Chief Commissioner of Police v Colin Websdale
[2019] VSCA 165
•24 July 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0068
| CHIEF COMMISSIONER OF POLICE | Applicant |
| v | |
| COLIN WEBSDALE | Respondent |
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| JUDGES: | MAXWELL P and McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 July 2019 |
| DATE OF JUDGMENT: | 24 July 2019 |
| PUBLICATION OF REASONS: | 30 July 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 165 |
| JUDGMENT APPEALED FROM: | [2019] VCAT 666 (Judge Hampel) |
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PRACTICE AND PROCEDURE – Stay pending appeal – Firearm prohibition order – Order made by Chief Commissioner of Police – Merits review by Victorian Civil and Administrative Tribunal – Order set aside – Application for leave to appeal from Tribunal order – Whether exceptional circumstances exist for grant of stay – Whether proposed appeal arguable – Whether stay may ameliorate risk to public safety pending appeal – Whether hardship to respondent outweighed – Saville v Hallmarc Construction Pty Ltd [2015] VSCA 144, Maher v Commonwealth Bank of Australia [2008] VSCA 122, Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347, Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653, applied – Firearms Act 1996 pt 4A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr I R L Freckelton QC with Ms N E Hodgson | Victoria Police, Legal Services Department |
| For the Respondent | Mr D P Sheales | Malkoun & Co Lawyers |
MAXWELL P
McLEISH JA:
This matter concerned an application for a stay regarding a firearm prohibition order (‘FPO’) under the Firearms Act 1996.
Part 4A was introduced into the Firearms Act 1996 in 2018. It provides for the making of FPOs by the Chief Commissioner of Police. A person to whom an FPO applies must not acquire, possess, carry or use a firearm or firearm related item: s 112B. There is a maximum penalty of 10 years’ imprisonment for doing so. There is a separate offence under s 112C where a person gives a firearm to a person subject to an FPO or enables that person to possess, carry or use a firearm.
The person subject to the order is also prohibited from entering or remaining on various premises, including firearms dealing businesses, shooting ranges or other premises where firearms are stored: s 112O. The last offence is subject to a maximum penalty of 12 months’ imprisonment. Premises or vehicles occupied by or under the control of a person subject to an FPO may be searched without warrant: s 112Q. Both a person subject to an FPO and a person in that person’s company are liable to search without warrant and to seizure of firearms: ss 112R and 112S.
The considerations governing the making of an FPO are set out in s 112E:
The Chief Commissioner may make a firearm prohibition order only if the Chief Commissioner is satisfied that it is in the public interest to do so—
(a)because of the criminal history of the individual; or
(b)because of the behaviour of the individual; or
(c)because of the people with whom the individual associates; or
(d)because, on the basis of information known to the Chief Commissioner about the individual, the individual may pose a threat or risk to public safety.
The Chief Commissioner is empowered to make an FPO even though the individual in question has never acquired, possessed, carried or used a firearm or firearm related item: s 112D(3).
On 29 May 2018, the Chief Commissioner of Police made an FPO in respect of Mr Colin Websdale, the present respondent, in reliance on s 112E(a) and (c). Mr Websdale applied to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) under s 112L for a review of that decision and, on 8 May 2019, the Tribunal (constituted by its Acting President) set aside the Chief Commissioner’s decision. It is not necessary to set out the grounds upon which the Chief Commissioner relied, or the basis of the Tribunal’s decision, at this point. Sufficient detail will emerge in the comparatively brief reasons that follow.
The Chief Commissioner sought a stay of the Tribunal’s order, pending the determination of his application for leave to appeal against the Tribunal’s decision. On 24 July 2019 we granted that application with short reasons and indicated that we would subsequently publish more detailed reasons. These are those reasons.
There were said to be two ‘general bases’ for the stay application, as follows:
•that a stay is necessary in order to maintain the safety of the public and mitigate the risk the respondent poses, pending the determination of the application for leave to appeal; and
•secondly, the interpretation of the legislation as determined by the Tribunal is impeding the administration of the Act and undermining the purposes for which the FPO scheme was established, thereby impacting adversely on the safety of the Victorian community.
The second basis was not the subject of oral argument and we may immediately dispose of it. The Court would not, in granting a stay, pronounce upon the correct interpretation of the legislation. The Tribunal’s reasoning would therefore retain the same weight as that of any other decision subject to a pending appeal process. The second suggested basis for a stay is therefore misconceived.
As to the first basis, the Commissioner argues that Mr Websdale will suffer little inconvenience by being subject, in the interim, to the limitations attached to the order. According to his submission, that detriment is to be weighed against the public interest in the ongoing protection of the public and mitigation of risk to the public provided by the FPO.
