Balodis v Registrar of Firearms - [2018] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Permission to Appeal)
BALODIS v REGISTRAR OF FIREARMS
[2018] SASC 126
Judgment of Judge Dart a Master of the Supreme Court
5 September 2018
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT - SCOPE AND EFFECT OF APPEAL
Application for leave to appeal under s 71 of the South Australian Civil and Administrative Tribunal Act 2013 against orders made in that Tribunal - whether grounds of appeal reasonably arguable - application considered in chambers on the papers.
Held: Application for leave to appeal refused.
South Australian Civil and Administrative Tribunal Act 2013 s 71; Firearms Act 2015 s 15; Supreme Court Civil Rules 2006 r 292, referred to.
De Mills v South Australian Housing Trust [2017] SASCFC 85; Angas Park Cellars Pty Ltd v Nuriootpa Wine Inn Motel [2000] SASC 130, considered.

BALODIS v REGISTRAR OF FIREARMS
[2018] SASC 126
JUDGE DART:

These reasons deal with an application by the appellant for leave to appeal from a decision made in the South Australian Civil and Administrative Tribunal (“the Tribunal”) on 16 April 2018. A Notice of Appeal was filed on 5 June 2018.
The decision in question was made by an Executive Senior Member of the Tribunal. An appeal from a decision of an Executive Senior Member of the Tribunal proceeds to a single Justice of the Supreme Court.[1] Such an appeal requires leave of this Court to proceed.[2] An application for leave to appeal to a single Justice from the Tribunal is to be heard and determined in the first instance by a Master.[3] The Civil Rules use the term “permission” rather than “leave”. The use of different terminology has no practical consequence.
[1]    South Australian Civil and Administrative Tribunal Act 2013 s 71(1)(b).
[2]    South Australian Civil and Administrative Tribunal Act 2013 s 71(2).
[3]    Supreme Court Civil Rules 2006 r 292(2A).
The imposition, by Parliament, of a limitation on the right to appeal to this Court evinces an intention that, usually, the Tribunal will be the final decision maker.
The requirement to obtain leave to appeal provides the Court with control over its own processes and should mean that only matters deserving of a re‑hearing proceed. A grant of leave involves the exercise of a discretion in the interests of justice. It is not possible to fully define all the facts and circumstances which might justify a grant of leave to appeal. However, it might be expected that the exercise of the discretion will usually involve consideration of whether the Tribunal decision contains any apparent error, and/or whether the issue to be raised on the appeal is a matter of some general importance.[4]
[4] De Mills v South Australian Housing Trust [2017] SASCFC 85.
The first step in the consideration of whether leave should be granted is to consider whether the grounds of appeal are reasonably arguable.[5] If that step is not satisfied, there is no need to consider the other relevant discretionary factors. If the grounds of appeal are arguable, it is necessary to consider whether the grounds raise matters of sufficient interest to justify an appeal and also the question of what prejudice would be suffered by the appellant if leave is not granted.
[5] Angas Park Cellars Pty Ltd v Nuriootpa Wine Inn Motel [2000] SASC 130.
There is no formal application for leave. I have treated the Notice of Appeal as containing an application for leave. It is usual to consider an application for leave to appeal on the papers. I have done so. For the reasons that follow, it is not appropriate to grant leave to appeal.
Background
The appellant held a firearms licence between 1980 and 2011 under the Firearms Act 1977. The licence was cancelled in 2011 following convictions for breaches of that Act. The 1977 Act was replaced by the Firearms Act 2015 (“the Act”), which came in to force on 1 July 2017.
In August 2016 the appellant applied to the Registrar of Firearms for a firearms licence. A delegate of the Registrar considered the application and refused it on 18 January 2017. The application was refused on the ground that the appellant was not a fit and proper person to hold a firearms licence.
The appellant sought a review of the refusal in the Tribunal. The review was conducted on the merits of the application. It proceeded in accordance with the law at the time of the review, which meant the application was considered in light of the provisions of the Act.
The Act provides that the Registrar may refuse an application for a firearms licence if the Registrar is not satisfied that an applicant is a fit and proper person to hold a licence.[6]
[6] Firearms Act 2015 s 15(1).
