Hardy v Commissioner of Police, NSW Police

[2007] NSWADT 73

CITATION:	Hardy v Commissioner of Police, NSW Police [2007] NSWADT 73
DIVISION:	General Division
PARTIES:	APPLICANT Shane Victor Hardy RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	043383
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10 October 2006
DATE OF DECISION:	4 April 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996
CASES CITED:	Brooks Maher v Cheung [2001] NSWADT 18 Commissioner of Police, New South Wales Police Service v Brett [2002] NSWADTAP 34 Gizah Pty Ltd v AXA Trustees Ltd (no.2) [2001] NSWADT 164 Hutchings Electrical v Director-General Department of Fair Trading (no.2) [2002] NSWADT 255 Raethel v Director-General, Department of Education & Training [2000] NSWADT 56 YG & GG v Minister for Community Services [2002] NSWCA 247
REPRESENTATION:	APPLICANT A Irving, solicitor RESPONDENT W Pisani, agent
ORDERS:	The applicant's application for costs is dismissed

Background to costs application

1 Shane Hardy (‘the applicant’) has made an application for costs in respect of his application seeking review of a decision of a delegate of the Commissioner of Police (‘the respondent’) to revoke his firearms license pursuant to s.24 of the Firearms Act 1996. The decision was an internal review determination and was made on 27 October 2004 and the grounds relied on by the respondent were as follows:

(a) it was not in the public interest for the applicant to continue to hold his license: see s.24(2)(a) of the Firearms Act 1996 and cl.17 of the Firearms (General) Regulations 1997; and

(b) the applicant ceased to have a genuine need for possessing or using the firearm: see s.24(2)(a) and 12(4) of the Firearms Act 1996 and cl.12 of the Firearms Regulation 1997.

2 The factual basis relied on by the respondent were numerous incidents where the applicant had come to the attention of the NSW Police and the fact that the applicant had changed his address from his horse stud property to an address in the nearby town and that he had done so without advising the Firearms Registry. In respect to the incidents of which the NSW Police became aware, these primarily related to two charges of assault, one involving the applicant’s former wife and the other involving Peter Payne (both charges were dismissed), two interim apprehended violence orders that had been made against the applicant as a result of complaints by his adopted daughter, Rachel Hardy, and Peter Payne and two interim apprehended violence orders that were made for the protection of the applicant. With the exception of the charge of assault on his former wife, the events all occurred during 2003 and 2004. The assault on his former wife occurred in 2000.

3 Even though the applicant had lodged his application with the Tribunal on 1 December 2004, the matter did not progress for almost 12 months at the request of the applicant and with the consent of the respondent. In the latter part of 2005 the respondent filed and served the evidence he proposed to rely on to support his contention that his decision was the correct and preferred decision. This evidence consisted of eight NSW COPS reports. The applicant challenged the admissibility of this material and by consent this issue was determined as a preliminary matter: see Hardy v Commissioner of Police, NSW Police Service [2006] NSWADT 167. The Tribunal found that the respondent was at liberty to put these reports before the Tribunal.

4 The application was then listed for a two day hearing in Muswellbrook on 9 and 10 August 2006. The respondent also indicated that he was not proposing to call any other evidence at the hearing.

5 Prior to the hearing, the applicant sought the issue of several summons for particular police officers to attend the hearing for the purpose of evidence. These officers all attended the hearing and gave evidence. The applicant, the applicant’s solicitor, the applicant’s daughter and the sister of Rachel Hardy also gave evidence at the hearing. In addition to this the applicant tendered into evidence several documents, including statements and other material.

6 At the conclusion of the second day of hearing I indicated to the parties that on the basis of the evidence that had been given I had formed a preliminary view that the applicant did not pose a risk to the public if his firearms licence was restored. I also noted that there remained the additional issue as to the applicant’s need for a firearms licence and I made directions for the filing and serving of evidence and submissions in regard to both matters. Following the filing and serving of additional evidence by the applicant, on 12 September 2006, by consent the Tribunal made an order setting aside the respondent’s decision to revoke the applicant’s firearms licence. At the same time the applicant made an application for costs and the Tribunal made orders in respect to the filing and serving written submissions in this regard.

Principles governing costs

7 The Tribunal has no inherent power to award costs however, it has been given such a power under s.88 of the Administrative Decisions Tribunal Act 1997 (‘ADT Act’). It is a discretionary power but it can only be exercised where the Tribunal is satisfied that there are ‘special circumstances’ warranting an award of costs. This means that in order to obtain a cost order an applicant has two hurdles to overcome. The first being able to identify ‘special circumstances’ and the second being able to show that the ‘special circumstances’ warranted an award of costs: see Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 at [29].

