FTW v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 106

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

FTW v Commissioner of Police, NSW Police Force [2023] NSWCATAD 106

Hearing dates:

On the papers

Date of orders:

09 May 2023

Decision date:

09 May 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P H Molony, Senior Member

Decision:

(1) A hearing with respect to these applications is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013.

(2) The application for a variation of the orders made under s 64 of the Civil and Administrative Tribunal Act 2013 with respect to the previous Tribunal decision described in paragraph 13 of these reasons is dismissed.

(3)   The Tribunal orders:

(a) that disclosure and publication of the Applicant’s name be prohibited under s 64 of the Civil and Administrative Tribunal Act 2013 and directs that the Applicant’s name be anonymised for the purpose of these proceedings; and

(b)   that paragraph 13 of these reasons marked [NOT FOR PUBLICATION] is not to be published or released to the public.

(4)   That each party bear their own costs of the proceedings.

Catchwords:

Administrative law – administrative review of decision to refuse a firearms licence remitted for reconsideration by consent – firearms licence granted on reconsideration – applicants seeks costs of proceedings – whether special circumstances exist under s 60 of the Civil and Administrative Tribunal Act 2013 warranting an order for costs – no order costs non-publication and no disclosure orders - s 64 of the Civil and Administrative Tribunal Act 2013.

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

AIN v Medical Council of New South Wales [2015] NSWCATAP 241

Bettington v Commissioner of Police [2021] NSWCATAP 110

BHS v Biripi Aboriginal (sic) Children's Services (No 2) [2015] NSWCATAD 109

Burns v Passas [2018] NSWCATAD 247

Chan v Commissioner for Fair Trading [2015] NSWCATAD 62

Chief Commissioner of State Revenue v Fitzpatrick Investments Pty Limited [2016] NSWCATAP 91

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

EQH v Health Administration Corporation [2021] NSWCATAD 215

Fitzpatrick Investments Pty Limited v Chief Commissioner of State Revenue [2015] NSWCATAD 103

Re Minister for Immigration and Ethnic Affairs, ex part Lai Qin [1997] HCA 6; (1997) 186 CLR 622

Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84

State of NSW (Justice Health) v Dezfouli [2021] NSWADTAP 69

Yammatree Pty Ltd (Applicant); North West Local Land Service [2015] NSWCATAD 221

Texts Cited:

None

Category:

Consequential orders

Parties:

FTW (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Piper Alderman (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/00265571

Publication restriction:

The Tribunal orders:
(a) that disclosure and publication of the Applicant’s name be prohibited under s 64 of the Civil and Administrative Tribunal Act 2013 and directs that the Applicant’s name be anonymised for the purpose of these proceedings; and
(b) that the paragraph of these reasons marked [NOT FOR PUBLICATION] is not to be published or released to the public.

REASONS FOR DECISION

1. In this matter I have made orders under s 64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure and publication of the applicants name, and directing that it be anonymised. In these proceedings he is referred to as FTW.

2. I have also made an order prohibiting the publication to anyone but the parties of paragraph 13 of these reasons.

Background

3. These reasons concern, among other things, applications made in proceedings relating to an administrative review of a decision by the Commissioner to refuse the Applicant a firearms licence under the Firearms Act 1996 (NSW) (the Firearms Act). That decision was made on 21 June 2022 (the original decision). The application for administrative review was lodged on 6 September 2022.

4. The Commissioner then made an application under s 59 Administrative Decisions Review Act 1997 (NSW) (the ADR Act) to be excused from lodging certain material otherwise required by s 58 of that Act (the s 59 application). The contested s 59 application was fixed for hearing on 9 November 2022. The Tribunal made non-disclosure and non-publication orders under s 64 - including prohibiting disclosure to the applicant and his legal representatives – of material claimed to be confidential until the determination of the s 59 application. On 9 November 2022, the Tribunal conducted a private hearing with respect to the s 59 application, in the absence of the Applicant and his legal representatives, in accordance with s 49(2) of the Civil and Administrative Tribunal Act 2013 (NSW) NCAT Act which provides:

“The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.”

5. The Tribunal made orders under s 59 of the ADR Act excusing the Commissioner from filing certain materials described in a confidential statement which would have otherwise been required to be lodged under s 58. The Tribunal made orders prohibiting the disclosure or publication of evidence given in the private hearing, the confidential documents and confidential statement. The orders contemplated filing some of the confidential material with the Tribunal.

