The substantive proceedings concerned the administrative review of a decision made by a delegate of the Commissioner of Police, NSW Police Force ("the Respondent"), to refuse an application made by Andrew Sorensen ("the Applicant") for a category AB firearms licence under the Firearms Act 1996 ("the Act").
The matter was listed for hearing on 16 July 2024. On 26 June 2024, the Respondent lodged an application for dismissal of the proceedings on the basis that the proceedings were misconceived.
The Applicant withdrew his application on the day of the hearing.
The Respondent lodged an application for costs following the Applicant's withdrawal of his application. That application is the subject of this decision.
[2]
Background
The Applicant applied for his category AB firearms licence in March 2020. The Respondent's delegate refused the application on the basis that the Applicant was a person of interest with respect to the death of his former partner, and a coronial inquest into the death was pending. The delegate formed the view that it would not be in the public interest for the Applicant to hold a firearms licence until the inquest was concluded.
The decision to refuse the licence application was affirmed on internal review. The Applicant applied to the Tribunal for external review in July 2022.
The matter was continually adjourned on the basis of the pending coronial inquest but was ultimately listed for hearing in July 2024.
The Applicant resided in NSW for most of the period after the application was lodged with the Tribunal. However, records obtained by the Respondent indicated that the Applicant became a resident of South Australia in about May 2024.
Section 11(3)(d) of the Act states that a licence must not be issued "unless the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State."
In June 2024, the Respondent sent correspondence to the Applicant advising that as he was a resident of South Australia, he was ineligible to possess a NSW firearms licence. The Respondent requested that the Applicant withdraw his application. The Applicant replied and advised that he would seek advice on the issue and respond.
The Respondent subsequently sent a further email to the Applicant requesting he withdraw the proceedings but received no response.
On 26 June 2024, the Respondent lodged an application for dismissal of the proceedings on the basis that the proceedings were misconceived.
On the morning of the hearing, the Applicant sent correspondence to the Tribunal and the Respondent, advising that he was withdrawing his application.
[3]
The Issue for determination
The Respondent seeks an order for costs in the amount of $10,560.00 plus GST for the period 21 June 2024 to 16 July 2024. The issue for determination is whether there are special circumstances warranting an award of costs.
[4]
Relevant Law
Section 50(2) of the CAT Act, provides that:
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.
The parties have agreed to me determining the issue of costs on the papers. As I am satisfied that the issue of costs can be adequately determined in the absence of the parties by considering their written submissions, I dispense with a hearing.
Section 60 of the CAT Act sets out the provisions governing costs in Tribunal proceedings:
60 Costs
(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.
(4) If costs are to be awarded by the Tribunal, the Tribunal may -
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
(5) In this section -
costs includes -
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
The matters set out in section 60(3) are not exhaustive. As noted in section 60(3)(g), the Tribunal may have regard to any other matter that it considers relevant.
I most recently considered the applicable principles as to whether there are "special circumstances" to justify a costs order in favour of a party in Sarkees v Commissioner for Fair Trading [2024] NSWCATOD 194 ("Sarkees"). I will adopt the comments that I made in Sarkees.
The Appeal Panel of the Tribunal has considered on many occasions the applicable principles as to whether there are "special circumstances" to justify a costs order in favour of a party. In Grasso v The Owners Strata Plan No. 52399 [2022] NSWCATAP 91 ("Grasso"), the Appeal Panel stated at paragraph [12]:
"Certain principles have been established concerning an award of cost as follows:
1. An application for costs can only succeed before the Tribunal if it can be shown that 'the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional.': Santow JA in Cripps v G & M Mawson [2006] NSWCA 84 at [60] in relation to s 88 (1) of the Administrative Decisions Tribunal Act 1997, which, by analogy, is a useful statement applicable in this Tribunal;
2. 'An assessment whether circumstances are "special" involves the exercise of a value judgement carried out by way of comparison between what is not "special", and what is special.': See Alexander James Pty Ltd v Pozetu Pty Ltd (No.2) [2016] NSWCATAP 75 at [14];
3. the nature and complexity of the appeal proceedings is the relevant consideration; not the nature and complexity of the proceedings at first instance: see Sahade v Owners SP No 62022 [2015] NSWATAP 225 at [38];
4. the power to award costs is a discretionary power vested in the decision maker: see Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 62 at 65; [1997] HCA 6;
5. the exercise the discretion requires a tribunal 'to weigh whether those circumstances are sufficient to amount to "special circumstances" that justify departing from the general rule that each party bear its own costs': see The Owners - Strata Plan No 63731 v B&G Trading Pty Ltd (No2) [2020] NSWCATAP 273 at [13];
6. an order for costs is intended to compensate the successful party: it is not intended to be punitive in nature: Oshlak v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Hamod v State of New South Wales (2002) 188 ALR 659; [2002] FCA 424; [2002] FCAFC 97; and
7. the discretion to award costs is to be exercised judicially: Nguyen v Perpetual Trustee Co Ltd [2015] NSWCATAP 264 at [94]."
