Riley v Commissioner of Police, NSW Police [2007] NSWADT 198

CITATION: Riley v Commissioner of Police, NSW Police [2007] NSWADT 198

DIVISION: General Division

APPLICANT PARTIES: Peter John Riley RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 063053

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 1 June 2007

DATE OF DECISION: 29 August 2007

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit

MATTER FOR DECISION: Costs

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Firearms Act 1996

Brooks Maher v Cheung [2001] NSWADT 18 Cripps & Anor v G & M Dawson Pty Ltd & Anor (2006) NSWCA 81 Gizah Pty Limited -v- AXA Trustees Limited (No. 2) [2001] NSWADT 164 CASES CITED: Hutchings Electrical v Director General, Department of Fair Trading (No.2) [2002] NSW ADT Jakelic v Commissioner of Police, NSW Police (No 2) [2007] NSWADT 127 supports Mr Riley's contention. Miriani v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 52 North Eastern Travelstops Pty Limited v Bradley and Ors (No. 2) [2005] NSWADTAP 17 Raethel v Director-General, Department of Education & Training [2000] NSWADT 56

APPLICANT In person REPRESENTATION: RESPONDENT G De Courcey, solicitor

ORDERS: Mr Riley's application for costs is dismissed

REASONS FOR DECISION 1 Mr Riley applied to the Tribunal seeking review of a decision of the Commissioner of Police to revoke his firearms licence. He was ultimately successful in having his firearm's licence reinstated and has now brought an application for costs. He asserted that the NSW Firearms Registry erred during the process and that as a consequence he incurred substantial stress, time and expenditure. He submitted that costs should be awarded due to the 'special circumstances' of this matter. Background 2 This matter was initially heard in October 2006 at which time I concluded that the existing medical evidence suggested that Mr Riley could present a risk to others. An adjournment was granted on that basis that Mr Riley wished to obtain a medical report to assist in the matter. 3 The matter was before the Tribunal on 30 January 2007 following which Deputy President Hennessy made a number of directions including a direction that Mr Riley was to file and serve a current medical report by 8 March 2007. Mr Riley provided a medical report in accordance with the direction. 4 The Commissioner considered the contents of Mr Riley's medical report and sought an order and further directions from the Tribunal pursuant to section 65 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") that the matter be remitted to the Respondent for reconsideration. I made this order on 28 March 2007. The matter was relisted for further directions on 12 April 2007. 5 Following the consideration of the new medical report the Commissioner reinstated Mr Riley's Firearm's Licence. The matter was listed for dismissal on Tuesday 8 May 2007 and dismissed on that day. By an application brought on 9 May 2007 Mr Riley contends that 'special circumstances' exist that warrant an order for costs with respect to his application and he applied for his costs to be paid by the Commissioner in the amount of $3,285. The Commissioner opposes Mr Riley's application. Applicable Legislation 6 The Tribunal, subject to the satisfaction that special circumstances exist, may award costs pursuant to section 88 of the ADT Act which provides as follows: 88 Costs (1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs. (4) In this section, "costs" includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application. Mr Riley's application 7 Mr Riley points to the following in support of his application: 1. NSW Firearms Registry had a duty to impartially administer the due process in accordance to the legislation 2. The initial documentation for the removal of the firearms & licence indicated "till court matter finalised". This was not adhered to which raises the question the NSW Firearms Registry action was inappropriate due to a technical error. A precedence where court costs were awarded due to a technical error was the matter of "Jakelic v Commissioner of Police -S Leal File No 063198". 3. The NSW Firearms Registry advised a medical assessment was not necessary then used the non-provision of a medical assessment as a reason for the revoking of the licence. 4. Sufficient current medical assessments were available from "forensic psychiatrists" (Dr Lewin's) to provide adequate guidance to the NSW Firearms Registry to form the same conclusion as Mr D.M Bartholomeusz. Whether the reports were for the IRC or the NSW Firearms Registry would not influence the medical assessment contents. 5. The medical evidence had been reviewed by the IRC & during the IRC appeal process. Neither forming an opinion there was a risk. The NSW Firearms Registry are obligated to ensure judicial process is administered by giving "appropriate" due weight to such evidence from the IRC. 6. The NSW Firearms Registry failed to follow up on critical evidence the information provided by WorkCover NSW was inaccurate or misleading in that the applicant posed a significant risk and WorkCover were concerned for the safety of their staff. In particular having knowledge of evidence in March - May yet not acting on the evidence till September or removing the powderman's certificate which they are empowered to do, having full knowledge the applicant possessed & utilised those qualifications whilst performing the required duties of employment. (To date there has not been a satisfactory response.) 8 He contends that unless accountability is part of the process, individuals within society will continue to bear the costs of poor administrative processes. The Commissioner's case 9 The Commissioner has opposed Mr Riley's application. Mr De Courcey provided written submissions in support of the Commissioner's position. He submits that costs can only be awarded where the Tribunal is satisfied that there are 'special circumstances' warranting an award of costs. He refers to the decision in Gizah Pty Limited -v- AXA Trustees Limited (No. 2) [2001] NSWADT 164 where Judicial Member Molloy stated at paragraph [29]. 29 Consequently, I am of the opinion that in order to satisfy the test of "special circumstances" one must find circumstances that are out of the ordinary, but without having to be extraordinary or exceptional, and those special circumstances would warrant an award of costs. In other words, I agree with Brooks Maher that there are two hurdles for a costs applicant to overcome. 