even if the charges are dismissed. The objects and principles of the Firearms Act 1996 state that firearms are a privilege and that where there has been or is a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. 17 The dismissal of the charges against Mr Jakelic was one of several issues considered by the Commissioner of Police in determining whether to revoke Mr Jakelic's firearms licence. As the evidence was helpful to Mr Jakelic, it was appropriate that he should be the one to request the transcript of the proceedings rather than the Commissioner of Police. I do not agree that anything in the Commissioner's conduct placed Mr Jakelic at an unfair disadvantage thereby warranting a finding of special circumstances. 18 Mr Jakelic pleaded guilty to five charges of possessing prohibited weapons without a permit. I found that the weapons in question were for display only and that Mr Jakelic did not, in my view, pose a risk to public safety. The fact remains, however, that Mr Jakelic had pleaded guilty to the offences and that it was appropriate for the Commissioner of Police to have regard to these offences in deciding whether or not Mr Jakelic's firearms licence should be revoked. 19 The fact that I didn't agree with the Commissioner's finding does not, in itself, give rise to a finding of special circumstances in accordance with s88 of the Act. There was no conduct by the Commissioner to disadvantage Mr Jakelic. This was not a situation where the Commissioner made a claim with no tenable basis in fact or law. There are no special circumstances made out. 20 In relation to the allegations of standover tactics, the Commissioner of Police had available to him a police report (COPS event sheet) which he was entitled to take into consideration in his decision to revoke Mr Jakelic's licence. Weighing up the report and the evidence put before me by Mr Jakelic, I decided that I was not satisfied that the report raised concerns as to whether it would be in the public interest for Mr Jakelic to continue to hold a firearms licence. Although the report had little probative value in relation to the allegations of standover tactics, it was valid for the decision maker to take it into account, in combination with the rest of the evidence before it. There are no special circumstances made out. 21 In conclusion, I find that there is nothing in the submissions by Mr Jakelic to satisfy me that special circumstances have been made out in this case such as to warrant an award of costs to Mr Jakelic. Order 22 Accordingly, the Tribunal orders that Mr Jakelic's application for costs is dismissed.