In The Owners-Strata Plan No 53865 v JPG Investments Pty Ltd (No 2) [2024] NSWCATAP 67 the Appeal Panel provided additional comments at paragraph [19]:
Applicable principles are discussed in The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) [2020] NSWCATAP 273 at [6]-[15]) as follows (footnotes omitted):
"The general rule set out in s 60(1) was:
"… 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]. [1]
In Feng v OzWood (Australia) Pty Ltd [2020] NSWCATAP 42 the Appeal Panel said, at [8], that the discretion to award costs had to be exercised judicially:
"...having regard to the underlying principle that parties to proceedings in the Tribunal are ordinarily to bear their own costs. (See eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]-[31]; Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (no 2) [2016] NSWCATAP 168 at [16].)"
Section 60(2) says that the Appeal Panel may award costs to a party "only if" satisfied there are special circumstances warranting an award of costs.
Section 60(3) sets out a non-exclusionary list of factors to which an Appeal Panel may have regard in determining whether special circumstances warranting an award of costs exist.
"Special circumstances" are circumstances that are out of the ordinary, but need not be those which are exceptional or extraordinary: Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 at [60] (Santow J); Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; Edwards v Commissioner for Fair Trading, Department of Customer Service (Costs) [2019] NSWCATAP 249 at [9]; Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [107].
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].
He who asserts must prove, and so the party seeking the costs order bears the onus of proving that special circumstances exist - Styles v Wollondilly Shire Council [2017] NSWCATAP 108 at [5] under the heading "Costs".
Whether special circumstances exist is a question of fact and each case must be assessed according to its circumstances: Wynne Avenue Property Ltd v MJHQ Pty Ltd (No 2) [2019] NSWCATAP 68 at [57]; The Owners - Strata Plan 20211 v Rosenthal [2019J NSWCATAP 49 at [15]."
The Appeal Panel decisions in Grasso and The Owners-Strata Plan No 63731 v B & G Trading Pty Ltd (No 2) have been followed in a number of decisions of this Tribunal.
[5]
The Respondent's case.
The Respondent submits that the circumstances in this matter are of a sufficiently special nature such as to warrant the awarding of costs.
In support of its application for costs, the Respondent relies on the statement of Mr James Nash dated 2 September 2024. Mr Nash's evidence is that the Respondent's solicitors wrote to the Applicant on 6 December 2023 advising:
"We note that the usual rule in the Tribunal is that each party to proceedings is to pay the party's own costs, and that the Tribunal may only make an order for costs if it is satisfied that there are special circumstances warranting an award of costs.
We do not consider there to be any special circumstances pursuant to s60(3) of the Civil and Administrative Tribunal Act 2013 (Tribunal Act) that would warrant an award of costs in your favour. In particular, we note that you are not legally represented in this matter, and therefore are not entitled to claim costs for your own time in relation to the proceedings. We do however note that if you choose to continue the proceedings notwithstanding the issues which the Respondent has raised regarding the ongoing Coronial inquest (which have resulted in the proceedings being adjourned on a number of occasions by the Tribunal), you may in due course be liable to a costs order for unnecessarily prolonging the proceedings.
We again invite you to withdraw your application before the Tribunal and note that it is open to you to reapply for a firearms licence in the future once the Coronial inquest has come to a conclusion. ..."
Mr Nash's further evidence is that on 13 June 2024 he sent an email to the Applicant regarding withdrawing his application. The email stated:
We are instructed that you have recently moved interstate and are now residing in South Australia. We understand, for example, that you have changed your drivers licence and residential address to be an address in South Australia.