8 ‘Special circumstances’ have been defined as ‘circumstances that are out of the ordinary, but without having to be extraordinary or exceptional’. It is well established that mere success in a review application does not constitute special circumstances: see Brooks Maher v Cheung [2001] NSWADT 18 at [11] and Hutchings Electrical v Director General, Department of Fair Trading (No. 2) [2002] NSWADT 255 at [18]. In Brooks the Tribunal noted that while the circumstances which would or would not warrant an award of costs could not be exhaustively listed, ‘…where one party causes another party to incur costs because of unreasonable delays, or by making misconceived, frivolous, vexatious or insubstantial procedural or substantive applications, an award of costs may be warranted’.

9 The power to order costs should not be used as ‘some kind of sanction to punish agencies for poor administration’, and the Tribunal should not embark on ‘a general enquiry into the way in which the agency dealt with the Applicant’: Raethel v Director-General, Department of Education & Training [2000] NSWADT 56 at [56] – [58].

10 Set out in Practice Note 12 (reissued on 11 May 2005) concerning costs, are the following examples of ‘special circumstances’ which may warrant an order for costs under s.88(1) of the ADT Act:

‘Whether a party has conducted the proceedings in the way that disadvantaged another party to the proceedings by conduct such as:

(i) failure to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceedings;

(vii) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; and

(viii) 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.’

11 It is the applicant’s contention that the ‘exceptional circumstances’ that warranted an order for costs in this application are as follows:

(a) the evidence relied on by the respondent could not support the making of the order (ie internal review determination);

(b) the respondent failed to have regard to all of the evidence; and

(c) the decision of the respondent was manifestly against the weight of evidence ‘such as to indicate bias on the part of the decision maker.’

12 The essence of the applicant’s contention is that the applicant was put to the cost of producing evidence to the Tribunal which explained or contradicted the matters identified in the eight COPS reports, when this evidence was at all times known or available to the respondent. The applicant went on to assert that the respondent had deliberately selectively relied on the COPS reports and disregarded the other relevant material in his possession such as the inconsistent statements of Rachel Hardy and the applicant’s allegation that he had had extortion threats made to him by Rachel Hardy and Peter Payne.

13 In summary, it was the applicant’s contention that the respondent had, in this application, persisted with a wholly unmeritorious position in that he sought to argue that the decision under review was the correct and preferred decision when he knew it could not, on the material available to him, be supported.

The Respondent’s contentions

14 The respondent contended that the hearing of this application did not give rise to special circumstances that warranted the making of a cost order. In this regard the respondent contended that the material relied on by the applicant at the hearing had not been filed within a timely manner and that the circumstances of the applicant had significantly changed at the time of the hearing to that which applied in 2004 when the decision to revoke his firearms licence was made. The respondent also contended that at the conclusion of the hearing there remained a live issue in respect to the applicant’s need for a firearm licence.

Consideration

15 I have examined all the material that has been placed before the Tribunal and in my opinion, for the reasons set out below, the conduct of the respondent, when examined as a whole, does not give rise to special circumstances that warrant a cost order.

16 While it’s consideration as to whether a cost order should be made, is not usual for the Tribunal to have regard to the history of an application for review of a decision prior to the time of its lodgement in the Tribunal (see Director General, Department of Education & Training v Simpson (GD) [2001] NSWADTAP 6), in my view this is an application where it is appropriate to do so as it provides some understanding of the position adopted by the applicant.

17 The original decision of the respondent was made on 7 September 2004. The grounds relied on were in essence the same as those relied on by the delegate making the internal review determination. However, the factual basis relied on were described as follows:

‘Notwithstanding that six interim Apprehended Violence Orders taken out against you did not proceed, concerns are held regarding facts surrounding other events , which indicate that you have difficulty controlling your anger and that you react with violence when angry. As such, I am satisfied that it would not be in the public interest for you to continue to hold a licence authorising the possession and use of firearms.

In addition, your application was marked for the genuine reason of Primary production. However, you no longer reside at the address marked to support this reason.’ (emphasis added)

18 In my opinion, this explanation as to the substantive facts on which the decision had been made was not only incorrect but also totally inadequate. Where the respondent has relied on specific incidents in arriving at his decision to cancel a firearms licence then, subject to any contrary law, in my opinion the relevant details of these incidents must be included in the statement of reasons. As demonstrated in the history of this application, a failure to do so means that the licence holder is unaware of the allegations he is required to respond to when making an internal review request and it can invoke a sense of distrust of the motivation of the decision maker.

