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[2021] SACAT 65
General information, not legal advice.
SA Civil and Administrative Tribunal
2021-09-06
Original judgment source is linked above.
Hoare v Register of Firearms [2021] SACAT 65
The applicant sought a review of a decision of the Registrar of Firearms to cancel the applicant's firearms licence. The applicant's licence had already expired prior to the Registrar issuing a decision to cancel her licence. The Registrar therefore conceded that it had no power to suspend or cancel the applicant's licence where the licence had already expired and invited the applicant to withdraw the review proceedings in the Tribunal. The applicant advised that she accepted the Registrar's position and the Tribunal took the application as withdrawn.
The applicant applied for the Registrar to pay her legal costs of the review proceedings. The applicant argued that the respondent had discontinued the proceedings, that there was no merit in the proceedings, and that there is no good reason for the Tribunal not to make an order for costs.
Held, dismissing the proceedings and refusing the application for costs:
Administrative Review - Firearms Act 2015 - Suspend or cancel a licence, permit or registration
Administrative tribunals - Procedure - Statutory powers - Order for costs - Presumption that parties are to bear their own costs - Entitlement to costs - Effect of party conduct on entitlement to costs - Where proceedings withdrawn by applicant
South Australian Housing Trust v Brady & Milera [2018] SACAT 2
Hanna v City of Marion & Anor [2020] SACAT 21
Stratford v District Council of Tumby Bay [2020] SACAT 54
Mr M Lloyd, Koerner Lloyd Lawyers, for the applicant
Ms H Nikoloff, Crown Solicitor's Office, for the respondent
Dismissing on withdrawal of proceedings by applicant
1. I refer to the Direction of the Tribunal in this matter on 22 July 2021. The following Order finalises this application, including the question of costs.
2. By notice dated 22 December 2020, the respondent suspended the applicant's firearms licence. The suspension notice included the following.
(a) Matters had come to the respondent's attention (outlined in the notice) which indicated that the applicant might not be a fit and proper person to hold a firearms licence and/or that it would be contrary to the public interest to permit the applicant to continue to hold a firearms licence.
(b) The respondent had decided to suspend the applicant's licence until investigations into her suitability to hold a firearms licence and be in possession of firearms were completed.
(c) In the meantime, the respondent was extending the expiry date of the applicant's firearms licence. The licence had already expired, on 30 June 2020.
3. By notice dated 22 April 2021, the respondent cancelled the applicant's firearms licence. For reasons set out in the notice, the respondent was not satisfied that the applicant was a fit and proper person to hold a firearms licence.
4. The applicant applied to the Tribunal for a review of the cancellation of her licence. The decision referred to in the application is the cancellation decision of 22 April 2021 (and logically that is the decision under review, as it superseded the earlier suspension decision).
5. At the Directions Hearing on 10 June 2021, the respondent's solicitor indicated that she would be seeking the respondent's instructions in relation to the applicant's firearms licence having expired before it was suspended and cancelled.
6. There is no evidence that the applicant or her solicitor had disputed the suspension or the cancellation of her licence on the ground that it had already expired, nor was that mentioned in her application to the Tribunal as a reason why she considered the cancellation decision to be wrong.
7. By letter dated 21 July 2021 from the respondent's solicitor to the applicant's solicitor, the respondent:
(a) said that it had no power to suspend or cancel the applicant's firearms licence in circumstances where the licence had already expired and not been renewed;
(b) invited the applicant to withdraw her application to the Tribunal; and
(c) said that the applicant could apply to the respondent for a new firearms licence (which, if she did, would be assessed as usual).
8. At the Directions Hearing on 22 July 2021, the applicant (via her solicitor) accepted that position.
9. As set out in the Direction made on 22 July 2021, I took the application as withdrawn, on the basis that there was no need for it, given the respondent's position that it had not had the power to make the decision under review.
10. The applicant (via her solicitor) has applied for the respondent to pay her legal costs.
11. I need to be clear about how these proceedings are to be finalised.
12. The 'proceedings' means the proceedings in the Tribunal. Thus, the proceedings were commenced by the applicant, Ms Hoare, when she lodged her application for review.