10 He submits that mere success in a review application, which is not the case in the matter in any event, does not constitute special circumstances: Brooks Maher v Cheung [2001] NSWADT 18 and Hutchings Electrical v Director General, Department of Fair Trading (No.2) [2002] NSW ADT 255 at [18]. In Brooks Maher v Cheung the Tribunal noted at paragraph [14] that while the circumstances which would or would not warrant an award of costs could not be exhaustively listed, "... where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted". 11 The power to order costs should not be used as "some kind of sanction to punish agencies for poor administration", and the Tribunal should not embark on "a general enquiry into the way in which the agency dealt with the Applicant": Raethel v Director-General, Department of Education & Training [2000] NSWADT 56 at [56] -[58]. 12 Practice Note 12, which concerns costs, sets out examples of 'special circumstances' which may warrant an order for costs pursuant to section 88(1) of the ADT Act as to whether a party has conducted the proceedings in the way that disadvantaged another party to the proceedings by conduct such as: '(i) failure to comply with an order or direction of the Tribunal without reasonable excuse; (ii) failing to comply with this Act, the regulations, the rules or enabling enactment; (iii) asking for an adjournment as a result of (i) or (ii); (iv) causing an adjournment; (v) attempting to deceive another party or the Tribunal; (vi) vexatiously conducting the proceedings; (vii) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; and (viii) 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.' 13 Mr De Courcey submits that the Commissioner did not conduct the proceedings in such a way as to suggest bias nor were claims made for which there was no tenable basis in fact. The proceedings were not conducted vexatiously nor in a manner that disadvantaged the Applicant in any way. 14 With reference to Mr Riley's contentions the Commissioner makes the following comments: The matter was basically settled between the parties due to review of new evidence (the new medical report). The matter was not the subject of definitive orders or decision by the Tribunal, in fact the matter was dismissed by the Tribunal without the need to continue the original hearing. The Applicant made no formal application for costs in the report back or final dismissal of the matter, in fact it may be said following the dismissal that the Tribunal is 'functus officio' following it's action. The Firearms Registry had good and cogent reasons for the actions it originally took and the Applicant undertook to seek a review of such reasons in accordance with the legislation. No technical error has been progressed or subject to any decision by the Tribunal. The previous medical reports were outdated and the parties agreed to obtain further current evidence as necessary to progress their respective positions. The Respondent being satisfied with the new medical report of the Applicant proceeded to review the original decision in the Applicant's favour. The issue of the Industrial Relations Commission's decisions or findings were in respect to different proceedings and pursuant to different applications and legislation. The Applicant is intending to rely on issues which where not subject to full hearing within the substantive matter. The Applicant was not legally represented in the matter yet has requested payment of legal fees. The Psychologist Assessment was obtained for and paid by the Applicant on his own choosing not by the Respondent. The re-imbursement or payment or any actions with respect to gun licences, fees or transfers is not subject to payment by the Respondent. No application or evidence was ever led by the Applicant with respect to any costs, court attendance, etc. It is noted that the Respondent has not made any claim for costs with respect to the Applicant. The Applicant agreed to seek further medical evidence to support his application and the Respondent consented to allow him to do so and to progress, assist and reconsider the matter. The Applicant has not previously advised or provided the Respondent with any such costs application contained in his correspondence to the Tribunal dated 9 May 2007. 15 The Commissioner contends that the consideration of this application does not give rise to special circumstances that warrant the making of a costs order. Findings 16 As indicated above, section 88(1) of the ADT Act allows an award of costs where there are special circumstances that warrant an award. There are many decisions which have considered this section however few awards have been made in the Tribunal's General Division. (see however Miriani v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 52) Where an award of costs has been made it has often been against a party whose conduct has had a seriously unfair impact on the other. It is clear that serious unfairness is not a test that applies in all circumstances, but it is still a very useful guide. Cripps & Anor v G & M Dawson Pty Ltd & Anor (2006) NSWCA 81 at paragraph 60, the Court of Appeal considered whether special circumstances applied. It stated at paragraph [60]: For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While the finding of "serious unfairness" is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration". 17 After considering all the arguments presented by the parties I am generally in agreement with those presented by the Commissioner. I do not consider that the issued that Mr Riley has raised amount to special circumstances that warrant an award. I do not consider that the decision in Jakelic v Commissioner of Police, NSW Police (No 2) [2007] NSWADT 127 supports Mr Riley's contention. 18 Whilst it is clear that persisting in an almost unsupportable case will amount to special circumstances (see North Eastern Travelstops Pty Limited v Bradley and Ors (No. 2) [2005] NSWADTAP 17) that does not apply in a matter where the Tribunal is faced with material which might well result in a decision either way, depending on the fall of the evidence. In this case, there was evidence that supported the Commissioner's position that Mr Riley could present a risk to others. It was not until fresh evidence was obtained that this evidence was shown to no longer be the case. 19 It is my view that the Commissioner acted reasonably in adopting the position that he did. I do not consider that there are special circumstances that warrant an award of costs. Order Mr Riley's application for costs is dismissed.