Lucano v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-11-13

Background

The Applicant has applied for costs under s 60(2) of the Civil and Administrative Tribunal Act 2016 (the CAT Act).
The Applicant was unsuccessful in having a decision of the Respondent to refuse him a firearms licence under the Firearms Act 1996 set aside: see Lucano v Commissioner of Police, NSW Police Force [2024] NSWCATAD 301 (the Tribunal decision).
The Applicant seeks costs thrown away relating to the vacation of a hearing date in the proceedings that occurred on 6 June 2024 where the Tribunal made orders by consent to vacate the single hearing date and made further procedural directions including listing the matter for hearing for two days in August 2024.

Material before the Tribunal

Both parties made written submissions to the Tribunal on the issue of costs, the Applicant on 21 and 30 October 2024 and the Respondent on 3 and 24 October 2024.
The Applicant provided an affidavit of Mr Drew, a legal representative of the Applicant sworn 20 August 2024. In its submissions, the Respondent relied on an affidavit of Mr Roberts, a legal representative of the Respondent which was Exhibit R3 in the substantive proceedings.

Procedural matter

The parties were given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing. I am satisfied the issue of costs can be adequately determined in the absence of the parties applying the guiding principle of s 36 of the CAT Act to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". A hearing in this costs application proceeding is therefore dispensed with under s 50(2) of the CAT Act.

Applicant's case

The Applicant submits he should be awarded costs thrown away relating to the vacated hearing in June 2024 on the basis: the Respondent breached the Premier's Memorandum M2016-03, Model Litigant Policy for Civil Litigation and Guiding Principles for Civil Claims for Child Abuse; the Respondent failed to comply with the Administrative Decision Review Act 1997 (ADR Act), and that the Applicant was unnecessarily disadvantaged by the Respondent's conduct which unreasonably prolonged the proceedings.
The Applicant provided extensive written submissions, however reference to s 60 of the CAT Act was only made in the final two paragraphs of the Applicant's final submissions of 30 October.

Respondent's case

The Respondent submits the Applicant has not identified any special circumstances that apply. The Respondent disputes the failures alleged by the Applicant and further submits that special circumstances do not in fact apply because the Respondent's conduct during the proceedings was proper and the Respondent was ultimately successful in the proceedings.

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.
The onus to satisfy the Tribunal that there are special circumstances warranting an award of costs lies with the Applicant: 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].
Merely because one or more s 60(3) criteria are satisfied does not necessarily mean special circumstances exist, given 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].
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.

Consideration

It is necessary to consider the whole of the circumstances of the proceedings and any relevant s 60(3) criteria as they apply in this matter in determining whether special circumstances exist warranting an award of costs.
The Applicant was unsuccessful in the proceedings. Therefore the Respondent had a strong claim to resist the awarding of costs. It also follows that the Respondent's decision to refuse the Applicant a firearms licence was not "frivolous or vexatious or otherwise misconceived or lacking in substance".
Having considered the procedural history of the proceedings prior to the hearing in which I presided, on the material before the Tribunal I am not satisfied that the Applicant, who bears the onus, has demonstrated any conduct of the Respondent to be improper or that there has been any failure by the Respondent to comply with the guiding principle of the Tribunal.
The Applicant submits that the Respondent failed to produce all relevant documents under s 58 of the ADR Act which caused disadvantage to the Applicant and unreasonably prolonged time, relying on the consent orders made on 6 June 2024 which included: 2. Note, pursuant to s 58(4)(b) of the Administrative Decisions Review Act 1997 (ADR) the Tribunal considers the classes of documents identified in [3] below may be relevant to the determination of this application, and is of the opinion that a notice in writing is to be served on the Respondent's solicitor.
I accept the submission of the Respondent that the requirement under s 58(1)(b) of the ADR Act is for an administrator to provide a copy of every document the administrator considers relevant to the decision they have made, which is different from the power under s 58(4) of the ADR Act for the Tribunal to take action regarding documents that may be relevant. Therefore I am not satisfied the orders made on 6 June demonstrate a gap in the s 58(1) documents filed by the Respondent in the proceedings.
I am also not satisfied the Applicant has identified any material later provided to the Tribunal in the proceedings suggests there was a gap in the material filed under s 58(1) of the ADR Act by the Respondent in these proceedings.
On the material before the Tribunal, I am not satisfied the 6 June vacation of the one day hearing date, was caused by conduct of the Respondent, or that the Applicant was unnecessarily disadvantaged, or that there was an unreasonable prolonging of time resulting from conduct of the Respondent.
It was appropriate for the Tribunal, applying the guiding principle of the Tribunal under s 36 of the CAT Act and determining its own procedure as permitted by s 38 of the CAT Act, to adjourn the proceedings to provide time for the Applicant to compile further material he considered relevant. A hearing in the proceedings still occurred, eventually required two days of hearing and the filing of further written submissions in closing following the end of the second day of hearing.
Taking into account the whole of the circumstances, including considering s 60(3) criteria, as discussed in these reasons, I am not satisfied special circumstances arise in the proceedings that warrant a departure from the usual order that each party bear their own costs.
It follows that the Applicant's application for costs 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 Applicant's application 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: 13 November 2024

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Judgment (9 paragraphs)

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Cases Cited (9)