EEN v Commissioner of Police

Application for costs

1. Under s 50(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), the Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
2. The parties agreed that the question of costs can be determined on the papers. The Tribunal is satisfied that the issue of costs can be adequately determined in the absence of the parties by considering the parties' written submissions. The parties would be put to unnecessary expense if a hearing on costs were held. An order under s 50(2) of the NCAT Act has accordingly been made.
3. The general rule in relation to costs in the Tribunal is that s 60(1) of the NCAT Act provides that each party is to bear its own costs. Section 60(2) provides the Tribunal with discretion to award costs if it is satisfied that there are special circumstances warranting such an order. In deciding whether there are special circumstances, the Tribunal may have regard to the factors in s 60(3), which reads as follows: (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to 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) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
4. Special circumstances are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]; Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].
5. If satisfied that there are special circumstances, the Tribunal must further be satisfied that they are circumstances "warranting an award of costs": Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103. The exercise of the discretion requires the Tribunal "to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the general rule that each party bear their own costs": BPU v New South Wales Trustee and Guardian (Costs) [2016] NSWCATAP 87at [9].
6. EEN submits that there are special circumstances, relying on s 60(3)(c), (d), (e) and (f) of the NCAT Act, on the grounds that: 1. The Tribunal found that the Commissioner's case on all three grounds for the licence revocation was baseless on the evidence submitted during initial submissions and on cross examination of the two persons who were required to give evidence on 19 December 2019; 2. The matter was complex as it was entirely associated with complex medical issues; detailed medical specialist reports provided during the internal review process were largely overlooked or disregarded; and the Commissioner did not avail himself of the authority provided to seek further clarification from the three medical specialists if that was required; and the evidence of his treating psychiatrist supported the earlier claims; 3. The fact that the Tribunal found that the basis for the Commissioner's case was unfounded on the three grounds was in itself evidence that the case was frivolous, and the fact that the internal review process wilfully disregarded compelling expert medical opinion and gave more weight to hearsay and unsubstantiated evidence of the NSW Police Force was further evidence that the case was misconceived, and the bias evident from the internal review process could support a claim that the matter was vexatious; 4. The Commissioner did not follow up his request made at the hearing on 19 December 2019 that clarification be sought of the missing COPS reports of NSW Police attendance at his house on two separate occasions, and did not provide any evidence to the Tribunal that he had attempted to do so.
7. The Commissioner submits that there are no special circumstances justifying an order for costs, either partially or wholly. The Commissioner responded to the submissions based on s 60(3)(c), (d), (e) and (f) of the NCAT Act as follows: 1. The Commissioner agrees that his case was largely premised on three grounds, the source of those grounds being established under the legislation, and there was no subjective or biased motive. The Tribunal did not find that the Commissioner's case was baseless. The relative strengths of the Commissioner's case were related to the various documented incidents and concerns based on the evidence, and the Tribunal accepted that EEN had a longstanding mental health condition (at [37] and [85]), and had at times consumed alcohol in significant quantities (at [64]); 2. The Commissioner's conduct did not complicate or adversely affect the nature of the proceedings, nor did it cause disadvantage to EEN. Any added complexity can be attributed to the applicant's conduct in opposing access to the documents produced under summonses. The nature of the proceedings including the medical evidence relied on by the applicant and tested by the respondent did not amount to circumstances which were out of the ordinary. The second day of hearing was for the purpose of closing submissions, and not to further test the evidence of the witnesses; 3. The Tribunal did not find that the Commissioner's case was unfounded, and the claim that the Commissioner's case was frivolous, vexatious or otherwise misconceived cannot be made out. Even if the applicant's claims about the internal review process were correct the costs incurred in that stage would be beyond the scope of s 60(3)(3) of the NCAT Act; and 4. The Commissioner submits that inquiries were made relating to the claimed missing COPS reports in the s 58 documents; and in any event the COPS reports were not considered by the Tribunal to be relevant to the real issues in the proceedings.
8. The Commissioner submits that the claim by EEN for recovery of costs for the attendance of his expert witness to give evidence is unfounded, as there is nothing out of the ordinary in the respondent's request for the applicant's expert witness to be available for cross examination. The claim for travel and accommodation costs is also without merit, as the hearing on 26 February 2020 was for closing oral submissions only and the Tribunal's orders at the conclusion of the first day's hearing made provision for EEN to attend the further hearing by telephone.
9. In reply, EEN submits that his psychiatrist's report for the internal review had responded to the questions posed in the notice of revocation, and the reliance on the possibility of relapse or dependency on alcohol was not included; and that was a denial of procedural fairness at the internal review which meant he was left with no choice but to have the matter heard by the Tribunal. The Commissioner accepted that there was no evidence that EEN posed a risk to others or that he had ever threatened to misuse firearms or not kept proper control of his rifle, and so there was no evidence to support the grounds on which the Commissioner's case was based. The respondent did complicate the proceedings, as some of the material requested under summons was bound by a separate confidentiality agreement and argument was heard with the applicant agreeing to access with conditions attached. The work for which legal costs were claimed was carried out after the date of the initial application to the Tribunal and not at the internal review stage. His physical presence at the hearing for closing submissions on 26 February 2020 was consented to by the Commissioner and subsequently accepted by the Tribunal.