6. On 21 November 2022, the parties agreed to certain redacted material being released to the applicant’s representative, upon them undertaking that they would “not disclose the redacted material or its content” to the applicant himself. The Tribunal made consent orders varying the orders made on 9 November 2022 to allow that to occur.

7. The issues concerning the Applicant’s firearms licence have since been resolved following the parties agreeing, on 16 December 2022, to the Tribunal remitting the original decision for reconsideration by the Commissioner. The Tribunal’s power to remit decisions for reconsideration is found in s 65 of the ADR Act which provides:

(1) At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:

(a) affirm the decision, or

(b) vary the decision, or

(c) set aside the decision and make a new decision in substitution for the decision set aside.

(3) If the administrator varies the decision:

(a) the application is taken to be an application for review of the decision as varied, and

(b) the person who made the application may either:

(i) proceed with the application for review of the decision as varied, or

(ii) withdraw the application.

(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:

(a) the application is taken to be an application for review of the new decision, and

(b) the person who made the application may either:

(i) proceed with the application for review of the new decision, or

(ii) withdraw the application.

8. Following reconsideration the Commissioner, on 16 January 2023. set aside the original decision and instead determined to grant the Applicant’s application for a firearms licence (the reconsideration).

9. The administrative review proceedings are yet to be withdrawn or discontinued. On 24 January 2023, a directions hearing was held where the Tribunal made orders in relation to an exchange of evidence and submissions regarding the Applicant’s application for costs. As I understand it, these orders were made in contemplation of the Applicant withdrawing the administrative review application. With the parties consent, the Tribunal made an order dispensing with a hearing with respect to costs, and ordered that the costs issue should be decided on the papers.

10. Since then the Applicant filed an application in the proceedings seeking costs, together with a separate applications seeking non-disclosure and/or non-publication orders under s 64(1)(a) and (b) of the NCAT Act in respect of

1. these administrative review proceedings and with respect to any costs decision; and,

2. with respect to earlier concluded administrative review proceedings between the parties with respect to an earlier decision to cancel the Applicant’s firearms licence (the previous Tribunal decision). That decision was in writing. It affirmed the cancellation decision and prohibited the disclosure and publication of certain parts of the decision marked “[NOT FOR PUBLICATION]”.

Each of these sought variation to existing orders under s 64.

11. Following receipt of the applications the Tribunal subsequently made orders with respect to the filing and service of submissions and material going to the s 64 issues. The parties were required to make submissions as to whether or not the applications under s 64 can be determined without a hearing on the papers.

12. It needs to be understood that the previous Tribunal decision related to an administrative review of a decision to cancel the Applicant’s firearms licence due to alleged concerns regarding his mental health and allegations relating to his treatment of a family member: all of which were denied and strongly contested by the Applicant. During the administrative review process the firearms licence expired, rendering the outcome of the administrative review ineffective, as a new firearms licence would have to be applied for whatever the outcome: see Sawires v Commissioner of Police [2010] NSWADTAP 68 at [12]. Ultimately, the Tribunal affirmed the decision to cancel based on confidential evidence before it, but in doing so the Tribunal made comments to the effect that medical evidence adduced by the Applicant might adequately address public interest concerns about his mental health. The confidential material before it – which the Tribunal discussed, but which is the subject of non-disclosure and non-publication orders – was sufficient to persuade the Tribunal that the cancellation should be affirmed in the public interest.

13. [NOT FOR PUBLICATION]

14. The Applicant then applied for a new firearms licence, as his previous licence had expired. The Commissioner refused the application on 21 June 2022. The Applicant then applied for an internal review of that decision. The internal review confirmed the decision to refuse him a firearms licence. In doing so, the decision maker:

1. did not rely on allegations raised in the earlier proceedings concerning the Applicant’s treatment of a family member.

2. relied on the Tribunal’s relatively recent confirmation of the decision to cancel the Applicant’s firearms licence in the previous Tribunal decision.

3. expressed concerns about the Applicant’s mental health and about the quality and sufficiency of reports from the Applicant’s medical practitioner.

4. does not appear to have read the previous Tribunal decision given the Tribunal’s comments about the medical reports addressing the mental health concerns. Indeed, the decision referred to only one previous report and said:

“No further information has been provided to the Registry in relation to your mental health.”

