Administrative Decisions Tribunal New South Wales Medium Neutral Citation: George v Commissioner of Police, NSW Police Force [2013] NSWADT 76 Hearing dates: On the papers Decision date: 11 April 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The Respondent is to pay to the Applicant the amount of $3,092.10 as costs of or incidental to proceedings in the Tribunal. 2. This amount is to be paid within 28 days of this order. Catchwords: Costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Cases Cited: AT v NSW Police [2010] NSWCA 131 B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21 George v Commissioner of Police NSW Police Force [2013] NSWADT 1 Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 Shandil v Animal Welfare League NSW [2013] NSWADT 15 Category: Costs Parties: Michael George (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: M George (Applicant in person) Sparke Helmore (Respondent) File Number(s): 123241 REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): Mr George ("the Applicant") was the holder of a Category AB firearms licence issued under the Firearms Act 1996 ("the Act"). The licence was revoked in July 2012 and the revocation was affirmed on internal review. The Applicant applied to the Tribunal for external review of the decision. 2The matter came before me for hearing on 20 December 2012. 3I determined that the decision should be set aside and invited the parties to make submissions in relation to the issue of costs. My reasons for decision are published as: George v Commissioner of Police NSW Police Force [2013] NSWADT 1 4The Applicant now seeks an order for the Respondent to pay his costs. Tribunal's power to award costs 5Section 88 of the ADT Act provides the Tribunal has power to award costs as follows: 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) 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 it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. (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. 6As can be seen from the terms of subsection 88(1), the general rule is that each party pay its own costs of the proceedings. However, the Tribunal does have power (i.e. a discretionary power) to award costs if it is satisfied that it is fair to do so, having regard to the matters set out in subsection 88(1A). 7In AT v NSW Police [2010] NSWCA 131, the Court of Appeal considered the application of section 88 of the ADT Act. At paragraph [26], the Court of Appeal held that the criterion of fairness was "not qualitatively different" from "the exercise of an unfettered discretion". At [33], the Court emphasised the general principle that each party should bear its own costs adding that: Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in subs (1A), but subject to the generality of para (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act. The Applicant's submissions 8The Applicant has sought an order that the Respondent pay an amount of $3,092.10 towards his costs in relation to his application to the Tribunal. 9In his submissions he pointed to the fact that the Respondent's delegate made the decision to cancel his licence on the basis of an allegation that he had made threats during a conversation with the Mental Health Access Line. He noted that the decision to cancel his licence was made without listening to a recording of the conversation and without reading the report provided by his psychologist. The report was available to the Firearms Registry at the time the decision was made. 10The Applicant was self represented at the hearing but he had engaged a solicitor who helped him obtain reports and prepare his evidence. The decision to cancel his licence meant that he had to get extra medical reports and he incurred significant expenses in doing so. He submitted that he would have been spared the extra expense if the matter had been dealt with appropriately. 11The Applicant submits that it is appropriate for the Tribunal to order the Respondent pay his costs as the Firearms Registry failed to take appropriate action that would have resolved this matter cheaply and efficiently. He outlined his expenses as follows: My legal costs are $550.00. I had the following costs getting medical reports: Mental Health Access Line Fee for release of records $50.00 Dr Sowden, Psychologist Initial interview = $180.00 - $125.15 (Medicare rebate) = $59.85 $59.85 Dr Sowden, Psychologist Report $654.00 Dr Al-Musawy General Practitioner Report $275.00 Dr Lee, Pain Specialist Report $430.00 Total: $1468.85 I had the following car travel costs: 3 trips from Culcairn to Albury for Dr Sowden 3 x 100 km per round trip = 300 km @ $0.75 per km $225.00 1 trip from Culcain to Henty to fax Dr Sowden's Report to the Firearms Registry 1 x 33 km per round trip - 33 km @ $0.75 per km $24.75 1 trip from Culcairn to Albury for Dr Todhunter 1 x 100 km round trip = 100km @ $0.7 5 per km $75.00 1 trip from Culcairm to Henty for Dr Todhunter I x 33 km per round trip = 33km @ $0.7 5 per km $24.75 1 trip from Culcairn to Melbourne for Dr Lee 1 x 798 km round trip = 798km @ $0.7 5 per km $598.50 3 trips from Culcairn to Albury to see solicitors 3 x 100 km per round trip = 300 km @ $0.75 per km $225.00 1 trip from Culcairn to Albury for Tribunal hearing 1 x 100 km round trip =100km @ $0.7 5 per km $75.00 Total: $998.25 It cost me $75.00 to file an application to review the decision with the Tribunal. My total costs are: Solicitors Costs$550.00 Medical Reports$1,468.85 Travel$998.25 Tribunal$75.00 Total: $3,092.10 12The Applicant submits that all the costs that he incurred were a direct result of false information given to the Police by the Mental Health Access Line and the Firearms Registry's failure to act on this matter appropriately. He contends that it is fair and reasonable to order the Respondent to pay those costs in their entirety. 