Discussion and findings

1. The task of the Tribunal in the administrative review proceedings was to determine, on the basis of the applicable law and the evidence before it, whether the decision to revoke the firearms licence was the correct and preferable decision: s 63 Administrative Decisions Review Act 1997. The Tribunal exercises the powers and discretions of the original decision maker, which required the Tribunal to address the requirements of the Firearms Act and the Regulation.
2. The issues for determination were whether it was in the public interest for the applicant to continue to hold a firearms licence; whether the applicant was a fit and proper person to hold a firearms licence; and whether there was reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of previous attempts to commit suicide or his intemperate habits or being of unsound mind. The fact that the Tribunal concluded that the evidence did not support a conclusion that any of the three grounds on which the Commissioner had relied were made out, and the applicant was ultimately successful in his challenge to the decision, did not mean that the Commissioner's case was hopeless, or that it had no tenable basis in fact or law.
3. The Commissioner accepted in submissions (as recorded at [58] of the reasons) that there was no evidence of any risk posed to the safety of others by EEN having access to a firearm, or that he had ever misused or threatened to misuse firearms, or that he had not kept proper control of his rifle before it was surrendered and the licence revoked. However, those matters were not the central issues in dispute. As noted at [73], the issue in considering the public interest criterion was whether the applicant was at risk of self harm, there being no dispute as to his history of depressive illness or that he was admitted to hospital with significant concerns for his mental state in 2014 and twice in 2018. In consideration of the criteria in s 11(4) of the Firearms Act, the relevant issue was whether the evidence established that EEN had ever attempted to commit suicide or cause a self-inflicted injury, or that by reason of his longstanding mental health condition, that had the potential to put public safety at risk if he had possession or use of a firearm. The making of appropriate concessions while contesting the relevant issues does not mean that the Commissioner's case had no tenable basis.
4. The medical evidence as to EEN's mental and physical health was extensive, and detailed. The matter was not clear cut, and required analysis of all the evidence as to the applicant's history of longstanding mental health issues and the physiological explanation for his behaviour leading to the hospital admissions in 2018. However, the nature of the proceedings, and the nature of the evidence, was not out of the ordinary in matters where an evaluation of potential risk to public safety, including the safety of the applicant, is required.
5. Summonses for production of documents were issued at the request of the Commissioner to EEN's general practitioner, NSW Ambulance, the local hospital, and Medicare. EEN was legally represented at the time, and his solicitor advised that he did not press an objection to those summonses and there was no objection to all parties having access to the documents produced. There was an objection to access to documents produced under summons by EEN's treating psychiatrist, on the basis that EEN had entered into a confidential settlement agreement with a third party, which restricted disclosure of the terms and performance of the settlement agreement, and a claim of professional confidential relationship privilege. That objection was heard, and orders were made to grant access (but not photocopy or uplift) to the Commissioner's legal representatives, and to require leave of the Tribunal for questions about specified conduct and disclosures. Those conditions were adhered to. The fact that the applicant opposed access to certain documents, and that that interlocutory process to determine whether access should be granted was required, is not an indication that either party acted inappropriately.
6. In support of his contention that he did not pose a risk to public safety, had not previously attempted to commit suicide, and was a fit and proper person to hold a firearms licence, EEN relied the evidence of his treating psychiatrist. His psychiatrist had provided reports to the respondent including for the internal review, and to the Tribunal in the administrative review proceedings. The Commissioner was entitled as a matter of procedural fairness to test the evidence of both the applicant and his psychiatrist in cross examination, and to require the attendance of the psychiatrist at the hearing for that purpose, without needing a summons. The Commissioner's legal representative was able to test the evidence of EEN's treating psychiatrist at the hearing on 19 December 2019. The fact that the Tribunal, for the reasons given at para [74] of the reasons, gave significant weight to the evidence of EEN's treating psychiatrist, and ultimately made findings as required by ss 11 and 24 of the Firearms Act and the Regulation relying on that evidence, and contrary to the submissions made by the Commissioner, does not mean that the proceedings were frivolous, vexatious or misconceived or lacking in substance.
7. EEN asserted that the s 58 documents did not include all COPS events reports of police visits to his home, and he gave evidence on 19 December 2019 as to his recollection of the particular events. His position was that those documents would establish that NSW Police had targeted him based on hearsay from others rather than assessing the situation themselves. The Commissioner's representative undertook to make inquiries but was unable to obtain any instructions on that issue on 19 December 2019. EEN submits that there was no follow up, and the failure by the Commissioner to seek clarification as requested by the Tribunal was a failure to comply with the duty imposed under s 36(3) of the NCAT Act. As noted by the Commissioner in his submissions on costs, at the adjourned hearing for closing submissions the issue of the asserted missing COPS reports was not pursued by the Tribunal. The Tribunal did not need to make any finding on that issue, the question of whether or not NSW Police had acted on unfounded hearsay not being relevant to determination of the issues arising for determination, namely, what was the correct and preferable decision on the material before the Tribunal.
8. The Tribunal is not satisfied that there are special circumstances as identified in s 60(3)(c), (d), (e) or (f) of the NCAT Act or as otherwise contended by the applicant, that would warrant an order for costs. The application for costs should be dismissed, so that each party to the proceedings is to pay its own costs.
9. The Tribunal notes that had there been a basis on which an order for costs would be warranted, the statement of account provided with the application confirms that the legal costs incurred by EEN relate to the period after the application for administrative review was lodged with the Tribunal, and not the preceding internal review application. As noted above, the attendance of EEN's treating psychiatrist for cross examination was required as a matter of procedural fairness, so that the Commissioner could test the evidence on which EEN was relying. Further, there was no requirement that EEN attend in person for the adjourned hearing for closing submissions, there having been discussion during the hearing on 19 December 2019 when it became clear that the matter could not conclude on that day, and a direction that the applicant could appear by telephone.

Orders

1. The orders of the Tribunal are: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing on the question of costs is dispensed with. 2. The application by the applicant for an order for costs is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 01 June 2020