5. raised fresh concerns about the Applicant mental health arising from an incident before the publication of the previous Tribunal decision, but after the hearing concluded, when Polce were contacted regarding the Applicant’s welfare by family.

15. The determination of the costs issue on the papers together with the applications seeking non-disclosure and non-publication orders have been referred to me.

Material considered by the Tribunal.

16. In considering these matters I have accessed and had regard to some of the contents of:

1. The Tribunal file relating to the previous Tribunal decision.

2. The Tribunal file relating to this administrative review application).

17. I have had specific regard to:

1. An unredacted copy of the previous Tribunal decision.

2. Application for miscellaneous matters filed on 17 February 2023, relating to the previous Tribunal decision, seeking orders relating to the non-publication of that decision, or alternately the non-publication of the applicant’s name and of specified paragraphs in that decision.

3. Email from the Commissioner’s legal representative dated 27 February 2023 which advised:

“… we confirm that the Commissioner of Police, NSW Police Force does not wish to male any submissions in reply to the Applicant’s confidentiality applications and has no objections to the applications being dealt with on the papers.”

4. Applicant’s Costs Application and Submissions filed 3 February 2023.

5. Respondents Submissions on Costs filed 16 February 2023.

6. Applicant’s application for costs filed 17 February 2023.

7. Applicant’s Reply Submissions on Costs filed 24 February 2023.

8. Applicants Submissions on the Section 64 application filed 17 February 2023.

9. Applicant’s Further Submissions on the section 64 application filed 24 February 2023, including the material relied on by the application specified in paragraph 3 and 4 of those submissions.

Should the three applications each be decided without a hearing?

18. Section 50(2) to (4) of the CAT Act provide:

(2) 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.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

19. Both parties have indicated their agreement to each of applications being determined on the papers. Having reviewed the materials, I am satisfied that the three applications can be decided in the absence of the parties by considering the materials lodged by them. I therefore dispense with any hearings.

The application for non-disclosure and non-publication orders with respect to the present proceedings (2022/02665571) and the previous proceedings.

20. Section 64 of the NCAT Act relevantly provides:

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) …

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

21. In EQH v Health Administration Corporation [2021] NSWCATAD 215 Senior Member Mulvey explained:

“[17] Ordinarily, the Tribunal is bound by principles of procedural fairness or natural justice. It ‘may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice’ (the CAT Act, s38(2)). An express exception to this is found at s64(1)(d) of the CAT Act. The Tribunal is permitted pursuant to that section to make an order that evidence be withheld from a party if the Tribunal considers this to be ‘desirable’. The word ‘desirable’ should be interpreted with regard to the most basic common law precept of open justice (see State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s64(1) of the CAT Act, being s75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)). …

22. In State of NSW (Justice Health) v Dezfouli [2021] NSWADTAP 69 an appeal panel of the ADT considering s 75 of the then Administrative Decisions Tribunal Act 1997 (NSW), which contained similar powers wrote:

“81 It is difficult if not impossible to set out in short form all the matters that, according to the case law just discussed, should be taken into account in deciding whether an order should be made under section 75(2). It must suffice here simply to draw attention to the following points of relevance to our decision in this case: (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.”

23. In DRJ v Commissioner of Victims Rights [2020] NSWCA 136, Leeming JA (Bell P and Meagher JA agreeing) explained:

“​23 ... consistently with its status as the peak tribunal for external merits and administrative review of much government decision-making, many of NCAT’s determinations are made public. That being so, s 64 of the Civil and Administrative Act 2013 (NSW) confers power to prohibit or restrict the disclosure of applicants’ names whenever the Tribunal is satisfied that it is desirable to do so. Section 64 is significantly different from the regime established by the Court Suppression and Non-publication Orders Act – the “sharp contrast” was noted in Misrachi v The Public Guardian [2019] NSWCA 67 at [13].

​​24. ​It is to be firmly borne in mind that an application for merits review in a State tribunal is quite different from commencing civil proceedings in the Supreme Court. …

24. In Bettington v Commissioner of Police [2021] NSWCATAP 110 at [40]–[41]:

“40. In DRJ v Commissioner of Victims Rights [2020] NSWCA 136, the Court of Appeal highlighted the differences between the powers of the Tribunal under s 64 of the NCAT Act and those of courts under the Court Suppression and Non-publication Orders Act 2010 (NSW). In particular, the NCAT Act does not have an equivalent provision to s 6 of the Court Suppression and Non-publication Orders Act 2010 (NSW):

‘In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.”