13The Applicant also stated that he receives a Centrelink disability pension and therefore the sum of $3,092.10 represents a significant drain on his resources. The Respondent's submissions 14Mr Zoppo made submissions on behalf of the Respondent with respect to whether an order should be made for costs. He contends that the Tribunal's power to award costs is limited to costs incurred in the conduct of proceedings and not costs incurred before the commencement of proceedings such as those incurred following the suspension/revocation or internal review. 15Mr Zoppo summarised the background to the determination in the following terms: The Commissioner received information from the Mental Health Access line on 21 March 2012 under section 79 of the Firearms Act. Under that section such a notification may be made when the health professional is of the view that a person may pose a threat to the public. The mental health professional at the Mental Health Access line that received the call was clearly so concerned about what she had been told by the Applicant that she immediately rang the police and sent the Police the written notification. ... This information received by the Commissioner included information that the Applicant was thinking of harming himself and his doctor. It was clear that the Applicant was distressed when making the phone call and the action taken by the Mental Health Access line officer and the Police was appropriate in the circumstances especially bearing in mind the fact that the Applicant had access to firearms. The Commissioner acting on that information suspended the licence and sought information from the Applicant to address its concerns about the mental state of the Applicant. 16The Respondent concedes that the report from Dr Sowden was not considered by the Registry in its decision to revoke the Applicant's firearms licence. However, Mr Zoppo submitted that had it been considered, it is unlikely that the decision maker would have arrived at a different decision. Dr Sowden's report, along with the report of Dr Todhunter, was considered at the Internal Review stage. He further submitted that it was clear that Dr Sowden had listened to the CD recording of the Applicant's conversation with the Mental Health Access Line. 17Mr Zoppo submitted that on the basis of the material available, including Dr Sowden's report and the report of Dr Todhunter, the Internal Reviewer was not satisfied that there was virtually no risk if the Applicant were to possess firearms. 18In Mr Zoppo's submission, even if the Respondent reviewed the recording of the phone call and arrived at a conclusion that the Applicant had not made a threat to harm himself or his local doctor, the Internal Reviewer and the Respondent in the proceedings had the notification of a mental health professional, a notification from the Applicant's treating doctor and the report from Dr Sowden, who had undertaken a detailed assessment of the Applicant and had arrived at a conclusion that the licence of the Applicant could only be returned if certain preconditions be met. 19In that regard, Dr Sowden stated in her report: The primary concern however regarding the reinstatement of Mr George's gun licence and the return of his guns appears to relate to his adverse response to his medical condition. I am of the opinion that consideration of the reinstatement of Mr George's gun license should depend on information gained from a pain specialist in relation to Mr George's pain management strategies particularly in relation to his medication, his compliance with medication, and his ability to cope in the event he does not take his medication. Further the impact of medication on his capacity to manage firearms also needs to be taken into consideration. ... I am of the opinion that once the issue pertaining to Mr George's pain management have been resolved, consideration could be given to re-instating Mr George's gun licence and returning his guns to him. ... 20Mr Zoppo was critical of the brevity of the report of Dr Todhunter and also asserted that the failure to provide the Respondent with a copy of the recording of the Applicant's conversation with the Mental Health Access Line until shortly before the hearing. The Respondent contends that the recording was not provided to the Respondent at any stage during its consideration even though the Applicant had a copy of the recording and he believed the recording would prove that the no threats were made. 21The Respondent contends that the proceedings were conducted promptly and fairly and that there was no conduct during the hearing of the proceedings that would require the Tribunal to move from the ordinary rule and direct the Respondent to pay the costs of the Applicant. 22However, it is submitted that, should the Tribunal be of a view that an order for costs should be made, any such order should be limited to costs that arise from the conduct of the proceedings and not the costs incurred from the Respondent's consideration of the suspension/revocation/internal review, as the power to award costs under section 88 of the ADT Act is limited to costs that relate to the proceedings. Consideration 23As noted above, section 88(4) of the ADT Act provides that 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. 