Bertola v The Commissioner for Police [No 2]
[2015] WASC 489
•11 DECEMBER 2015
BERTOLA -v- THE COMMISSIONER FOR POLICE [No 2] [2015] WASC 489
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 489 | |
| Case No: | CIV:2239/2015 | 11 DECEMBER 2015 | |
| Coram: | PRITCHARD J | 11/12/15 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | FRANCIS PETER BERTOLA THE COMMISSIONER FOR POLICE LES HORROCKS |
Catchwords: | Administrative law Judicial review Mandamus Access to information obtained by police No decision No denial of procedural fairness |
Legislation: | Firearms Act 1973 (WA), s 9A, s 11, s 18. s 20 Freedom of Information Act (WA) Rules of the Supreme Court 1971 (WA), O 56 |
Case References: | Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 Ex parte Wallace & Co (1892) 13 LR (NSW) 1 King-Brooks v Roberts (1991) 5 WAR 500 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 21 IR 151 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
THE COMMISSIONER FOR POLICE
First Respondent
LES HORROCKS
Second Respondent
Catchwords:
Administrative law - Judicial review - Mandamus - Access to information obtained by police - No decision - No denial of procedural fairness
Legislation:
Firearms Act 1973 (WA), s 9A, s 11, s 18. s 20
Freedom of Information Act (WA)
Rules of the Supreme Court 1971 (WA), O 56
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : In person
First Respondent : Mr J M Misso
Second Respondent : Mr J M Misso
Solicitors:
Applicant : In person
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Cases referred to in judgments:
Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406
Ex parte Wallace & Co (1892) 13 LR (NSW) 1
King-Brooks v Roberts (1991) 5 WAR 500
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 21 IR 151
Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252
- PRITCHARD J:
(This judgment was delivered extemporaneously on 11 December 2015 and has been edited from the transcript).
1 Mr Bertola has applied pursuant to O 56 of the Rules of the Supreme Court 1971 (WA), for the following orders:1
1. A writ of mandamus requiring the second respondent to disclose at no cost to Mr Bertola, by rendering true copies of all documents including exempt documents ('documents' as defined in the Evidence Act 1906 (WA) and exempt documents as defined in the Freedom of Information Act 1992 (WA) (FOI Act)), or informations received or records thereof held by or under the power and control of the Western Australian Police Force which in any way refer to or deal with Mr Bertola, inter alia, regarding his health (including his mental health), his criminal record (if any), or his reputation with regard to any matter but particularly with relevance to the Firearms Licensing Branch of the WA Police Force.
2. A declaration that a police officer may not disregard or misinform the public regarding the important effect of the FOI Act, inter alia, at s 3 (especially s 3(3)) and s 4 (with respect to s 3(3)), and s 45 (especially with respect to s 45(1)).
3. An order that the defendants must accept renewal of Mr Bertola's Firearms Licence pending resolution of any outstanding matter until a reasonable time after the disclosure that he seeks is provided.
2 For the reasons below, I am not satisfied that Mr Bertola has established that the requirements for the issue of a writ of mandamus have been met and I am not persuaded that a declaration in the terms set out above should be issued. The third order sought by Mr Bertola also should not be made. Consequently, the application for judicial review should be dismissed.
Factual background
3 The facts giving rise to the present application were set out in an affidavit sworn by Mr Bertola on 21 July 2015 and an affidavit sworn by the second respondent on 10 September 2015.
4 Mr Bertola held a firearms licence granted in July 1985 pursuant to the Firearms Act 1973 (WA) (the Act). The licence expired on 25 July 2015.
5 The second respondent has delegated authority under s 5A of the Act to perform the statutory functions of the first respondent. The second respondent deposed that he is in charge of the Firearms Assessors at Police Licensing Services. The Firearm Assessors are responsible for making preliminary assessments of all firearm licence applications which are lodged by members of the public. The second respondent deposed that on 12 March 2015 a Senior Constable Phillips, who is an officer at Police Licensing Services, received an email from the officer in charge of the Jerramungup Police Station raising concerns about Mr Bertola's fitness to own and use firearms. On the same day, the second respondent signed a letter to Mr Bertola in which he advised Mr Bertola that he had received information which
leads me to consider you may not be a fit and proper person to be in possession of firearms.
6 In the interest of respecting Mr Bertola's privacy I do not intend to set out the precise details of the concerns that were set out in that document, except to say that the second respondent indicated that the concerns focused on Mr Bertola's mental fitness to hold a licence. The second respondent then told Mr Bertola:
As a result of this information and in order for me to make an appropriate determination, I am required to be satisfied that you meet the standard of mental or physical fitness to hold… [a] licence as mentioned within Section 11(3)(b) of the Act.