Nor is there any express statutory requirement in the NCAT Act for the circumstances to be “special” or “extraordinary” before orders may be made under s 49 or s 64. We do not understand the Supreme Court in Bellamy v Bellamy [2018] NSWSC 534 or the Appeal Panel of the ADT in State of NSW (Justice Health) v Dezfouli [2008] NSWADTAP 69 to have intended to substitute a different legal test for the test set out in those provisions. In our view, the learned judge and members of the ADT used those words to emphasise that the fundamental principles of open justice and procedural fairness should not readily be displaced. However, just as “[T]he words of a Minister must not be substituted for the text of the law”, so the words of a judge or other decision maker must not be substituted for the plain meaning of the words in a legislative provision: Re Bolton; Ex Parte Beane (1987) 162 CLR 514, 518 (Mason CJ, Wilson and Dawson JJ). The words “special” or “extraordinary” should not displace the natural and ordinary meaning of the words in s 49 and s 64 of the NCAT Act.”

25. In this case the Applicant is seeking orders prohibiting publication of this and the previous Tribunal decision, or, alternately, relating to the non-disclosure and non-publication of his name (and those of family members) and restricting publication of the allegations made against him. If made, those orders would not be inconsistent with s 65 of the NCAT Act. The Commissioner has chosen not to make any submissions in relation to the application.

26. In his submissions the Applicant argues that he should not be identified on the public record, nor should details of the allegations made against him, because those allegations are no longer pressed by the Commissioner, are sensitive in their nature, and may be result in him being prejudiced, and lead to him suffering embarrassment and reputational damage. As the allegations are no longer pressed by the Commissioner and have not resulted in any adverse findings being made against him by the Tribunal, the Applicant argues that publication should not occur and would not advance the interest of open justice.

Regarding of the previous Tribunal decision.

27. It is to be noted that the previous Tribunal decision has been published for some time, including the Applicant’s name, but with the detailed allegations suppressed. Apart from questions concerning his mental health, the Commissioner did not rely on those allegations in this case. The reasons why is not clear although the effluxion of time seems to have played some role with respect to his health concerns.

28. There is no evidence that the publication of the earlier Tribunal decision, including the Applicant’s name, has led to him suffering any adverse consequences. In those circumstances there is a strong argument that the principle of open justice should prevail. In the course of proceedings relating to the previous decision the Presiding Member made orders under s 59 aimed ensuring the confidentiality and non-publication of certain materials relied on by the Commissioner. There is no suggestion that the Applicant asked the Tribunal to make orders of the nature he now seeks. While the Tribunal does have power to vary or revoke an order made under s 64(1) from time to time (s 64(3)), it must be satisfied that it is desirable to do so at the time it considers doing so, consistently with the section and the authorities outlined above.

29. In the present case I am not persuaded that it is desirable to now stop publication of the previous Tribunal decision and to prohibit its continued publication. I acknowledge the Applicant’s concerns regarding the prospect of damage to reputation or embarrassment by the continued publication of the previous Tribunal decision: concerns that have not come to fruition. I am not persuaded that this makes the making a non-publication with respect to that already published decision desirable.

30. The Applicant’s alternate application with respect to the previous Tribunal decision is that his name be suppressed. In the Tribunal this usually occurs by means of the applicant’s name being anonymised. The Tribunal has a published policy relating to the Publication of Reasons for Decision; NCAT Policy 2 (October 2019). With respect to decision made in the Administrative and Equal Opportunity Division it provides:

“13. The Administrative and Equal Opportunity Division routinely publishes the written reasons for decision, unless the presiding Member has made an order prohibiting or restricting publication.

14. A presiding Member may order, under s 64 of the Act, that a Division decision be published with the names of parties and certain witnesses anonymised.

…

31. With respect to privacy considerations the policy says, among other things, that:

“37. If a party, witness or other person involved in proceedings has privacy concerns regarding information which may be publicly disclosed by the Tribunal, that person should immediately raise those concerns with the Tribunal and, where appropriate, make an application for an order under s 64 of the Act to prohibit the publication of the private or confidential information.

38.   Where possible, such an application or any request to have information anonymised should be in writing and supported by evidence as to why the information is private or confidential and why it should not be disclosed.”