24The question arises at to whether costs incurred while during the suspension/revocation/internal review stage of the process fall within the scope of a section 88(4)(b). 25A related issue was examined in detail in a case in the Revenue Division of the Tribunal: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21 ("B & L Linings") at paragraph [77] and following. The Tribunal decided that a key ingredient of a "proceeding" was "the presence of an independent person who reaches a decision after considering matters put to him or her by contending parties in accordance with some recognised (though not necessarily formal) procedure: B & L Linings at paragraph [94]. 26In Shandil v Animal Welfare League NSW [2013] NSWADT 15, Deputy President Hennessy considered that issue in relation to a case in the Tribunal's Equal Opportunity Division. The Deputy president commented on the B & L Linings decision and observed at paragraph [14] and following: The Tribunal mentioned at [98] that an inquiry conducted by the Anti-Discrimination Board was a "possible instance" of a "proceeding" under s 88(4). That remark arose from a submission that conciliation proceedings that take place under the AD Act may constitute "proceedings" because they are formal proceedings of a court-like character, in which the parties involved may be required to attend and give evidence. There is no need to make a finding as to whether a conciliation conference under the AD Act falls within the definition of a "proceeding" because there was no conciliation conference under the AD Act in this case. In relation to decisions made by the President, such as a decision to decline a complaint, I accept that the President of the ADB is an independent person who makes that decision after considering matters put to him by contending parties. Unlike the Tribunal's merits reviews jurisdiction, the decision maker is not a party to proceedings in the Tribunal. Although the President of the ADB is an independent person, the procedure adopted to determine whether a complaint should be declined is not a recognised or established procedure. My understanding is that the procedure adopted by the President of the ADB is for parties to write to him setting out their point of view and, if relevant, enclosing documents. No written or oral evidence is formally given nor are written or oral submissions formally made. There is no provision for legal representation. While these are not essential requirements of a "proceeding", the level of informality and the lack of statutory detail as to the content of those procedures, suggest that this case falls outside the test proposed in B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21. See also, Raethel v Director-General, Department of Education and Training [2000] NSWADT 56 at [40] to [54]. 27The decision in Raethel v Director-General, Department of Education and Training related to a General Division matter. In that matter the Tribunal's President rejected an applicant's claim for costs incurred by her before she filed her application in the Tribunal. The President stated: Meaning of 'Proceedings' and 'Proceedings giving rise to the Application' 37 Ordinarily the discretion to award costs is confined to costs incurred in relation to the proceeding before the court or tribunal. But in the Tribunal Act there is an extended definition of 'proceedings.' Section 88(4) provides: "(4) In this section, costs includes: (a) costs of or incidental to proceedings in the Tribunal, and (b) costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application." 38 The main thrust of the applicant's submission is to argue that the Tribunal is entitled to cover in a costs order not merely the costs of the proceedings before the Tribunal but also the cost of the 'proceedings' that occurred between the applicant and the agency at agency level. 39 Before dealing with this point, the applicant considered whether the references to 'application' in s 88(4)(b) covered both the application for review before the Tribunal and the antecedent application to the agency. The Tribunal's view is that it is clear, as counsel for the applicant ultimately acknowledged in the written submissions, that the term 'application' refers to an application to the Tribunal. The term is a defined one (see s 4) and has the meaning ascribed to it in s 142. Section 142 provides that the term refers to any form of initiating process in both the original and review jurisdictions of the Tribunal, whatever may be the customary term (for example, complaint) used in particular categories of proceedings. 40 Nonetheless the applicant draws attention to that part of s 88(4)(b) which refers to the possibility that a costs order may relate to 'the proceedings giving rise to the application' as well as those 'incidental' to the application. 41 Counsel argues that 'the proceedings giving rise to the application' are 'those events and circumstances that bring about or cause the application.' He refers to a dictionary definition from the New Shorter Oxford Dictionary (1993) dealing with the use of the term 'rise' in the context of the expression 'give rise to' which includes as a meaning, 'cause'. In this instance, he argues, the applicant's original application to the agency and the refusal constitute the 'proceedings giving rise to the application'; therefore it is open to the Tribunal to award costs in respect of those 'proceedings' if special circumstances were established. 