KIFER and COMMISSIONER OF POLICE
[2005] WASAT 270
•4 OCTOBER 2005
KIFER and COMMISSIONER OF POLICE [2005] WASAT 270
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 270 | |
| FIREARMS ACT 1973 (WA) | |||
| Case No: | CC:42001/2004 | DETERMINED ON THE PAPERS | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 4/10/05 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | JOSIP KIFER COMMISSIONER OF POLICE |
Catchwords: | Application for costs Respondent not contesting merits and issuing licence voluntarily Exercise of discretion |
Legislation: | Firearms Act 1973 (WA) State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(4), s 88(3) |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIREARMS ACT 1973 (WA) CITATION : KIFER and COMMISSIONER OF POLICE [2005] WASAT 270 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 4 OCTOBER 2005 FILE NO/S : CC 42001 of 2004 BETWEEN : JOSIP KIFER
- Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Application for costs - Respondent not contesting merits and issuing licence voluntarily - Exercise of discretion
Legislation:
Firearms Act 1973 (WA)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(4), s 88(3)
Result:
Application granted
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr R Williamson
Respondent : Mr M Lynch
Solicitors:
Applicant : Williamson & Co
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
The application
1 The applicant applied for the review of a decision by the respondent refusing an application for a fire-arm licence.
2 An appeal was commenced against the decision in the Court of Petty Sessions on 24 November 2004. It was subsequently transferred to the State Administrative Tribunal pursuant to the transitional provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
3 The respondent failed to appear at an initial directions hearing set down for 27 May 2005. At a subsequent directions hearing on 30 June 2005, Mr M Lynch appeared for the respondent. The Tribunal was informed that the respondent was likely to concede the review. By consent the directions hearing was adjourned to 11 August 2005.
4 There was no appearance for the respondent on 11 August 2005 but Mr Williamson, who appeared for the applicant advised the Tribunal that the fire-arm licence sought by the applicant had in the interim been issued by the respondent. Mr Williamson applied for costs to be awarded to the applicant.
5 The Tribunal issued directions for the applicant to file and serve written submissions in support of the application, setting out the amount of costs claimed and for the respondent to file and serve any written submissions in opposition. It was directed that the application would be determined on the papers.
6 The applicant's submissions were received by the Tribunal on 12 August 2005. No submissions were received from the respondent.
7 It was submitted on behalf of the applicant that the respondent had not genuinely attempted to make a decision on the merits. The total costs sought was in amount of $1614. The breakdown of that amount is referred to further below.
Considerations
8 The references hereafter are all to sections of the SAT Act.
9 In considering an application for costs, the effect of s 87(1) is that the starting point is that unless the SAT Act, the enabling act or an order of
(Page 4)
- the Tribunal specifies, each party should bear their own costs in a proceeding of the Tribunal.
10 That notwithstanding, a general discretion rests with the Tribunal under s 87(2) to make an order for the payment by a party of all or any of the costs of another party unless otherwise specified in the enabling act.
11 By s 87(4), where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to whether the party bringing the proceedings genuinely attempted to enable and assist the decision-maker to make a decision on its merits and whether the decision-maker genuinely attempted to make a decision on its merits. The Tribunal is precluded by s 88(3) from making an order that all or any of the costs of a proceeding be paid by a party unless, relevantly, s 87(4) applies to the party.
12 The Tribunal has very little information before it on which to arrive at a decision in relation to whether the respondent genuinely attempted to make a decision on the merits of this matter. But, at the end of the day, the applicant's assertions have not been rebutted and without any explanation to the Tribunal the respondent has issued the licence sought by the applicant.
13 In these circumstances, the Tribunal concludes that there is a sufficient basis upon which to conclude that the respondent did not genuinely attempt to make a decision on the merits, and finds accordingly.
14 The Tribunal has determined to fix the amount of the costs to be paid by the respondent to the applicant. Set out below is the amount claimed by the applicant, and set out against each amount claimed, the amount which the Tribunal has determined should be allowed as a fair and reasonable cost.
(Page 5)
Particulars | Amount Claimed ($) | Amount Allowed ($) |
| 300.00 | 75.00 |
| 150.00 | 120.00 |
| 150.00 | 60.00 |
| 200.00 | 150.00 |
| 200.00 | 150.00 |
| 200.00 | 150.00 |
| 350.00 | 240.00 |
| 64.00 | 64.00 |
| 1614.00 | 1009.00 |
15 As set out in the applicant's submission there is no order required in respect of the substantive application. The Tribunal accordingly orders as follows:
Order
1. The respondent is ordered to pay to the applicant within 28 days of the date of this order, the applicant's costs of and incidental to the proceedings under application CC 42001/2004 fixed in the sum of $1009.
2. The application is otherwise withdrawn.
(Page 6)
I certify that this and the preceding [15] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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