32. As already noted, there is no evidence of the Applicant seeking to have his privacy protected in the previous proceeding. The Presiding Member made no order preventing disclosure of his identity. For the same reasons as those I have given with respect to non-publication of the previous Tribunal decision, I decline to make an order retrospectively varying the confidential orders included of the previous Tribunal decision. I am not persuaded that it is desirable to do so.

Regarding this decision

33. With respect to these reasons, the Applicant argued that both the Commissioner’s initial decision and internal review decisions to refuse his application for a new firearms licence, were based on public interest considerations arising from concerns about his mental health and about allegation regarding his treatment of a family member (personal considerations). The submissions continued:

“Concerns in relation to those personal allegations were effectively    retracted by the Commissioner, by the Reconsideration Decision. It is that retraction which, in turn, form a primary basis upon which the Costs Application has been pressed.”

34. Having read both the initial decision refusing the application for firearms licence and the internal review of that decision, I do not accept that the Applicant’s treatment of a family member played any role in the Commissioner’s decision to refuse him a new firearms licence. That is a matter that was not raised in either of those decisions.

35. The concerns that did motivate those decision were the Applicant’s mental health, the events of 1 July 2021, and the very short time since the Tribunal had affirmed the cancellation decision. They were addressed in the reconsideration decision and satisfied by additional materials provided by the Applicant in the administrative review proceeding, together with the effluxion of time. They resulted in the reconsideration decision granting the Applicant a firearms licence. In those circumstances, I do not accept the Applicant’s submission that the Commissioner necessarily retracted those allegations. The reconsideration is equally consistent with the Commissioner’s concerns regarding whether granting the Applicant a firearms licence was in the public interest being addressed. The Applicant’s submission that the allegations regarding personal considerations had been withdrawn, which was said, in turn, to mean that the principle of open justice would not require publication, consequently fails. I am not satisfied that the allegations relating to the personal considerations were withdrawn. One was never relied on, and the other was addressed to the satisfaction of the Commissioner.

36. The Applicant submitted that if details of the allegations against him were aired in this costs decision, then that would create a chilling effect on future costs applicants, making them reluctant to pursue costs for fear of having allegations, “that may invite discrimination or negative public opinion” publicised. This is purely speculation on the Applicant’s part.

37. The Applicant submitted that should details of the allegations made against him become known – for example by an employer running a background check – then he will, “suffer from a real risk that the publication of the Costs Decision will hinder his employment.” The fact that the Applicant does not point to any such difficulties being experienced since the publication of the previous Tribunal decision, weighs against these concerns. Nonetheless, I am persuaded that publication of details of the allegations made against him when application for a firearms licence was raised, may raise questions regarding the Applicant’s suitability for the type of highly responsible work he does. The fact that the Commissioner’s concerns leading to the refusal have now been addressed, is a factor pointing to public discussion of those concerns being potentially unfair to the Applicant.

38. In those circumstances, I have concluded that it is desirable to make an order that the name of the Applicant in these proceedings not be disclosed or published, and that for the purpose of that order his name in these proceedings be anonymised. Among other things, this should result in there being no obvious connection between these reasons and the previous Tribunal decision. I do not think non-publication is desirable. As far as possible the work of the Tribunal should be open to public scrutiny. The anonymisation of the Applicant’s identity should address his concerns.

39. If the previous Tribunal decision had not already been published for some l time, I may have considered it desirable to take the same course with respect to it. That continuing publication, without apparent incident, persuades me that no further order should be made with respect to the previous Tribunal decision, although no identifying details of that decision should be revealed in this decision. To that end I will make an order that par 13 above not be released to the public or published.

Costs

The Tribunal’s power to award costs in the Administrative and Equal Opportunity Division.

40. Section 60 of the NCAT 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.

(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.

