Hermann v Commissioner of Police

CONSIDERATION

1. Section 60(1) of the CAT Act establishes that the default position is that each party is to pay its own costs of proceedings before the Tribunal. Nonetheless, by s 60(2), the Tribunal possesses a discretionary power to depart from that general rule and may award costs but only if it is satisfied that there are special circumstances warranting an award of costs. In Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48 at [9], Senior Member Titterton said: The meaning of "special circumstances" can be summarised simply: for special circumstances to be established, it suffices that the circumstances are out of the ordinary; they do not have to be extraordinary or exceptional.
2. It does not follow though that where one or more of the factors in s 60(3) are made out, that a cost order should necessarily be made: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81]. The Tribunal's exercise of the discretion provided in s 60(2) of the CAT Act involves a two stage structured process, namely a consideration of whether or not the Tribunal is satisfied that there are special circumstances in relation to the question of costs, and, if so, whether those special circumstances warrant departing from the general rule and making an award of costs: Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 93 at [23].
3. When exercising that power the Tribunal may have regard to the matters expressly identified by s 60(3)(a) to (f) and, by s 60(3)(g), to "any other matter that the Tribunal considers relevant". I therefore turned to consider each of those matters in order to determine if there are special circumstances.

Did the Respondent conduct the proceedings in a way that unnecessarily disadvantaged the Applicant in the proceedings?: s 60(3)(a)

1. The Applicant did not specifically raise this as a basis on which special circumstances apply, although was critical of the way the Respondent conducted the proceedings. I observe that the Applicant was represented by Counsel in the proceedings.

Was the Respondent responsible for prolonging unreasonably the time taken to complete the proceedings?: s 60(3)(b)

1. The Applicant contended that unnecessary costs in the matter were incurred because the Respondent caused the matter to go into a second hearing day. In addition to direct legal costs, it was also submitted that the Applicant had incurred the additional expense of the "expert witness" Mr Rowe having to attend for a second day as he was unable to be reached on the first day of the hearing.
2. It was also contended that the Respondent was responsible for unreasonably prolonging the proceedings by having engaged in protracted and unnecessary cross examination of the Applicant and Mr Rowe. It was submitted that the matter could have been "resolved" by the tender of all the evidence (including the extensive cross examination of the Applicant at the stay hearing), followed by brief cross examination of the police witnesses as occurred. I observe that at the hearing before me the Applicant's counsel took the opportunity to lead evidence from the Applicant, which, in itself, gave rise to cross examination. In this submission the Applicant made no comment about Mr Rowe's evidence.
3. The Applicant's counsel referred to the "numerous" occasions he objected to parts of the cross examination, sometimes successfully, and to occasions where I intervened because I considered the cross-examination to be repetitive or not proper matters for cross examination. The Respondent submitted that the cross examination of the Applicant was necessary, bearing in mind the evidence and the circumstances of the matter. Further, the Applicant had provided some different versions of what had transpired during the incident. For example, he gave a different account to attending police and in the stay hearing as to where he was he first saw Mr A; at the stay hearing and before me he gave different accounts of what he said when he first saw Mr A; at the stay hearing and before me he gave a different account of what then transpired.
4. The Respondent appeared to concede that there may have been some instances of "recapping" of the Applicant's cross examination at the resumed hearing but denied that this unreasonably prolonged the hearing of the matter. After the Applicant's opening, on the first day, as agreed between the parties, evidence was first given by the Respondent's witnesses, who were subject to cross examination by the Applicant's counsel. It was unfortunate that the Applicant's evidence could not be concluded on the first day, and also unfortunate that a date could not be found to the convenience of all parties, for over 2 months. Neither party, it appeared, requested a transcript. I do not consider that the "recapping" unreasonably prolonged the hearing such that written submissions were required.
5. In relation to Mr Rowe, the Respondent said that, before Mr Rowe gave evidence, the issues that it had with his evidence, namely adducing "expert" evidence of the application of the laws of NSW, had been raised with the Applicant's counsel. The Applicant's submissions in relation to Mr Rowe's evidence referred to the unusual nature of the intertwined issues of fact and law. It was helpful to me that Mr Rowe was cross examined so as I could better understand what it was the Applicant was contending though the evidence of Mr Rowe - his oral evidence, was somewhat disjointed, as was his written statement and I was assisted by the Respondent's testing of Mr Rowe. In any event, the Respondent was entitled to challenge Mr Rowe on his evidence. Ultimately, I rejected Mr Rowe's "expert" evidence in relation to the law. The evidence of Mr Rowe about the Applicant's to use a firearm in self-defence, and contrary to the terms of his licence and his employer's licence occupied a large portion of the evidence of Mr Rowe; I completely rejected some of Mr Rowe's evidence. I do not consider that the cross examination of Mr Rowe was unnecessary and it did not prolong the hearing of the matter.
6. It was also submitted on the Applicant's behalf that the prolonged proceedings necessitated written submissions as there remained insufficient time to hear oral submissions. In relation to this contention, I consider that, as the Tribunal is assisted by parties' written submissions, irrespective of whether time permits, that this is not a compelling contention.

