Ireland v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-07-12

Background

Benjamin Alexander Ireland has applied for costs under s 60(2) of the Civil and Administrative Tribunal Act 2016 (the CAT Act).
Mr Ireland had his firearms licence under the Firearms Act 1996 suspended by the Commissioner of Police as a result of mental health concerns following an incident in 2021. That licence expired and Mr Ireland made a new licence application on 16 March 2022 which was refused on 4 May 2022.
On 9 January 2023 Mr Ireland sought review of the decision of the Commissioner to refuse him a firearms licence and the Tribunal set aside the refusal decision on 23 August 2023: Ireland v Commissioner of Police [2023] NSWCATAD 226. The Commissioner appealed the Tribunal's decision: Commissioner of Police, NSW Police Force v Ireland [2024] NSWCATAP 1. On 5 January 2024 the Appeal Panel allowed the Commissioner's appeal on procedural fairness grounds, remitting the decision to a differently constituted Tribunal and permitting fresh evidence to be provided in any remittal.
Mr Ireland provided fresh medical evidence under directions made by the Tribunal on 25 January 2024. By consent, the Tribunal remitted the matter to the Commissioner for reconsideration on 8 April 2024. On 11 April 2024 the Commissioner set aside the refusal decision and instead decided to issue a firearms licence to Mr Ireland. On 1 May 2024 the Tribunal proceedings were dismissed.

Decision on the papers

The parties were given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and I am satisfied the matter can be adequately determined in the absence of the parties. A hearing in these costs application proceedings is dispensed with under s 50(2) of the CAT Act.

Applicant's case

Mr Ireland submits he should be awarded costs for the entire proceedings on the basis that special circumstances apply because the Commissioner's conduct in the proceedings "singled" him out in a vexatious manner not based on the facts of his case. Mr Ireland submits all of the relevant statutory criteria are met to justify the Tribunal finding special circumstances apply.

Respondent's case

The Commissioner submits special circumstances do not apply because the Commissioner was successful before the Appeal Panel and they had concerns as to Mr Ireland's mental health which were not resolved until fresh medical evidence was provided in 2024.

Law

Section 60 of the CAT Act relevantly provides: (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (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.

Consideration

The onus to satisfy the Tribunal that there are special circumstances warranting an award of costs lies with Mr Ireland: Styles v Wollondilly Shire Council [2017] NSWCATAP 108.
The special circumstances specified in s 60(2) of the CAT Act are circumstances that are out of the ordinary and do not have to be extraordinary or exceptional: see Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 (Youssef) at [108].
In Youssef the Appeal Panel stated (at [107]): The general rule that parties should bear their own costs is designed to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as is practicable: Choi v University of Technology Sydney [2020] NSWCATAP 18 at [41]. It is accepted that where a party is unsuccessful in the party's application before the Tribunal, this alone will not amount to special circumstances in favour of the successful party.
In this matter Mr Ireland has not been entirely successful. While Mr Ireland was initially successful at first instance, on appeal the Commissioner was successful. This eventually resulted in remittal for reconsideration by the Commissioner, under orders made by consent. The reconsideration occurred with the benefit of fresh medical evidence.
In considering relevant s 60(3) criteria as they apply to these costs application proceedings, on the basis of the material before the Tribunal in these cost application proceedings, I note the observations of the Appeal Panel in The Owners - Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [11]-[13] that: However, it does not follow that a costs order should be made simply because one or more of the factors in s 60(3) are made out. Even if satisfied that there are special circumstances, the Appeal Panel 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 at [21]; Youssef at [108]. 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 87 at [9]; Obieta v Australian College of Professionals Pty Ltd (2014) NSWCATAP 38 at [81]; Khalafv Commissioner of Police [2019] NSWCATOD 178 at [29]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [35].
Having considered the procedural history of the proceedings, I am not satisfied that the Commissioner unreasonably prolonged the proceedings. Instituting appeal proceedings is not generally unreasonable, particularly when the appeal is upheld.
I do not consider it relevant in these costs application proceedings, as Mr Ireland submits, to closely scrutinise every procedural and other step taken in the first instance proceedings, given the subsequent appeal proceedings in which the Commissioner was successful. Further, on the material before the Tribunal I cannot be satisfied any of the proceedings were "frivolous, vexatious, otherwise misconceived, or lacking in substance". It is evident the Commissioner had concerns about Mr Ireland's mental health status and history which did not resolve until they were provided with fresh medical evidence in 2024.
On the material before the Tribunal, I find no special circumstances arise in these proceedings that warrant a departure from the usual order that each party bear their own costs.
It follows that the costs application should be dismissed.

Orders 1. An oral hearing on the issue of costs is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The application for costs is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 12 July 2024

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (10)