41. In awarding costs under s 60 the Tribunal exercises a discretion, which discretion is to be exercised judicially. In finding special circumstances the Tribunal may have regard to the factors set out in s 60(3), although a positive conclusion with respect to those matters does not necessarily mean that the Tribunal must be satisfied that the special circumstances warrant an award of costs. With respect to special circumstances the Appeal Panel in AIN v Medical Council of New South Wales [2015] NSWCATAP 241 explained:

145. The meaning of the term “special circumstances” has been the subject of several decisions in the Appeal Panel (see for example Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120; Sahade v Owners SP 62022 [2015] NSWCATAP 225; Flat Glass Industries Ltd v MCS Builders Pty Ltd [2015] NSWCATAP 148 and Gaynor v Burns [2015] NSWCATAP 150). Those cases show that the expression “special circumstances” means circumstances which are out of the ordinary but not necessarily extraordinary or exceptional. Of course, each case will depend on its own facts and the Tribunal may “in a structured exercise of discretion, have regard to the criteria in s 60(a)-(g)”: Gaynor v Burns [2015] NSWCATAP 150 at [18].

146. When one has regard to the criteria in s 60(3)(a)-(g) it is clear, in our opinion, that the conduct of a party, including their subjective motives and conduct of the litigation, can be a relevant factor for the Tribunal to take into account. That subjective motive or conduct could be relevant to most of the criteria set out in s 60(3): s 60(3)(a) – whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party; s60(3)(b) – whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; s 60(3)(c) – the relative strengths or weaknesses of the claims of the parties and whether a claim of a party has no tenable basis in fact or law; s 60(3)(e) whether the proceedings were frivolous or vexatious; and s 60(3)(f) – whether a party has failed or refused to comply with the statutory obligation of co-operation imposed by s 36(3) of the Act. Additionally, a party’s subjective motives, conduct or behaviour in relation to proceedings before the Tribunal could be relevant to the undefined “other matters” criteria pursuant to s 60(3)(g).”

42. The objects of the NCAT Act set out in s 3 and the Guiding Principles in s 36 are relevant to the interpretation of the “special circumstances”: Chan v Commissioner for Fair Trading [2015] NSWCATAD 62 at [35] to [38]; BHR and BHS v Biripi Aboriginal (sic) Children's Services (No 2) [2015] NSWCATAD 109 at [29]; Yammatree Pty Ltd (Applicant); North West Local Land Service [2015] NSWCATAD 221 at [12]- [13].

43. In Re Minister for Immigration and Ethnic Affairs, ex part Lai Qin [1997] HCA 6; (1997) 186 CLR 622 (Lai Qin) McHugh J said that, in the absence of a hearing on the merits of a case, “a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order”. That was a case where the usual rule as to costs was that costs follow the event. There was no provision such as s 60 requiring the existence of “special circumstances” before a costs order could be made. In that context Ms Hugh J said [at 7–9]:

“In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd[, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans.

Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in The South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.

If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases.

44. His Honour went on to say at [55]:

“… it is not the function of a court on costs application – in most cases at all events – to make a prediction as to the outcome of a hypothetical case”.

45. In Fitzpatrick Investments Pty Limited v Chief Commissioner of State Revenue [2015] NSWCATAD 103 the Tribunal refused a costs order when an administrative review application, in a lengthy and complex matter, was withdrawn just before the hearing. Senior Member Verick commented:

“58. The final basis on which the Chief Commissioner placed some reliance was the late withdrawal of the application by the Applicant. This was a matter, the Chief Commissioner submitted the Tribunal was required to take into account when considering any other matter the Tribunal considers relevant pursuant to s 60(3)(g). The Tribunal notes with a great deal of interest that matters set in s 60(a) to (f) relate to the procedural aspects of proceedings before the Tribunal but make no mention of withdrawals or settlement of applications.

59. On one view, a withdrawal of a claim or settlement of a claim would, in a real sense, lead to a just, quick and cost effective resolution of the matter. I agree with the submission of the Applicant that the “Applicant’s withdrawal not only saved the Chief Commissioner considerable costs but also gave the Chief Commissioner the result he sought”. I also think that to award costs merely on the late withdrawal of a matter would create a precedent to encourage matters to be finalised by a full hearing rather than resolution by way of a settlement or a withdrawal of an application.”

46. That decision was affirmed in Chief Commissioner of State Revenue v Fitzpatrick Investments Pty Limited [2016] NSWCATAP 91.

47. Burns v Passas [2018] NSWCATAD 247 was an anti-discrimination matter in which the application was withdrawn and dismissed prior to hearing. In considering the respondent’s application for cost the Tribunal explained:

“This matter did not progress to a determination on the merits. The Tribunal will not, therefore have regard to the relative strengths of the claims made by each of the parties, as set out in s60(3)( c ): Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD at [35], [55].”