To assist in determining this matter I require you under the provisions of Section 20(1a) of the Act to provide a written report from a qualified medical practitioner. The report is to provide advice on your ability to possess a firearm.
7 The second respondent also advised Mr Bertola that if he failed to comply with the notice within a period of 28 days from the date of receipt of the request it may result in the revocation of his firearms licence.
8 Enclosed with the letter to Mr Bertola was a letter prepared by the second respondent to a medical practitioner. The contents of that letter (which were intended to be provided by Mr Bertola to his medical practitioner) are significant for present purposes in that the letter conveys, in more detail, the nature of the concerns held by the second respondent. It is not necessary for present purposes to set those matters out in detail. It suffices to say again that the medical practitioner was advised that the purpose of the examination was to assist the second respondent to be satisfied as to whether Mr Bertola met the standard of mental or physical fitness to hold a licence as mentioned within s 11(3)(b) of the Act.
9 For completeness, I note that the second respondent also deposed that he understood that firearms which were licensed to Mr Bertola were seized from Mr Bertola's property in May 2014 and have since been held at the Jerramungup Police Station. I note that no issue is taken by Mr Bertola in respect of the seizure of those firearms in this case.
10 The letter from the second respondent was served on Mr Bertola on 29 April 2015. On 17 July 2015, Mr Bertola (together with another person) attended at the front counter of Police Licensing Services (Firearms Branch) in Cannington. Mr Bertola spoke with the second respondent and he asked the second respondent why he had been served with a notice to attend on a medical practitioner. Mr Bertola deposed that the second respondent 'refused to disclose any fact or allegation which may allegedly have grounded the issuance of the notice'. Mr Bertola deposed that the second respondent told him that if he wanted information he had to apply for it under the FOI Act. Mr Bertola deposed that he asked to see the information report which had been received and which caused the second respondent to send the notice. The second respondent deposed that he advised Mr Bertola that if he wished to obtain that report he could put that request in writing and apply for access under the FOI Act. Mr Bertola also deposed that he told the second respondent that he wanted
to know what information you have about me and who from. And I want to renew my gun licence pending all that being resolved.
11 Mr Bertola deposed that the second respondent told him: 'You cannot renew your licence until we have satisfactory information from your doctor.'
12 Mr Bertola also deposed that during the conversation the second respondent told him that a complaint or information came from police at Boddington. The second respondent deposed that he told Mr Bertola that the notice had been served as a result of information that had been received by Police Licensing Services at Jerramungup Police Station. There seems to be some question about the source of the information in that respect.
13 Mr Bertola is most concerned about the fact that the information that apparently has been provided to the police, which suggests that he is not a fit and proper person to hold a firearms licence, is untrue. Having regard to the information provided in the correspondence from the second respondent Mr Bertola doubts the veracity of the information.
14 There is one further factual matter to which I should refer and that is that in Mr Bertola's outline of written submissions, he indicated that on 16 October 2015 he provided a medical certificate to Police Licensing Services. Mr Bertola regarded what he had done as constituting an application to renew his firearms licence. The information before the Court does not suggest that any decision has been made and counsel for the respondents advised that because no fee has been paid for the renewal of the licence, no renewal decision can be made or has been made.
The statutory context
15 The possession of a firearm is prohibited in Western Australia without a licence issued under the Act. A person who wishes to apply for a firearms licence must make an application and pay the prescribed fee.
16 The first respondent cannot issue a licence under the Act to a person in certain circumstances. One of those circumstances is if the person who applies is not a fit and proper person to hold the licence.2 The first respondent has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold a licence under the Act if certain requirements are met. One of those is if the first respondent is satisfied that the person fails to meet standards of mental or physical fitness that the first respondent considers to be necessary for the person to hold the licence.3
17 Before granting or issuing a licence, the Commissioner or his delegate is to ensure that, if there is any apparently reliable indication that the person may not meet the standards of mental or physical fitness referred to in s 11(3)(b) of the Act, sufficient evidence has been provided to satisfy him that the person does meet those standards.4 That evidence may include a certificate from a medical practitioner to the effect that the person has been examined and has not been found to have any physical or mental condition that could reasonably result in the person being considered not to be a fit and proper person to hold a licence under the Act.5
18 Subject to qualifications not presently relevant, a firearms licence under the Act is valid for a period of 12 months from the day on which it was issued or last renewed.6 The Commissioner may, on payment of the prescribed fee, renew a licence from time to time for further periods on an application made within a month before or within 12 months after the expiry of the licence.7
19 The Commissioner may refuse to renew or may revoke a firearms licence in certain circumstances. These circumstances include where the Commissioner is satisfied that a person who is the holder of a licence could not, because of a failure to meet the requirements in s 11 of the Act, be granted the licence if the person were then applying for it.8 The Commissioner may seek further information from the holder of a licence so that he can determine whether that person remains a fit and proper person. If the Commissioner requests in writing that the holder of the licence supplies such information, and the information is not supplied within 28 days (or such further period as the Commissioner approves) the licence may be revoked.9
20 In the present case, as I have said, Mr Bertola had a firearms licence. Information apparently came to the attention of the Commissioner's delegate which caused him to be concerned as to whether Mr Bertola remained a fit and proper person to hold the licence. In order to determine whether that was the case, he requested Mr Bertola to provide further information, namely a certificate from a medical practitioner. According to the letter sent by the second respondent, that request was made pursuant to s 20(1a) of the Act. It required the provision of the medical certificate within 28 days after Mr Bertola was served with it on 29 April 2015.