42 He submitted: "It follows that the Tribunal, when an application is made for an award of costs in proceedings before it, is not restricted to a consideration of the matters a Court considers when it makes an order for costs in litigation. Since the Tribunal may award costs of the proceedings giving rise to the application to the Tribunal, a party is entitled to request the Tribunal to consider those matters for the purpose of determining whether or not the Tribunal is satisfied that there are special circumstances warranting an award of costs." 43 As to what is meant by 'proceedings giving rise to the application', the agency in reply submits that the term carries the connotation of a formal legal proceeding. 44 Counsel for the agency refers to the construction placed on the use of the term in the Service and Execution of Process Act 1901 by the High Court in Cheyney v Spooner (1929) 41 CLR 532. There Isaacs and Gavan Duffy JJ said at 536-7, "A 'proceeding' used broadly as it is used in [section 16 of the Act under consideration] ..., is merely some method permitted by law for moving a Court or judicial officer to some authorised act, or some act of the Court or judicial officer." A similar connotation was attached to the meaning of proceedings in a family law case in England dealing with the difference between a divorce obtained by a solemn religious act and recognised by the relevant religion and one obtained through a secular court: Chaudhary v Chaudhary [1984] 3 All ER 1017 distinguishing Quazi v Quazi [1980] AC 744. 45 In Quazi Lord Ormond at 788 commented that the terms 'proceeding' and 'proceedings' are so 'general and imprecise that the dictionary definitions do not carry the matter any further.' 46 The agency nonetheless submits that the core meaning of 'proceedings' has to do with formal proceedings of a court-like character. Applying this approach to the context of administrative decision-making it gives an example of a prior administrative process which is sufficiently court-like to be covered. The example involves a formal procedure, one governed by detailed statutory provisions, the outcome of which may give rise to significant adverse consequences for the reputation and standing of the individual. The example is that of the operation of the Veterinary Surgeons Investigating Committee in the context of veterinary surgeons discipline. In that instance the Committee constituted by statute (the Veterinary Surgeons Act 1986, s 24) must undertake formal investigations including a form of hearing prior to formulating charges of professional misconduct. Those charges are then heard by the Tribunal and sanctions include deregistration. 47 The agency submits that an individual's FOI application to an agency or Minister does not have the formal indicia necessary to constitute a 'proceeding' in that sense. 48 While accepting the reservations expressed by Lord Ormond in Quazi, the agency's submission does gain support from the definition contained in the Macquarie Dictionary (1st ed 1981) where the meaning attributed to 'proceeding' as used in the law is 'a. the instituting or carrying on of an action at law' or 'b. a legal step or measure: to institute proceedings against a person.' 49 In approaching the question of the meaning of 'proceedings giving rise to the application', the Tribunal considers it useful to look to the object of s 88. The object is to set a rule as to 'costs'. That expression (as already noted) refers to costs connected with obtaining legal representation. With that as background, the term 'proceedings' when used to refer to events antecedent to the proceedings in the Tribunal should be construed as referring to procedures of a kind where legal representation might be reasonably likely to play a part. 50 That approach lends support to the interpretation suggested by counsel for the agency, that the term 'proceedings' refers to a process with characteristics of strict formality. The example he gives is, I consider, a good one. 51 In the disciplinary context, the proceedings that occur at the prior stage to any action being taken in a public tribunal are usually affected by a high degree of formality, and are acknowledged to have significant implications for the member of the profession under investigation and inquiry. A formal procedural framework is laid down by statute and subordinate instruments. Principles of natural justice apply. Legal representation would be permitted unless unequivocally ousted by statute. 52 If a broader interpretation of the kind advocated by the applicant were to be attached to 'proceedings' then s 88(4)(b) would cover any decision-making procedure which is undertaken by an agency before a matter reaches the Tribunal. Counsel for the applicant sought to confine his submission to the context of the FOI Act, but it is difficult to see what distinction could reasonably be invoked to prevent the logic which supports his position in that regard being extended to all agency procedures that involve the making of decisions subject to review by the Tribunal. The objectives of the FOI Act and those of the Tribunal Act, as they seek to impact on government administration, are similar. 53 I am satisfied that the expression 'proceedings giving rise to the application' does not cover the entire administrative process that occurs in agencies leading to the making of decisions that are capable of being the subject of an application for review to the Tribunal. 