Mercer v Commissioner of Police, NSW Police (No 3)

[2007] NSWADT 254

CITATION:	Mercer v Commissioner of Police, NSW Police (No 3) [2007] NSWADT 254
DIVISION:	General Division
PARTIES:	APPLICANT Adam Mercer RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	053384
HEARING DATES:	4 May 2007
SUBMISSIONS CLOSED:	4 May 2007
DATE OF DECISION:	19 October 2007
BEFORE:	Leal S - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996
CASES CITED:	Brooks Maher v Cheung [2001] NSWADT 18 Director General, Department of Education and Training v Simpson [2001] NSWADTAP 6 Hurt v Director General, Department of Fair Trading [1999] NSWADT 50 Hutchings Electrical v Director General, Department of Fair Trading (No 2) [2002] NSWADT 255 McCabe (No 2) v Electoral Commissioner, State Electoral Office [2003] NSWADT 58 Mercer v Commissioner of Police, NSW Police (No 2) [2007] NSWADT 250
REPRESENTATION:	APPLICANT G Sundstrom, barrister RESPONDENT W Pisani, solicitor
ORDERS:	1. The applicant’s application for costs is dismissed; 2. The respondent’s application for costs is also dismissed

Introduction

1 Mr Adam Mercer has made an application for costs against the respondent, the Commissioner of Police. The Commissioner of Police had made a similar application against Mr Mercer.

2 On 15 October 2007, the Tribunal handed down a decision in the substantive matter: Mercer v Commissioner of Police, NSW Police (No 2) [2007] NSWADT 250. In this decision, I affirmed the decision of the Commissioner of Police to revoke Mr Mercer’s firearms licence.

Relevant law

3 The Tribunal has no inherent power to make an order for costs. Its power to award costs in applications for review of an administrative decision is entirely derived from s.88(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act). That section does not give the Tribunal an unfettered discretion to award costs as apply in judicial proceedings, namely costs following the event, where, as a general rule, the successful party is entitled to an order for costs in respect of the proceedings.

4 As has been highlighted by numerous decisions of the Tribunal, s. 88 of the ADT Act only gives the Tribunal power to award costs where it is satisfied that the matter before it gives rise to “special circumstances” that warrant an award of costs. (Hurt v Director General, Department of Fair Trading [1999] NSWADT 50 at [9] and McCabe (No 2) v Electoral Commissioner, State Electoral Office [2003] NSWADT 58 at [6]). That is, something more than mere success is required. (Brooks Maher v Cheung [2001] NSWADT 18 at [11] and Director General, Department of Education and Training v Simpson [2001] NSWADTAP 6 at [6])

5 It has also been held that the fact that the Tribunal did not agree with the administrator’s decision is not sufficient to constitute special circumstances for the purpose of s. 88(1) of the ADT Act. (Hutchings Electrical v Director General, Department of Fair Trading (No 2) [2002] NSWADT 255 at [18])

6 On 9 October 2006, the Tribunal issued a Practice Note in respect of costs (Practice Note No 12). That Note emphasises that in proceedings for review of a reviewable decision ‘costs can only be ordered in special circumstances’ (at [4]). The Practice Note also sets out, by way of example, circumstances that may be special and justify a costs order (at [ 2]). These emphasise circumstances where one party’s conduct in the proceedings has placed the other party at an unfair disadvantage.

Special circumstances

7 The threshold question, then, is whether there are special circumstances in this matter which warrant an award of costs.

8 At the hearing of this matter on 23 September 2004, the Commissioner of Police made an application for costs in relation to the issuing of a summons by Mr Mercer to seek the attendance at hearing for cross-examination of the maker of the internal review decision (Mr Richmond of the Firearms Registry).

9 On 4 December 2005, the appeal panel of this Tribunal allowed the appeal by the Commissioner of Police in relation to the decision by the Tribunal to set aside the decision to revoke Mr Mercer’s licence. In its decision, the appeal panel made the following remarks in relation to the costs application made by the Commissioner of Police:

The Commissioner made an application for costs at the hearing on 23 September 2004. That does not appear to have been dealt with. Accordingly, that application forms part of the remittal of these proceedings.

We also take this opportunity to note that it is difficult to see what possible justification there can be for summonsing an internal review decision-maker. The decision-maker’s reasons are exposed. The Tribunal has them for information. The Tribunal’s duty is to make a fresh decision. It should have no need to hear from the internal review decision-maker.

10 On 17 March 2006, the hearing in this matter was adjourned due to the unavailability of a witness called by the Commissioner of Police. Mr Mercer is claiming costs for attending the Tribunal on this date. Mr Sundstrom, for Mr Mercer, submitted to the Tribunal that any costs order made in favour of the Commissioner of Police should be counter-balanced by the detriment caused to Mr Mercer by the failure of the respondent’s witness to attend the Tribunal hearing on 17 March 2006.

11 In response, the Commissioner of Police submitted that Mr Mercer could have used the hearing time on 17 March 2006 to have given evidence himself on that day.

12 Mr Sundstrom further submitted that Mr Mercer had been disadvantaged by the time spent in the Tribunal on 19 May 2006 in hearing argument from the respondent in relation to whether confidential material should be accepted into evidence and by the subsequent preparation of written submissions in relation to this issue. Mr Sundstrom submitted that the application to allow confidential material into evidence should have been brought by the respondent at an earlier opportunity.

13 The event giving rise to the subsequent revocation of Mr Mercer’s firearms licence took place on 22 October 2002. The matter was heard by this Tribunal and the decision of the Tribunal (differently constituted) set aside by the Appeal Panel on 14 November 2005. The matter has now been re-heard and a fresh decision by this Tribunal was made on 15 October 2007.

14 It has been, therefore, a complex and lengthy matter. I accept that the matter has been delayed and both parties have been inconvenienced as a result of circumstances brought about by the other party: the Commissioner of Police by the time spent as a consequence of Mr Mercer’s summonsing of the internal reviewer of the matter and Mr Mercer by the failure of a witness for the Commissioner of Police to attend the Tribunal hearing on 17 March 2006 and by a late application by the Commissioner of Police to have confidential material accepted into evidence by the Tribunal.

15 I am not, however, satisfied that, on these occasions, either party acted in order to deliberately disadvantage the other party to the proceedings. I find that find that none of the conduct described above is such as to give rise to a finding of special circumstances in accordance with s88 of the Act.

Order

16 Accordingly, the Tribunal orders that Mr Mercer’s application for costs is dismissed. The Tribunal further orders that the application for costs by the Commissioner for Police is dismissed.