What were 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?: s 60(3)c)

1. It was contended on the Applicant's behalf that aspects of the Respondent's contentions had no tenable basis in fact or law. In particular, the Applicant submitted that the Respondent had changed its position in that the attending police, essentially had no issue with the Applicant's conduct whereas a different view was taken by licensing police and that the basis on which the licence was revoked was contrary to the position arrived at by investigating police. It was submitted that my view was precisely what the attending police had formally recorded in their report. I do not think this is an entirely accurate summary of my findings. The change in the position of the Police was known to the Applicant well in advance of the hearing and the Applicant had the opportunity to cross examine the officers. I do not accept that the change in the Respondent's position was such as to make its position one that has no tenable basis in fact or law.
2. In the decision I identified the issues for determination:

• whether the Applicant acted contrary to the authority of the licence,
• whether the Applicant acted contrary to the conditions of his employer's licence, and
• whether the Tribunal should exercise its discretion not to revoke the licence in view of the breaches of conditions.

1. The relative strengths of the claims made by each of the parties in respect of these issues are set out below.

Whether the Applicant acted contrary to the authority of his firearms licence

1. The Respondent's position was that the licence permitted the Applicant to protect approved types of property and did not authorise the use of firearms for all types of security activities outside the area identified in the licence, nor allowed the use of a firearm to protect the School's students. The Applicant claimed that he had not acted contrary to the authority of the licence as he could use his firearm to defend people. Further, he claimed that using the firearm for personal protection contrary to s12 of the Firearms Act is in connection with a genuine reason allowed under that Act. I found that, contrary to the Applicant's claim, he did not have authority to use his firearm other than in accordance with his licence: Hermann at [32]. It was further argued by the Applicant that once a firearm licence is issued, the person can subsequently use the firearm in a manner inconsistent with the 'genuine reason' for the person possessing the firearm, when, as here, the Applicant believed that he was entitled to use it. I rejected the Applicant's contention that the genuine purpose test refers only to the purpose and intention for applying for the licence in advance, not the prescribing of conduct into the future: Hermann at [28].
2. My conclusion on this issue does not support a finding that the Respondent 's position had no tenable basis in fact or law.

Whether the Applicant acted contrary to the conditions of his employer's licence?