54 I consider that a narrower view of the expression 'proceedings giving rise to the application' along the lines that I have indicated is more appropriate. It is an expression that, at most, embraces a process of such formality that considerations of natural justice would permit a person to seek and be granted legal representation. In its merits review work the Tribunal has encountered instances of that kind, typically in relation to regulation of occupations or professional discipline. 28In my view, the narrower construction of section 88(4) is appropriate. The considerations in Raethel and Shandil are comparable to those relevant to this matter and if a similar approach is adopted the inevitable conclusion is that costs incurred during the suspension/revocation/internal review stage of the process fall outside the scope of a section 88(4)(b). 29It follows that the Applicant cannot recover the costs 'of and incidental to' the administrative processes that preceded his application in the Tribunal. These costs fall outside the scope of the Tribunal's power to award costs under section 88 of the ADT Act. 30However, as noted in B & L Linings, It does not follow that events occurring before the lodgement of the Appellants' application in the Tribunal are of no significance. The Tribunal considered that such events might well have a bearing on the question of costs for at least two reasons. It stated: 112 In the first place, it may be open to the Appellants to argue as follows: (a) the process of lodging written Objections with the Commissioner required them to prepare substantial documentation; (b) after disallowance of the Objections, they made significant use of this documentation in applying to the Tribunal; (c) the costs of preparing this documentation should accordingly be viewed as 'costs incidental to' (if not also 'costs of') their application to the Tribunal. An argument along these lines receives support, at the level of general principle, from a number of cases establishing that if costs incurred before action were 'necessary or proper for the attainment of justice', they may be included in an award of costs 'of an incidental to' the relevant proceedings: see for example Societe Pecheries Ostaises v Merchants Marine Company [1929] 1 KB 750; In re Gibson's Settlement Trusts, Mellors v Gibson [1981] 2 WLR 1; Comcare v Labathas (1995) 61 FCR 149; [1995] FCA 1702. 113 Secondly, in so far as aspects of the Commissioner's conduct during this pre-litigation phase enlarged unnecessarily the scope of the case that, in the reasonably held opinion of the Appellants, they were compelled to bring to the Tribunal in order to vindicate their rights, they may argue that this conduct should be taken into account by us in determining the question of 'fairness' under section 88(1A) of the ADT Act. 31While I generally agree with the Respondent that there was no conduct during the hearing of the proceedings that fell below the standard of a 'model litigant', it is my view that the Respondent's conduct during the pre-litigation phase was such that the Applicant was compelled to commence the proceedings in the Tribunal in order to vindicate his rights. During those stages he had to obtain substantial documentation that then played a significant role in the application to the Tribunal. 32A chronology of the events leading to the application to the Tribunal demonstrates how the Respondent's conduct during the pre-litigation phase compelled the Applicant to commence the proceedings. 33The determination to suspend the Applicant's licence was taken on 22 March 2012. This followed receipt of information from the Mental Health Access Line alleging that he had made threats of harming himself and his doctor. 34The Applicant was taken into custody on 21 March 2012. At that time the Applicant denied the allegation. The Respondent therefore knew from 21 March 2012 that the Applicant disputed the information that gave rise to the suspension. 35Understandably, the Respondent suspended the Applicant's licence and seized his firearms. The fact that this was done without checking the accuracy of the allegations attracts no criticism. It was the prudent action to take in the circumstances. The suspension provided the Respondent with the opportunity to clarify the situation. On 22 March 2012 the Applicant was requested to provide a medical assessment to allow that to occur. 36In response to the Respondent's request the Applicant consulted Dr Sowden and she prepared the requested assessment. The Respondent received Dr Sowden's report on 18 June 2012. 37Notwithstanding the receipt of Dr Sowden's report, it was not considered when the determination to revoke the Applicant's licence was taken on 12 July 2012. 38The determining officer did note that the Applicant denied the allegations but apparently took no steps to assess the accuracy of the allegations. 39The Respondent has criticised the Applicant for his failure to provide it with the recording of the conversation in which it is alleged that the Applicant made threats. However, I note that at the time of the revocation decision the Respondent was in possession of both Dr Sowden's report, the knowledge that the Applicant had an unblemished firearms record for some 22 years and the knowledge that the Applicant denied the allegations. 