…
Because you are now a resident in South Australia, we are of the view that the Tribunal cannot grant you a NSW firearms licence, regardless of any findings of fitness to hold a licence being made at the hearing.
Accordingly, we respectfully request that you withdraw your application. Should you choose to withdraw your application, we are instructed that the Commissioner will consent to the withdrawal.
On 21 June 2024 Mr Nash sent a further email to the Applicant stating:
Could you please advise if you agree to our request to withdraw your application?
As previously stated, the Commissioner will consent to the withdrawal.
Mr Nash's evidence is that from 21 June 2024 until the hearing on 16 July 2024, the Respondent incurred costs in the amount of $11,854.10 (incl of GST). He provided a fee ledger and invoices rendered by the Respondent's legal representatives.
The Respondent contends that the Applicant's case had no tenable basis in fact or law as he was ineligible for a firearms licence due to being a resident of South Australia. The Respondent submits that once it became aware of his residency status, it took immediate steps to advise the Applicant that his application was futile. The Respondent advised the Applicant that his claim had no tenable basis in law and was misconceived.
The Respondent contends that the Applicant had ample time to obtain legal advice on this issue. Once he was made aware of the fact his residency status precluded him from holding a NSW firearms licence, he was obligated to withdraw his application. The Respondent submits that it gave him every opportunity to withdraw his application and when he failed to do so the Respondent was required to incur the full costs of a hearing.
The Respondent seeks compensation is sought as to cost incurred as a direct result of the Applicant's failure to withdraw his application.
The Respondent further contends that the Applicant's claim that he was not aware cost could be awarded in the Tribunal should be given little or no weight in determining whether to award costs.
The Respondent submits that these circumstances are of a special nature such as to warrant the awarding of costs.
[6]
The Applicant's case.
As noted, the Applicant applied for a firearms licence in March 2020. The application was refused in April 2022. An internal review application affirmed the refusal in early July 2022 and the Applicant sought external review in late July 2022. The matter was ultimately withdrawn in July 2024.
The Applicant accepted that as he has moved interstate. He has a new job in Adelaide, has married, and he and his partner are expecting a baby. He accepted that he has no need for an NSW firearms licence. He also accepted that that his chances of being granted a licence were low. He stated that he did not have any plans to move interstate when he commenced his application. He stated that he started the proceedings in the Tribunal as he felt that he had been treated unfairly, and he noted that the matter has been delayed at the Respondent's request.
The refusal and delay were related to an upcoming coronial inquest into the 2016 death of the Applicant's partner.
He stated that it came as a shock that the Respondent asked for costs when he was never informed that this was a possibility. He noted that the Tribunal forms did not contain any reference to costs other than the application fee. He further noted that the NCAT fact sheet says that each party generally pays its own costs, unless there are special circumstances. He noted that there are no warnings on the factsheet that costs can be claimed.
The Applicant disputes that there are special circumstances that warrant an award of costs. He asserts that:
He has been disadvantaged in that the Respondent has been legally represented and has had a closed door hearing that neither the Applicant nor any legal representative was able to attend;
the Respondent has been able to have the matter adjourned for 2 years.
the Respondent has been able to rely on evidence that he has not been given;
the Respondent had failed to comply with a Tribunal order made on 7 May 2024 that required it to provide materials to the Applicant by 25 June 2024;
the Respondent requested an extension of the timetable but did not respond to the Applicant's request for an explanation about the extent of the delay;
the Tribunal granted the extension even though the Applicant was against it and wanted it to proceed with the hearing as planned;
the material was not provided to the Applicant until the day before the hearing, leaving him no time to prepare for a hearing the next day;
it was not until the Applicant read that material that he became aware that living interstate made him ineligible for an NSW firearms licence;
once he became aware that he was ineligible to obtain the licence he was seeking, he withdrew the application.
The Applicant contends that if the Respondent had complied with Tribunal order made on 7 May 2024, he could have had access to the material on 25 June 2024 and could have withdrawn the application much earlier.
He also submitted that the Respondent has been responsible for the length of time that it took to complete the matter. He alleged that the Respondent used legal tactics to delay and disadvantage him.