A definition of a “fit and proper person” is provided in the Act. Section 7(3) provides as follows:
7—Fit and proper person
(3)A person may be taken not to be a fit and proper person for a purpose under this Act if the person—
(a)has not complied with the requirements of this Act in relation to the safe handling, use, storage or transport of firearms; or
(b)has been found guilty of an offence under this Act, the repealed Act or corresponding legislation of another State or Territory of the Commonwealth; or
(c)has been found guilty of an offence involving actual or threatened violence in South Australia or any other State or Territory of the Commonwealth or in any other part of the world; or
(d)has been found guilty of an offence as prescribed by the regulations; or
(e)has been found guilty of fraud or deception for the purpose of obtaining a licence or permit under this Act or under corresponding legislation of another State or Territory of the Commonwealth; or
(f)is the subject, or has in the past been the subject, of—
(i)an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 or any other order of a similar nature made by a court whether in this State or any other State or Territory of the Commonwealth; or
(ii)a foreign restraining order; or
(g)has failed to comply with a requirement made under section 53.
(4)In deciding whether a person is a fit and proper person for a purpose under this Act—
(a)regard may be had to the reputation, honesty and integrity of the person, close associates of the person and any people with whom the person associates; and
(b)regard must be had to—
(i)any risk of the person using a firearm for an unlawful purpose; or
(ii)any risk of the person using a firearm to harm himself or herself; or
(iii)any risk that the person will cause injury or harm to another by the use or threatened use of a firearm; or
(iv)any risk of the person failing to exercise continuous and responsible control over a firearm,
and, in that connection, regard may be had to the person's past behaviour, instability, intemperate habits, way of living or domestic circumstances.
(7)This section does not limit the grounds on which a person may be taken not to be a fit and proper person for a purpose under this Act.
The appellant has been convicted on a number of occasions for breaches of firearms legislation as it existed from time to time. He had a conviction in 1992 in Broken Hill. In 2009 and 2011 there were further convictions in the Mount Barker Magistrate's Court for breaches of the 1977 Act. His licence was cancelled in August 2011. In 2014, at a time at which he did not hold a licence, the appellant pleaded guilty to a further breach of the provisions of the 1977 Act in the Mount Barker Magistrate's Court. The convictions would appear to bring into consideration the provisions of s 7(3)(b) of the Act.
Finding in the Tribunal
The Executive Senior Member undertook a review of the Registrar’s decision to refuse the appellant’s application for a licence. The Member provided detailed reasons for his decision on 16 April 2018.
The reasons set out in some detail the appellant’s history of offending in respect of firearms matters. In conclusion, the Executive Senior Member said:
54.In summary, the appellant falls a long way short of satisfying the Tribunal that he is a fit and proper person. The mere fact that he offended again within eight months of the District Court judgement suggests that he had learnt little. His evidence as to that occasion of offending was unconvincing, but even if it is accepted it demonstrates a continuing slackness of attitude and behaviour in respect of the requirements of firearms legislation. The appellant is now 56 years of age. His attitude as expressed in evidence before the Tribunal suggests that he may never gain the appropriate insight so as to modify his approach and his behaviour.
Consideration
The appellant is self-represented. The appeal is out of time. It was not instituted within one month of the decision appealed from.[7] There is no application for an extension of time.
[7] South Australian Civil and Administrative Tribunal Act 2013 s 71(3).
The appellant has set out ten grounds of appeal which, in his own words, are as follows:
1The firearms registar failed to hear my apeal in an appropriate time.
2The registar ignored supreme judge (in Samuel Wayde Building) orders dating back to 2015.
3The hearing judge had taken to long for a final order.
4The judge had referred to accounts from 40 years ago. These were not relevant to my case due to the years past.
5At no time my conduct has placed the public in danger. Basis for registar to dismiss my action.
6My previous guilt please has been taken as ‘no’ responsibility.
7The police have led me to believe that my guns have been destroyed. Hence its easier to find me as not a fit person so that I do not pursue this matter in court.
8Many of the conclusions are incorrect.
9The high standards expected from myself are not reflected by the system.
10The crime is if I don’t stand up for myself to a bully who slanders me and has never met me.
In my view, none of the appeal grounds sets out any basis that is reasonably arguable. The grounds 1, 3, 7, 9 and 10 are not grounds of appeal. The other grounds do not articulate a basis on which to find that there was any error in the decision of the Executive Senior Member. The Executive Senior Member considered the relevant history of the appellant. He upheld the decision of the Registrar’s delegate that the appellant was not a fit and proper person to hold a licence. He further held that the appellant has no insight into his conduct and the requirements imposed on a person who enjoys the privilege of having a firearms licence.
The appellant advances no reasonably arguable basis on which the Court could find that the Executive Senior Member erred in his review of the Registrar’s decision. Accordingly, a grant of leave is not warranted. In the circumstances, it is not necessary to consider whether an extension of time would be granted in the event that the appellant sought it. There is no utility in an extension of time in circumstances where an appeal has no merit.