40In those circumstances, given that the Respondent was asserting a change in the Applicant's suitability to hold a licence, it is reasonable to expect that the determining officer would take some steps to investigate the situation and to substantiate the accuracy of the allegations. 41It was open to the Respondent to obtain a copy of the recording of the conversation in which it is alleged that the Applicant made threats and to check the accuracy of the allegations. At that stage the Applicant's licence had been suspended and firearms seized so there was no risk to the public from the Applicant's access to firearms. 42The revocation of the licence was a significant step and in my view should not have been taken on the basis of an unsubstantiated allegation that was disputed. It was not a necessary step at that stage given that a suspension was in place. 43The determination to revoke the Applicant's licence meant that the Applicant was compelled to enter the internal review process in order to vindicate his rights. 44As noted above, Dr Sowden's report noted that "consideration of the reinstatement of Mr George's gun license should depend on information gained from a pain specialist in relation to Mr George's pain management strategies particularly in relation to his medication, his compliance with medication, and his ability to cope in the event he does not take his medication. Further the impact of medication on his capacity to manage firearms also needs to be taken into consideration." 45Dr Sowden was clearly of the view that consideration could be given to re-instating the Applicant's gun licence and returning his guns to him once the issue pertaining to his pain management were resolved. 46The Applicant addressed Dr Sowden's concerns by consulting Dr Brett Todhunter, a specialist in anaesthesia and pain medicine. Dr Todhunter provided a report that was given to the Respondent on 24 July 2012. In regard to the Applicant's health Dr Todhunter's report stated: His state of mind in my opinion was stable and his responses to questions rational and logical and he did not exhibit any violent or aggressive behaviour and seemed to be quite accepting of my advice regarding his pain from a general point of view. His pain has been better controlled since he was commenced on a Norspan patch which is an opiate drug Buprenorphine absorbed through the skin. In terms of having chronic pain I do not believe that there is any contraindication to him possessing a gun licence in that in retrospect there does not appear to have been any history of violence and his reaction when talking to the person on the telephone to whom he was directed when he was seeking help for l pain suggests he revisits the hospital and see the Doctor who had just refused to give him any pain medication hence his frustration and at no time did he actually suggest he would cause anybody any harm. 47In my view, the Respondent was at that stage in possession of a clear statement from a pain specialist who was aware of the history of the matter. Dr Todhunter noted that Dr Sowden's report indicated that the Applicant does not have any diagnosable psychological condition that contraindicate him having a gun licence. Dr Todhunter then provided the opinion that, in terms of having chronic pain, he did not believe that there was any contraindication to the Applicant possessing a gun licence. 48Mr Zoppo was critical of the brevity of Dr Todhunter's report. I do not agree with that submission. In my view, Dr Todhunter's report was sufficient to satisfy any concerns that the Respondent might have had. 49Nevertheless, the internal reviewer could have sought further information if it was considered necessary and thereby could have avoided the need for the application to the Tribunal. 50In regard to the fact that the Applicant disputed the allegation that he had made threats, the internal reviewer stated: As you failed to provide a copy of that CD for consideration in this internal review, I cannot be satisfied that both police records and the notification to the Registry are incorrect, and you made no threats to harm any person. 51The revocation of the licence was affirmed without any investigation of the unsubstantiated allegation even though the reviewer knew that it was disputed. It was done in light of comments by both Dr Sowden and Dr Todhunter, which cast doubts on the accuracy of the allegations. 52The determination to affirm the revocation of the Applicant's licence was a significant step and in my view should not have been taken on the basis of an unsubstantiated allegation that was disputed. The determination meant that the Applicant was compelled to make the application to the Tribunal in order to vindicate his rights. 53In my view, these circumstances can be taken into account in determining the question of 'fairness' under section 88(1A) of the ADT Act. 54It is not in dispute that the Applicant made significant use of the Reports in his application to the Tribunal. In my view, he is entitled to an order that the Respondent pay the costs that he has incurred of or incidental to proceedings in the Tribunal. In regard I consider that costs of the documentation and other expenses that he has outlined can be regarded as falling within the scope of section 88(4)(a) of the ADT Act. 55In my view, the amount sought is reasonable and should be paid in full. Orders 1. The Respondent is to pay to the Applicant the amount of $3,092.10 as costs of or incidental to proceedings in the Tribunal. 2. This amount is to be paid within 28 days of this order. ********** 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: 11 April 2013