With respect to the coronial inquest, he submitted that if there was any evidence against him, he would have been charged within the 8.5 years since the death of his former partner.
He contends that the case was simple. He was denied a firearms licence, and he used the only process available to him to appeal the decision. He submitted that he has cooperated with the Tribunal at every stage. He met all the deadlines set by the Tribunal as he wanted a resolution to the situation. In contrast, he submitted that the Respondent has delayed, been noncompliant with most of the orders and has deflected from getting to the real issues in the dispute. He contends that this has disadvantaged him and extended the case longer than it should have. He contends that the Respondent's own actions have exacerbated the costs that it has incurred. He submits that in these circumstances the Respondent is not eligible for an award of costs.
He urges the Tribunal to find that, in this instance, the application for costs should not succeed.
[7]
Consideration
The Applicant's withdrawal of his claim was an appropriate action for him to take. The essence of the Respondent's argument is that the Applicant should have taken that action much earlier than he did.
The Applicant has correctly identified the amount of time that has passed since he lodged his application with the Tribunal and that the Respondent had sought to delay the matter until the coronial inquest was finalised. At the time of his application was lodged, the Applicant was a resident of NSW and therefore was not precluded from obtaining a firearms licence by section 11(3)(d) of the Act.
The Applicant moved interstate some two years after he lodged his application with the Tribunal. Having moved interstate with no intention to about to become a resident of NSW, he could not satisfy the residency requirement for the grant of a licence. His application for a NSW firearms licence was destined to fail.
On 13 June 2024 the Respondent advised the Applicant that:
"Because you are now a resident in South Australia, we are of the view that the Tribunal cannot grant you a NSW firearms licence".
The Respondent contends that once he was made aware of the fact his residency status precluded him from holding a NSW firearms licence, he was obligated to withdraw his application.
However, it is apparent that section 11(3)(d) of the Act the Applicant is not precluded from obtaining a licence merely because he was a resident in South Australia. He would not be precluded from obtaining a licence if he was about to become a resident of NSW.
The Respondent did not query whether the Applicant was about to become a resident of this State.
On 14 June 2024, in response to the Respondent's correspondence, the Applicant indicated that he would seek advice on the issue.
In my view, the Applicant was entitled to obtain legal advice in relation to his application, the information that the Respondent had given him and the proper construction of section 11(3)(d) of the Act.
The Applicant is self-represented. There is no evidence that he is legally qualified. He was not required to withdraw his claim without having the opportunity to obtain advice.
The Applicant further stated that he received the Respondent's final material on the day before the hearing. He further stated that it was not until he read that material that he became aware that he was not eligible for an NSW firearms licence. He stated that as he did not receive the Respondent's material until the day before the hearing, the delay left him no time to prepare for a hearing.
Section 60(2) of the CAT Act provides that 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. In my view, the circumstances on which the Respondent has relied are not special circumstances.
An application for costs can only succeed before the Tribunal if it can be shown that the circumstances are out of the ordinary. It is not in dispute that the Applicant had moved interstate and he does not contend that he is about to move to NSW. I agree that that in these circumstances, the application was destined to fail. The proceedings were therefore misconceived or lacking in substance: section 60(3)(e) of the Act. This is a relevant consideration with respect to the issue of whether there are special circumstances warranting an award of costs.
The Respondent contends that it gave the Applicant every opportunity to withdraw his application and when he failed to do so the Respondent was required to incur the full costs of a hearing. However, it appears that the dismissal application was a relatively straightforward application. It was open to the Respondent to press the dismissal application. If that application had failed, it could then seek a new timetable to progress the substantive application. In my view, the circumstances are not out of the ordinary.
Even if the considerations identified by the Respondent do amount to special circumstances, I must be satisfied that they are circumstances "warranting an award of costs". In the whole of the circumstances of this matter, I am not satisfied that an award of costs is warranted.
In my view, the circumstances are not out of the ordinary. I am not satisfied that there are special circumstances that justify departing from the general rule that each party bear its own costs. Accordingly, it is my view that the application for costs should be dismissed, and the parties should pay their own costs of the application.
[8]
Order
An oral hearing on the issue of costs is dispensed with under section 50(2) of the Civil and Administrative Tribunal Act 2013.
The Respondent's application for costs is dismissed.
[9]
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 December 2024