Marksman Training Systems Pty Ltd v Registrar of Firearms (No 5)

[2017] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

MARKSMAN TRAINING SYSTEMS PTY LTD v REGISTRAR OF FIREARMS (No 5)

[2017] SADC 15

Judgment of His Honour Judge Tilmouth

23 February 2016

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS

Application by successful appellant for costs refused pursuant to s 42G of the District Court Act.

District Court Act 1991 (SA) s 42G, s 42G(2); Allesch v Maunz (2000) 203 CLR 172; Marksman Training Systems Pty Ltd v Registrar of Firearms (No 3) [2015] SADC 16; Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72, referred to.

MARKSMAN TRAINING SYSTEMS PTY LTD v REGISTRAR OF FIREARMS (No 5)
[2017] SADC 15

Application for Costs

1. There remains for deliberation an extant application for costs brought on behalf of the successful appellant (Marksman) in applications for the review of two decisions of the Registrar of Firearms (the Registrar) made on 8 April 2013.

2. After lengthy and protracted hearings including a Full Court appeal, orders were ultimately made on 15 December 2016 allowing the appeals, rescinding the Registrar’s decisions to cancel Marksman’s dealers and range firearms licenses, and ordering the licences be reinstated.[1]

   [1]    Marksman Training Systems Pty Ltd v Registrar of Firearms (No. 4) [2016] SADC 154 (Judgment 4).

3. The present application for costs is confined to the hearing in the District Court on 15 December 2016.  The parties agreed to deal with this issue by way of written submissions, which were filed earlier this year.  The application occurs against the background of orders initially made in the appeal, that Marksman should have its costs of two days of the appeal in the District Court, for reasons given in a judgment delivered at that time.[2]  That order was however subsumed by an order of the Full Court requiring the Registrar to pay the costs and disbursements of Marksman fixed at $20,000.  This was in respect of the appeals to it and in the District Court, up to and including 22 July 2016, that being the date upon which the Full Court allowed the Registrar’s appeals.[3]

   [2]    Marksman Training Systems Pty Ltd v Registrar of Firearms (No.3) [2015] SADC 16, [26] and [32] (Judgment 3).

   [3]    Registrar of Firearms v Marksman Training Systems Pty Ltd (No.2) [2016] SASCFC 72 (Full Court Judgment).

   The Further Application for Costs

4. Marksman seeks an order for costs in its favour on a solicitor client basis to ‘appropriately reflect the interests of justice’.  Its submission focusses on the ‘change of tact’ taken by the Registrar in the Full Court, which it claims was ‘the sole cause of the present need for a further hearing’, and thus unnecessarily incurring further costs.[4]  The circumstances of the Registrar’s conduct of the appeal to the Full Court can be found in a fourth judgment.[5]

   [4]    Marksman Training Systems Pty Ltd written submissions for hearing on 21 November 2016, [65-68].

   [5]    Judgment 4, [7].

5. In its further written submissions filed recently, Marksman points out that the Registrar’s contention that conditions on reinstatement of the licences should be imposed was rejected, as was its contention that ‘gross negligence’ on the part of Marksman was established in the conduct of its Firearms licences.  So much may be accepted.  In the latter respect, I was not prepared to go that far, but did nonetheless make the observation that the proven breaches of the firearms regime by Marksman, were ‘very serious indeed’.[6]

   [6]    Judgment 4, [43].

6. For his part the Registrar emphasises the fair concession that there were ‘cogent reasons’ to depart from his decisions.  This was found to be an entirely appropriate concession.[7]  The Registrar further points out that Marksman was aware of his revised attitude by 7 November 2016, so that the subsequent hearing on 21 November 2016 was confined to the narrow issues of license conditions and clarification of findings with respect to the culpability of Marksman.

   [7] Judgment 4, [9] and [34].

   Costs – Statutory context

7. The enquiry must begin with the terms of the statutory remit residing in s 42G of the District Court Act 1991 (SA). This provides:

   42G—Costs and ancillary orders etc. on appeals

   …

   (2)However, no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice.

8. As I pointed out previously, it is ‘obvious that the primary import of s 42G(2) of the District Court Act is to do away with the ordinary rule that costs follow the event’.[8]  The practice of the Court essentially requires the emergence of an unusual or out of the ordinary feature of the contest justifying an award for costs in the interests of justice under this section.[9]

   [8]    Judgment No 3, [16].

   [9] Judgment No 3, [18]-[19].

   Costs - analysis

9. In this particular situation the order for re-hearing was one made by the Full Court.  Irrespective of the merits of the attitude taken by the Registrar in the Full Court, that aspect of the proceedings was essentially resolved by the costs order made by the Full Court itself.  Still further, the contention that the Registrar’s change of tactic was the ‘sole cause’ of a further hearing, contains an unstated and unsubstantiated assumption.  The assumption is that the outcome of the Full Court appeal would otherwise have been favourable to Marksman.  Whilst jurisdictional error has no role to play in appeals outside the purview of administrative law,[10] legal and factual error certainly does: Allesch v Maunz.[11]  In essence the decision of the Full Court was based upon the conclusion that there was demonstrated failure to take into account a material consideration, namely the reasons of the Firearms Review Committee.[12]  For that reason alone, the premise that there would be no need for a further hearing cannot be sustained.

   [10] Judgment 4, [7]-[8], Peek J, Full Court Judgment, [88]-[90].

   [11] (2000) 203 CLR 172, [23].

   [12] Full Court Judgment [316], Peek J in dissent, [40]-[41], [53]-[54], [80], [245].

10. So far as the further hearing in the District Court is concerned, it was relatively short.  Proceedings were confined to the two narrow issues referred to earlier.  As pointed out above, there was a distinct finding that it was a not an unreasonable position for the Registrar to concede the existence of ‘cogent reasons’.

    Conclusion and orders

11. In the above circumstances, there is an insufficient basis upon which to make an exemptive order for costs in favour of Marksman.  The further application for an order for costs is therefore refused.

12. The formal order of the court is that there be no order as to costs of and incidental to the proceedings in the District Court after 22 July 2016.