1. It was submitted on the Applicant's behalf that the Respondent's contention that 'static' guarding did not allow any movement at all within a site had no tenable basis in fact or law. The Applicant observed that, at [40] I found it was not necessary for me to decide this issue for the purpose of the decision. The Applicant, however, did not provide the context of this finding, namely that I had found the Applicant had left his static post to enter the bushland. I also noted at [40] that it would not in any event have been "practical" for the Applicant to return the firearm to the storage location before entering the bushland area.
2. The Applicant's employer's licence restricted the use of firearms for 'static guarding, uniformed and strictly for the protection of cash & valuables only and not for any other purposes'. The Applicant claimed that this condition permitted him to walk from one static position to another and checking buildings. The Applicant further claimed that it would be unreasonable for a security operative to remain in a static post where there was a terrorism incident. It was submitted that the Respondent had contended that the Applicant was "engaging in bodyguard services", and that this contention was "baseless, misconceived and doomed to fail" and that this was an "irrelevant and speculative matter" which consumed significant time, and, in any event, was not squarely put to either the Applicant or Mr Krug. This, in my view does not accurately reflect the Respondent's submission in relation to 'static guarding'; it was the Applicant who gave evidence about the need to move about the premises and to protect the children. It also led, it was submitted by the Applicant, to Mr Krug having to produce an affidavit in response. Mr Krug's evidence, however, was, in my view, broader than in relation to this particular issue, and also addressed issues I had raised during the first day of the hearing. Mr Krug's evidence, and the resultant cross examination was helpful in understanding the way the School's security was managed.
3. I largely agreed with the Respondent's claim and that the Applicant's approach does not give any work for the word "static" in the condition: Hermann at [37]. Further, I found that the Applicant acted contrary to his licence conditions in leaving the site, and he had no authority to take the firearm into the reserve in order to investigate Mr A's activities : Hermann at [40] - [41].
4. The Applicant's position was that, notwithstanding that the authorised use of the weapon was for the purposes of protecting property, cash and valuables, he could use his firearm in circumstances that he regarded as posing a direct or perceived threat to the children at the School. The Applicant sought to rely on s 418 of the Crimes Act 1900, which provides for the defence of self-defence, to support this position. I found that to be irrelevant in the circumstances, and that the Applicant contravened the condition of his employer's licence: Hermann [47] - [49].
5. I reject the Applicant's claim that the Respondent's position in relation to this issue was untenable in fact and law.

Should the Tribunal exercise its discretion not to revoke the Applicant's firearms licence in view of the breaches of conditions?

1. It was the Applicant's claim that the Tribunal should adopt the initial views of the Senior Constable Zahra, that the Applicant had acted properly in the circumstances. It was the Respondent's claim that the conduct of the Applicant in drawing his firearm was not justified or reasonable in the circumstances. Although I had found there to be contraventions of the Act as the Respondent had submitted, after consideration of all the evidence, including Mr A's actions, the Applicant's response to those actions, and the high alert status of the School, I exercised the Tribunal's discretion to find that there was justification for the Applicant to draw his firearm and was satisfied that the reinstatement of the Applicant's firearms licence was in the public interest and virtually without risk. In doing so, I came to a view that did not accord precisely with that put forward by either party. It was submitted on the Applicant's behalf that my findings "comprehensively rejected" the Respondent's submissions, but that is a clearly incorrect.
2. I reject the Applicant's claim that the Respondent's position in relation to this issue was untenable in fact and law.

The nature and complexity of the proceedings: s 60(3)(d)

1. Although the Applicant initially did not raise the complexity of the matter in his submissions, in his submission in reply it was conceded that the question of whether a security guard is in breach of their licence if they act in self- defence of another is a complex one that was appropriately the subject of contention and submissions. (my emphasis). I agree with this analysis.
2. Further, it was clearly challenging, having regard to the findings in relation to breaches, to then come to a view, whereby, nonetheless, I considered it appropriate to exercise the Tribunal's discretion not to revoke the Applicant's licence: see lengthy discussion in Hermann at [50] - [68].
3. Similarly, as discussed above, the final decision did not merely adopt the submissions of one or other of the parties. That nuanced decision would not have been reached if the matter were as straightforward as the Applicant's overall submissions would suggest.

Are there any other relevant matters?: s 60(3)(g)

1. One of the Tribunal's "guiding principle" in s 36(1) of the CAT Act is that the Tribunal is required to facilitate, inter alia, the low cost resolution of the issues in the proceedings. The Applicant submitted that, as the matter had been privately funded, this was a relevant consideration. There was little evidence about the Applicant's financial position, other than that his livelihood would be affected if his licence were revoked, but that has not come about. It is possible that his income was affected during the period between the suspension of his firearms licence on 3 May 2019 and the Tribunal's decision on 20 May 2020 during which time, presumably, he was redeployed as he could not longer carry a firearm. I observe that he continued to be employed by his employer. I am not satisfied that there is sufficient evidence that the Applicant has endured a financial loss to amount to special circumstances.

Conclusion

1. Taking all the above considerations together I am not satisfied that there are special circumstances which take this case out of the ordinary or usual case, and warrant a departure from the general principle that each party bear its own costs an order for costs .

Orders 1. The application for costs is dismissed, and each party to the proceedings is to pay its own costs .

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: 18 August 2020