13. The applicant's submissions on costs appear to misunderstand or misstate what is meant by 'the proceedings'.
14. First, the applicant submits the respondent 'discontinued' these proceedings. That is not so. The respondent did not institute these proceedings and therefore it cannot 'discontinue'[1] them.
15. Secondly, the applicant refers to s 57(2)(b) of the SACAT Act and submits there was 'no merit' in these proceedings.
(a) The need to ensure 'parties are not disadvantaged by proceedings that have little or no merit' is not relevant in the way the applicant submits. These proceedings were not brought against her; rather, she brought these proceedings.
(b) Taken literally, the submission that 'these proceedings had no merit' means that her application for review had no merit. I doubt that is what the applicant means.
16. Thirdly, the applicant refers to s 57(3) of the SACT Act and submits 'there is no good reason for the Tribunal not making an order for costs in this matter.'
(a) Section 57(3) applies where the Tribunal dismisses or strikes out proceedings in 'prescribed circumstances'.[2]
(b) Section 57(3) is not relevant in this case. The Tribunal is not dismissing or striking out the proceedings in any prescribed circumstances.
(c) Therefore, this is not a case in which the Tribunal should make an order for costs unless there is good reason not to.
17. In making these submissions, the applicant appears to have conflated her application with the decision that is the subject of her application.
18. The decision under review and the review proceedings are not the same thing. When section 57 says 'the proceedings', it does not mean the decision under review.
19. As for the decision under review in this case, it is no longer, or never was, capable of review. As the respondent has said, the respondent:
(a) had no power to extend or renew the licence after it had already expired; and
(b) therefore, had no power subsequently to suspend or cancel the licence, in the sense that there was no longer a licence that could be suspended or cancelled.
20. Thus, the decision under review has fallen away and hence there is no utility in (no need for) the review proceedings.
(a) the respondent invited the applicant to withdraw the review proceedings; and
(b) I took it that the applicant (via her solicitor), having accepted what the respondent said about the decision under review, was doing so.
22. Again, the respondent cannot 'discontinue' or withdraw these proceedings; this is the applicant's application.
23. Section 47 of the SACAT Act deals with withdrawal of proceedings. Where the applicant withdraws, or agrees to the withdrawal of, the proceedings, the Tribunal may (on the application of a party or on its own initiative) dismiss the proceedings.
24. An order for dismissal 'upon withdrawal by the applicant' is a procedural order and is not a reflection on the merits of the application.
25. Given the applicant's acceptance of what the respondent said about the decision under review, I am satisfied the applicant understands that the decision under review has fallen away and, therefore, that there is no longer any need for these review proceedings.
26. On that basis, I am satisfied the applicant withdraws, or agrees to the withdrawal of, these proceedings.
27. For those reasons, I am exercising the power in s 47 of the SACAT Act to dismiss the proceedings upon withdrawal by the applicant.
(a) the language of 'dismissal' here comes from s 47 and it is how proceedings are finalised where withdrawn;
(b) it is not dismissal based on any lack of merit or propriety in the application; and
(c) in this case, the order is being made because the proceedings are no longer necessary.
How the disposition of the application relates to costs
29. For the reasons set out above, this is not a case of:
(a) the respondent 'discontinuing' the proceedings; or
(b) the Tribunal dismissing the proceedings in prescribed circumstances.
30. There is, therefore, no presumption that the respondent should pay costs. Rather, the usual rule in the Tribunal applies, that parties bear their own costs.
General principles relating to costs in the Tribunal
31. The starting point is that parties to proceedings in the Tribunal must bear their own costs of the proceedings: s 57(1) of the SACAT Act.
32. This general rule applies even where a party succeeds in the proceedings. For example, if an applicant successfully proves that a decision of the Registrar of Firearms was wrong, that does not entitle the applicant to have their costs paid.
33. It may seem counter-intuitive to an applicant that they should have to pay their own legal costs when they have incurred those costs as a result of a decision that is proven to be wrong, but that is the general rule in the Tribunal.
34. The Tribunal may depart from the general rule.
(a) The Act under which the proceedings are brought may contain a different rule about costs: s 57(1) SACAT Act.