19 In this application, on 27 September 2004, the applicant made an internal review application through his solicitors. In that request the following matters were drawn to the respondent’s attention:

(a) the applicant had only been the subject of two interim apprehended violence orders and of these, the first interim order had been dismissed when the relevant police officer and the complainant failed to attend Court. In respect to the second order, the applicant had voluntarily provided a statement to the Police in which he provided an alibi as to the alleged incident on which the order was made;

(b) the applicant’s change of address did not alter the applicant’s involvement in primary production as he continued to breed thoroughbred horses which he had on agistment on a rural property nearby. It was also pointed out that, to the knowledge of the local Police, the applicant had sold his former property due to threats he had received in the mail that his horses would be poisoned;

(c) the failure by the delegate to take into account an alleged extortion attempt by a Peter Payne on the applicant as reported by the applicant to Police in October 2003 and the fact that subsequent assault charges laid against the applicant on the basis of a complaint by Peter Payne had been dismissed; and

(d) the applicant had been denied procedural fairness as the reasons for decision had failed to identify the substance of the ‘other events’.

20 In the 27 October 2004 internal review reasons for decision, for the first time, the respondent provided a comprehensive history of the various factual matters relied on and in doing so acknowledged that there were in fact only two interim apprehended violence orders that had been made against the applicant. It is unnecessary to repeat these incidents and the others relied on by the respondent in reaching his internal review determination. However, the conclusions reached by the respondent in respect to these was set out at page 8 of the reasons are as follows:

‘I note your legal representative’s submission that the AVOs against you were malicious. However, I find no evidence to support this contention. Clearly from the AVOs sought, there is reasonable cause to believe that people you are involved with you either fear you or you fear them. It is my opinion that access to firearms under these circumstances may pose a risk to public safety.’

21 In regard to the issue of genuine reason for a firearm, the delegate rejected the material provided by the applicant in support of his contention that he continued to be a primary producer. That rejection was made on the basis that the contract of sale in which the applicant’s daughter and husband became the purchaser of a rural property failed to evidence the fact that the applicant was involved in stud farming on that property.

22 While I had made a preliminary finding in respect to the issue as to whether the applicant posed a risk to public safety which was contrary to that of the respondent set out above, these findings were made on the basis of the material and evidence given before me at the hearing. A large measure of that material was not provided to the respondent prior to that date. As explained above, that hearing did not occur for almost 2 years after the decision of the respondent had been made. It is well established that this was the relevant date for the determination as to whether the respondent’s decision was the correct and preferred decision: see YG & GG v Minister for Community Services [2002] NSWCA 247 at [25] and Commissioner of Police, New South Wales Police Service v Brett [2002] NSWADTAP 34 at [44]. The relevant date was not 27 September 2004.

23 While I accept that the some of the material the applicant provided to the Tribunal at the hearing was material already held by the NSW Police and this material cast doubt on some of the asserted facts contained in the COPS reports, it is also apparent that this material was being kept at different NSW Police Stations. The evidence of the applicant and his witnesses was also information that was unavailable to the respondent prior to the hearing.

24 I can also understand the applicant’s sense of frustration when the NSW Police failed to act on his complaints of extortion. This sense of frustration was justifiably enflamed when he received the original notice of cancellation. The applicant had clearly been experiencing difficult times personally.

25 On the other hand, I do not find that there is any material before the Tribunal to indicate that the respondent was biased or conducted these proceedings vexatiously or made claims for which there was no tenable basis in fact. The information concerning the apprehended violence orders was information the respondent could not ignore: see s.22, 23 and 24 of the Firearms Act 1997. My only criticism is that the original reasons for decision of the respondent were clearly inadequate. However, this of itself will not necessarily warrant an order for costs. The question is whether this inadequacy was such that it caused the applicant to incur unnecessary costs in these proceedings. For the reasons set out below, in my opinion it did not.

26 At all times it was a matter for the applicant and the respondent to determine how best to conduct their respective cases. The respondent was not bound to call witnesses and he chose not to and relied on the contents of the COPS reports. However, what weight was to be put on the matters asserted in the reports was a matter for determination by the Tribunal having regard to all the material before it.

27 Throughout the applicant was legally represented and chose to present his evidence at the hearing. This was an acceptable approach but as mentioned above, the mere fact that the applicant was successful in having the decision of the respondent set aside is not enough to constitute special circumstances that warrant an order for costs. There is no material before the Tribunal to indicate that, prior to the hearing, the applicant presented this material to the respondent with a view that he re-consider his position in light of this material. What is clear is that the applicant regarded these proceedings as if they were formal in nature with there being an onus of proof, if not on the respondent then on the applicant. This is incorrect.

28 Accordingly, for the reasons set out above, the Tribunal orders that the applicant’s application for costs is dismissed.