48. In Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 Payne JA, with whom Meagher JA agreed, said, with respect to a consideration of the conduct of the parties in such circumstances, that, at [30]:

30 If both parties to a proceeding which has been settled without a hearing on the merits have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.

49. Payne JA also found, ay [32], that the approach of the Court when determining the costs issue, of reading more than 200 pages of affidavit evidence in order to do so, was in error. The same points were made by Basten JA at [8]:

8 Secondly, although it is possible to make an order for costs against one party if it can be shown that it has invited the litigation by its unreasonable behaviour, or has unreasonably pursued the litigation, such an order should only be made where that judgment is manifest by reference to known circumstances, not in dispute between the parties. If the question cannot be answered without reviewing large swathes of evidence and resolving, on a tentative basis, disputed questions of fact, the task should not be embarked upon. …

Brief Outline of Costs Submissions

50. The central thrust of the Applicant’s costs submissions, contained in par 25, is that:

“…among other related matters, the ultimate acceptance by the Commissioner that the Internal Review ought to be remitted and the subsequent issuance of the Reconsideration Decision, constitutes special circumstances that warrant an award of costs in this matter.”

51. The Applicant acknowledges that he served new material on the Commissioner in these proceedings on 30 November 2022 - a new medical report and an affidavit from a family member – which led to discussions with the Commissioner and, ultimately, to consent orders being made on 16 December 2022 remitting the internal review for reconsideration. The Applicant, however, argues that all of the material contained in those documents was known to or ascertainable by the Commissioner since at least November 2020. This was when the original decision to revoke the Applicant’s firearms licence was made and before the first administrative review was heard or decided.

52. The Applicant submits that “by refusing the licence application and necessitating the commencement of these proceedings” the Commissioner acted unreasonably. The Commissioner should have paid due consideration to material already in her possession, and [at 33.2] –

“in circumstances where the Commissioner intended to rely on confidential material made necessary enquiries to ensure the reliability of the material in circumstances where the orders sought by the Commissioner effectively denied [the Applicant} an opportunity to do so.”

53. More specifically the Applicant said that the medical report provided by the Applicant in the current proceedings “did not materially depart”, from the report form the same doctor, considered in the previous Tribunal decision. This in turn led to the submissions that the reason for the Applicant being successful on reconsideration was that the Commissioner, “no longer sought to rely on the confidential material” and that the Commissioner “had always been in the possession of material sufficient to alleviate any concerns … with respect to [the Applicant’s] mental health”.

54. With respect to the new material contained in the affidavit from the family member, the applicant contended that the Commissioner could have obtained that information herself, or addressed her concerns to the Applicant before proceedings commenced. The Applicant further submits that by not relying on matters relied on in the original decision, the Commissioner, in her reconsideration decision, abandoned those allegations. Additionally, the Applicant says that by failing to properly consider the material before her the Commissioner as failed to act as a model litigant and prolonged the proceedings and consequent costs.

55. The Commissioner took issue with these propositions’ pointing out that the previous medial report, while generally supportive of the Applicant, had been considered by the Tribunal when it affirmed the revocation of his firearms licence. The new report showed that the doctor has also seen the Applicant on more occasions, over a longer period and was firmer in his conclusions. The Commissioner had not been aware of the contents of the family member’s affidavit until it was produced. The Commissioner submitted that a failure to deal with a concern raised in a previous decision does not mean that it had “effectively withdrawn” that concern.

56. The Applicant says that the Commissioner reconsideration amounts to a capitulation or surrender. He relies on a series of decision in which costs have been ordered where a party has been found to have capitulated and surrendered. All follow the decision in Lai Qin and were made in circumstances where costs follow the event, rather than under s 60 of the NCAT Act. This is not to doubt that surrender or capitulation may be a very real consideration in making a decision as to costs under s 60.

57. The Commissioner denied that it had capitulated, but submitted that the matter had resolved following discussions which led to the consent remission.

58. If successful, the Applicant sought an order for the costs to be fixed, nominating a figure of “approximately $26,054.65” inclusive of GST.

Consideration

59. As this matter never reached a hearing on the merits, I will not have regard to the relative strength of either parties case for the purposes of determining whether special circumstances exist under s 60(1)(c) of the NCAT Act.