(b) If the Tribunal dismisses or strikes out proceedings in prescribed circumstances, the Tribunal should order costs against the party who brought the proceedings: s 57(3) SACAT Act.
(c) Otherwise, the Tribunal retains a general discretion to order a party to pay costs if the Tribunal considers it appropriate to do so: s 57(2) SACAT Act.
35. Section 57(2) specifies things the Tribunal may (or must) take into account in exercising the costs discretion, including 'any other matter' the Tribunal considers relevant.
36. Section 58(2) adds two specific things to which the Tribunal is to have regard when the proceedings are in the review jurisdiction, namely:
(a) whether the party genuinely attempted to enable and assist the decision-maker to make a decision on its merits;
(b) whether the decision-maker genuinely attempted to make a decision on its merits.
37. Thus, in review proceedings, the Tribunal may consider the conduct of the parties in the proceedings and in relation to the making of the decision under review.
38. As previous decisions of the Tribunal have made clear, a costs order is exceptional.[3]
39. There is nothing in the respondent's conduct of the review proceedings that would warrant a costs order against the respondent.
(a) The respondent did not bring these proceedings and is not 'discontinuing' them, nor are the proceedings being dismissed as against the respondent.
(b) The respondent itself brought attention to the point that resolved the proceedings. It did so at an early opportunity. The applicant had not identified the point.
(c) This saved the applicant the time and cost of having to argue her case, which was directed at the merits of the decision under review.
41. The real context in which the applicant is seeking costs is that she incurred costs in challenging a decision the respondent had no power to make.
42. In other words, the applicant should not have had to review the decision because the decision should not have been made.
43. This is an example of an incorrect decision having been made. The decision under review was incorrect because there was no power to make it.
44. As the principles outlined above make clear, the making of an incorrect decision is not in itself a basis for awarding costs. Even where the Tribunal sets aside an incorrect decision, the usual rule applies, that parties bear their own costs.
45. That brings me to the merits of the decision under review.
46. The respondent's mistake was not in the cancellation decision itself. The mistake was in purporting to 'extend the expiry date' of the licence after it had already expired.
47. That mistake rendered null the subsequent suspension and cancellation.
48. That does not undermine the reasons why the respondent decided to cancel the licence. The reasons, as they can be seen in the suspension notice and then the cancellation notice, cannot be said to be without substance or merit.
(a) matters had come to the respondent's attention about the applicant's fitness and propriety to hold a firearms licence;
(b) under the Firearms Act, the respondent must be satisfied that a licence-holder is a fit and proper person to hold the licence and may cancel the licence if 'not satisfied' of that;[4] and
(c) fitness and propriety to hold a licence, now or in the future, is very different from a licence having expired through the mere passage of time.
50. In those circumstances and given 'the overriding need to ensure public safety' in the Firearms Act, the respondent was justified in investigating, rather than ignoring, the matters that had come to its attention about the applicant.
51. Arguably, the respondent should have realised at the outset that it could not extend the licence's expiry date after the licence had expired. (Instead, the point appears to have come from legal advice in the review proceedings). However, all that really means is that the respondent made a mistake.
52. From what is contained in the suspension notice, cancellation notice and section 35 books of documents, I consider that the respondent genuinely attempted to make a decision on its merits.
53. In my view, there is nothing in the decision under review or the respondent's conduct in relation to it that would warrant departing from the usual costs rule. I do not consider it appropriate to order costs against the respondent.
[2] 'Prescribed circumstances' are where the Tribunal dismisses or strikes out proceedings for want of prosecution, or where the proceedings are frivolous, vexatious or improper, or where the proceedings are being conducted to cause disadvantage: s 57(3) SACAT Act and reg 7 SACAT Regulations. This is, in effect, dismissing or striking out Tribunal proceedings as against the party who brought them.
[3] See, for example: South Australian Housing Trust v Brady & Milera [2018] SACAT 2; Hanna v City of Marion & Anor [2020] SACAT 21; Stratford v District Council of Tumby Bay [2020] SACAT 54.
[4] The absence of satisfaction is enough. There is no onus on the respondent to prove that the licence-holder is not fit and proper.
Hoare
Register of Firearms [2021] SACAT 65