21 Having regard to the information provided to the Court today, it appears that Mr Bertola did provide the medical certificate but he did so on 16 October 2015, about four and a half months after it was required. However, the evidence is that, notwithstanding that Mr Bertola did not provide the medical certificate within the time required, the Commissioner did not make a decision to revoke his firearms licence. Instead the evidence is that Mr Bertola's licence simply expired by effluxion of time in accordance with the Act. As I have already noted, there is no evidence that Mr Bertola's licence has been renewed, notwithstanding the provision of the medical certificate, for the reasons I have given above.
The ground of review
22 The ground of review, as set out in the application for judicial review, is as follows:
The General Law has long required that a person is entitled to know of what they are accused and be given an opportunity to respond. I am falsely charged with a matter and have information that [is] necessarily false and/or misleading information has been placed on police files which has (without more) caused the police firearms branch to seek "medical" evidence regarding myself and place[d] my rights in jeopardy. Such information as I have extracted from the Second Respondent (as above) indicates both a date and separately, a source of information police allege they have, both of which cannot be true.
Said Second Respondent refused before a witness in a personal interview on 16 July 2015 to disclose any information in his possession and stated that he may be proceeding to take action against me without first providing any disclosure.
Why the writ of mandamus should not be issued
23 The circumstances in which a writ of mandamus will issue were described by Mason CJ, Wilson and Dawson JJ, in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia, where their Honours said:
Mandamus lies not for error of law but for a refusal to exercise the jurisdiction conferred or to perform the duty imposed.10
24 And, similarly in King-Brooks v Roberts, Malcolm CJ noted that:
It is of the essence of the writ or order of mandamus that it will issue to command the performance of a public duty.11
25 Accordingly, in order to establish that a writ of mandamus should issue in this case, Mr Bertola needs to establish that the respondents have refused to perform a public duty to which they are subject. Mr Bertola's case is that the first or second respondent is required to provide him with the information he has requested, as an incident of the requirements of procedural fairness.
In his submissions, Mr Bertola referred to the recent decision of the High Court in Saeed v Minister for Immigration and Citizenship.12 As French CJ, Gummow, Hayne, Crennan and Kiefel JJ, noted in that case, it is well established that,
when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power…
… Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise… [so that] a failure to fulfil that condition means that the exercise of the power is inefficacious.13
26 However, it is also clear that there is no free-standing common law right to be accorded natural justice by the repository of a statutory power. In Kioa v West, Brennan J made that very observation. His Honour went on to say:
There is no "right" except in the sense that a person may be entitled to apply to have a decision or action taken in purported exercise of the power set aside if the principles of natural justice have not been observed or to compel the repository of power to observe procedures which the statute obliges him to follow.14
27 In the present case, when the second respondent sent the letter to Mr Bertola, it appears that the second respondent had received some information which caused him to become concerned as to whether Mr Bertola continued to meet the requirements for holding a licence under the Act, namely whether he continued to be a fit and proper person to do so. The second respondent sought information from Mr Bertola to assist him to ascertain whether that was so.
28 However, the respondents do not appear to have taken any action to revoke Mr Bertola's licence, and certainly no such decision was in fact made. If the second respondent had decided to revoke Mr Bertola's licence (a decision which would clearly have interfered with an interest held by Mr Bertola) then, prima facie, the second respondent would have been required to afford procedural fairness to Mr Bertola as an incident of the power to revoke Mr Bertola's licence under the Act. Nothing in the Act appears to exclude the requirement to afford procedural fairness in its entirety, and counsel for the respondent did not suggest that that was so. Had the second respondent proceeded to revoke Mr Bertola's licence without affording him procedural fairness, then that decision would have been liable to be challenged on the grounds of jurisdictional error for failure to afford procedural fairness.