60. In accordance with the Court of Appeal decision in Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 I decline to embark on the task of reviewing the swathes of material contained in the Tribunal files, necessary to understand the events in issue, for the purposes of considering whether the Commissioner has acted unreasonably and of resolving factual contests. Those tasks are not ones that the Tribunal should embark on when determining the costs of an administrative review application that has resolved following a remittal and reconsideration by a decision maker. The is even more so where that reconsideration was the result of a consent remittal.

61. Noting that, I am not persuaded that the Commissioner has conducted the proceedings in a way that unnecessarily disadvantaged the Applicant (s 60(1)(a)) or unreasonably prolonged the proceedings (s 60(1)(b)). Indeed the proceedings appear to have proceeded expeditiously through the Tribunal. The fact that the Commissioner was aware of the substance of the medical practitioner’s opinion before making the decision to refuse the Applicant a firearms licence, does not demonstrate that the Commissioner disadvantaged the Applicant. This is so because:

1. the earlier reports were considered by the Tribunal (somewhat favourably to the Applicant) when it affirmed the cancellation decision;

2. the medical practitioner had examined the Applicant on two further occasions when he submitted the last report;

3. the medical practitioner’s last report was clearer; and

4. of the effluxion of time.

62. For the purposes of s 60(1)(d), the proceedings were of moderate difficulty for their type, but not obviously complex.

63. Section 60(1)(e) is not relevant as it is the applicant who is seeking costs.

64. Section 60(1)(f) provides that “whether a party has refused or failed to comply with the duty imposed by section 36(3)” is a factor to which the Tribunal may have regard in determining whether special circumstances exist. Section 36(3) provides:

“Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal—

(a) a party to proceedings in the Tribunal,

(b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.”

65. I am not persuaded that the Commissioner or her legal representatives have failed to assist the Tribunal in facilitating the just, quick and cheap resolution of the real issues in these proceedings, nor has she failed to participate in the Tribunal’s processes or comply with directions.

66. The Applicant argues (in costs submission in reply) that by failing to conduct further investigation into her concerns about him, or to have them addressed in the course of negotiations, the Commissioner did not fulfill her duty as a model litigant to avoid litigation whenever possible. The submissions further argue that that the Commissioner by seeking orders allowing her to withhold confidential materials placed herself in a position whereby she was the only party capable of investigating the veracity of those confidential materials. The Applicant could not do so because he could not see them.

67. This argument fails to acknowledge the reality that by s 59 of the ADR Act the legislature has seen fit provide a mechanism whereby administrative decision makers, such the Commissioner, can apply for orders that she not file materials where (a) they are privileged, or (b) it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document. The fact that the Tribunal made orders under s 59 of the ADR Act is not, in my opinion, a circumstance that constitutes a special circumstance for the purpose of s 60(1)(g) of the NCAT Act. Similarly, I am not persuaded that the Commissioner failed to act as a model litigant in this case.

68. It follows from all of the above, that I am not satisfied that there are in this case special circumstances warranting an award of costs. As a result each party must bear their own costs.

69. I would add that this is not a case in which I would be minded to make an award of cost, should I have found special circumstances. I have been unable to find any case decided in this division where costs have been awarded when administrative review proceedings were resolved, following a remittal and reconsideration. To echo the words of Senior Member Verick in Fitzpatrick Investments Pty Limited v Chief Commissioner of State Revenue [2015] NSWCATAD 103 at [59] making a costs order in a case such as this -

“… would create a precedent to encourage matters to be finalised by a full hearing rather than resolution by way of a settlement or a withdrawal of an application.”

Orders

70. The Tribunal makes the following orders.

1. A hearing with respect to these applications is dispensed with in accordance with s 50(2) of the Civil and Administrative Tribunal Act 2013.

2. The application for a variation of the orders made under s 64 of the Civil and Administrative Tribunal Act 2013 with respect to the previous Tribunal decision described in paragraph 13 of these reasons is dismissed.

3. The Tribunal orders with respect to case file number 2022/00266557:

1. that disclosure and publication of the Applicant’s name be prohibited under s 64 of the Civil and Administrative Tribunal Act 2013 and directs that the Applicant’s name be anonymised for the purpose of these proceedings; and

2. that paragraph 13 of these reasons marked [NOT FOR PUBLICATION] is not to be published or released to the public.

4. That each party bear their own costs of the proceedings

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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

Amendments

10 May 2023 - Typographical error corrected in paragraph 61 and Legal Representative corrected on coversheet

Decision last updated: 10 May 2023