29 These observations do not determine what the content of procedural fairness would have been in any given case, and it is not necessary to determine the content of any requirement to afford procedural fairness in respect of a decision to revoke a firearms licence for the purpose of resolving this case. I note, however, that there are some limitations or restrictions under the Act on what the Commissioner may be required to disclose.15
30 For completeness, I note also that if a decision to revoke were made and challenged by way of a review under the Act to the State Administrative Tribunal, documents relating to that decision may be required to be disclosed for the purposes of that review.
31 For present purposes, however, it suffices to say that in my view the present case falls to be decided on the basis that because the respondents did not proceed to make any decision which affected Mr Bertola's interests (that is, there was no decision to revoke the firearms licence) then the requirement to afford procedural fairness does not arise for consideration.
32 Mr Bertola founded his application for the writ of mandamus solely on the basis that the source of the duty to provide him with the information he seeks lies in the requirement to afford him procedural fairness. He did not point to any other source of duty which has not been complied with in the present case. I digress to observe that there is no general right at common law to access documents or information held by other people, or by government agencies in particular. In Chubb Protective Services v Eke, Anderson J, with whom Kennedy ACJ and Wallwork J agreed, observed that:16
At common law there is no general right to have access to documents belonging to other people. Putting to one side the equitable right to discovery… discovery by way of discovery of documents is carried out according to the procedures set down in the rules of court.
33 The absence of a general common law right of access to documents is what makes the introduction of statutory rights of access under the FOI Act particularly significant. I note that in this case, Mr Bertola has not made an application for access to the documents sought under the FOI Act.
34 In the course of his submissions, Mr Bertola pointed to s 3(3) of the FOI Act, which makes clear that the Act does not preclude agencies subject to the Act from providing access to documents or information outside the Act. But that does not mean that agencies are, by virtue of s 3(3) of the FOI Act, subject to a public duty of the kind necessary to found an application for a writ of mandamus.
Why declaratory relief should be refused
35 I am not persuaded that a declaration should be made in this case.
36 The declaration which is sought by Mr Bertola is directed to police officers generally and not to the respondents in this case. Mr Bertola has not made an application for access to any documents under the FOI Act. The application for the declaration is thus not founded on any factual dispute requiring resolution. From that perspective it seems to be hypothetical or advisory in its nature. As Lockhart J observed in Aussie Airlines Proprietary Limited v Australian Airlines Limited:17
For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows.
• The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: Re Judiciary and Navigation Acts (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties.
• The applicant for declaratory relief will not have sufficient status if relief is "claimed in relation to circumstances that [have] not occurred and might never happen": University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10 per Gibbs J; or if the Court's declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority(NSW) (1977) 52 ALJR 180 at 180 per Mason J and at 189 per Aickin J.
• The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437 per Gibbs J and Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd at 448 per Lord Dunedin.
• Generally there must be a proper contradictor: Russian Commercial & Industrial Bank at 448; and Ainsworth at 596 per Brennan J.
37 Those observations are apt in respect of the present case.
Why an order cannot be made requiring Mr Bertola's licence to be renewed
38 The third order sought by Mr Bertola is an order that the respondents accept a renewal of his firearms licence pending resolution of any outstanding matter until a reasonable time after disclosure of the information he seeks, is provided. As I have already observed, s 9A(4) of the Act requires the payment of a fee for a renewal of a licence. Mr Bertola has not paid that fee. In that sense he has not yet properly applied for the renewal of his licence. In any event, the reason why the order sought should not be made is that Mr Bertola seeks that the Court direct the first respondent or his delegate as to how to exercise a discretionary power under the Act in advance of any exercise of that power. The Court has no power to make an order of that kind.
39 For these reasons the application for judicial review must be dismissed.
1 Plaintiff's minute of writ of mandamus dated 21 July 2015.
2Firearms Act 1973 (WA) s 11(1)(c).
3Firearms Act 1973 (WA) s 11(3)(b).
4Firearms Act 1973 (WA) s 18(4a).
5Firearms Act 1973 (WA) s 18(4b).
6Firearms Act 1973 (WA) s 9A(3).
7Firearms Act 1973 (WA) s 9A(4).
8Firearms Act 1973 (WA) s 20(1)(a)(iii).
9Firearms Act 1973 (WA) s 20(1a).
10Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 21 IR 151, 153.
11King-Brooks v Roberts (1991) 5 WAR 500, 515, citing Ex parte Wallace & Co (1892) 13 LR (NSW) 1, 9.
12Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252.
13Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [11] - [13].
14Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 610 - 611.
15 See, for example, Firearms Act 1973 (WA) s 11(4a).
16Chubb Protective Services v Eke [2001] WASCA 36 [16].
17Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406, 414.
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