Dr Freckelton QC, on behalf of the Commissioner, submitted that the Tribunal had erred by finding that, although Mr Websdale presenting a continuing risk to public safety by virtue of the people with whom he associates and his criminal record, there was no evidence to show that this risk would be abated by the making of an FPO and that it therefore could not be shown to be in the public interest to make the order. It was submitted that, once the finding as to a risk to public safety had been made, it was in the public interest to make the order because the order would operate as a matter of law in ways calculated to reduce the risk. In particular, because of the powers of search and seizure under the legislation and the prohibition on entering premises where firearms are stored, the order would reduce the likelihood of Mr Websdale acquiring firearms or associating with persons having firearms.
Dr Freckelton accepted that the Court could not, on the present application, decide whether the considerations just identified warranted making an FPO. Instead, it was submitted that they pointed to the ways in which a stay pending appeal would serve to abate the risk to public safety presented by Mr Websdale. It was said that the benefits of the continuation of the FPO therefore outweighed the inconvenience caused to Mr Websdale.
It was part of Dr Freckelton’s argument that the reference to ‘public safety’ in s 112E(d) but not elsewhere in s 112E did not preclude reliance on that concept as a guiding criterion when applying the other paragraphs of the section.
It was submitted, relying on cases concerning medical practitioners and the racing industry, that the burden of justifying a stay is reduced in the case of appeals from decisions of regulatory bodies.[1]
[1]Medical Practitioners Board of Victoria v Lal (2008) 30 VAR 347, 349–50 [15]–[16], 350 [19]; [2008] VSCA 264 (Redlich and Weinberg JJA); Maund v Racing Victoria Ltd [2015] VSCA 276 [35] (Cavanough AJA).
In response, Mr Websdale submits that, before the issue of protection of the public assumes pre-eminence, a consideration of the nature of the risk to the public is required. He submits that the Commissioner has failed to demonstrate any nexus between the threat to public safety said to be posed by Mr Websdale and any amelioration of that purported threat by means of the FPO.
Mr Sheales, on behalf of Mr Websdale, submitted that the appeal was a weak one because the Tribunal had applied the correct test and the proposed grounds of appeal largely asserted reliance on irrelevant factual considerations rather than any error of law. It was submitted that the FPO imposed no inhibition on Mr Websdale regarding the carrying of firearms because he was already unlicensed and had no intention of making what would in any event be a futile application for a licence. There was no evidence of Mr Websdale having possessed a firearm himself since 2011 (being an antique firearm, for possession of which he was fined in 2012). It was pointed out that the legislation does not prohibit a person to whom an FPO applies from associating with persons carrying firearms. The real prohibition was in respect of access to premises.
In that context, it was submitted that, on the evidence, Mr Websdale would not be prohibited from attending the clubhouse of the Rebels outlaw motorcycle club, of which he was formerly President of the Geelong chapter. There was no evidence of firearms having been at those premises since 2007. However, he would be prevented from visiting the home of his parents in law, or the business premises of his greyhound trainer, because firearms were lawfully stored at both those premises.
Mr Sheales also highlighted the fact that no police officer had exercised the search powers enlivened by the FPO in respect of Mr Websdale during the 12 months (approximately) during which the order had been in force. It was said that this cast doubt on the relevance of those powers to the present application.
Mr Sheales challenged the analogy with regulatory decisions in cases where the person seeking the stay had previously been the holder of a licence entitling them to deal with the public. In those cases, it was said, the person has been held out to the public as fit and proper and was seeking to preserve that position notwithstanding a finding of misconduct of some description. The public interest in such cases tended to favour preserving the prohibition pending appeal. Here there was no equivalent licence or adverse finding.[2]
[2]Reliance was placed on Woods v Legal Ombudsman [2002] VSCA 133 [7] (Winneke P, with Chernov JA agreeing), cited with approval in Frugtniet v Law Institute of Victoria Ltd [2011] VSCA 184 [10] (Macaulay AJA, with Harper JA agreeing).
Rule 66.16 of the Supreme Court (General Civil Procedure) Rules 2015 provides that the Court ‘may stay execution of a judgment’. The Court enjoys a wide discretion in this respect and all relevant factors should be considered.[3] However, ordinarily, a successful party is entitled to the benefit of a judgment and the presumption that the judgment is correct. An applicant for a stay therefore bears the onus of demonstrating that a stay is justified.[4]
[3]Saville v Hallmarc Construction Pty Ltd [2015] VSCA 144 [18] (Tate and McLeish JJA).
[4]Maher v Commonwealth Bank of Australia [2008] VSCA 122 [20] (Dodds-Streeton JA, with Redlich JA agreeing).
An applicant for a stay should also demonstrate that there is at least an arguable ground of appeal. Usually the Court does not have before it sufficient materials to consider, in detail, the merits of the grounds of appeal relied on in the application for leave to appeal and it is generally undesirable to do so in any event. Unless there is no arguable ground of appeal, or the appeal is not bona fide, the Court will ordinarily focus on matters relevant to the consequences of the judgment, rather than matters that are relevant to its validity or correctness.[5]
[5]Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd [2015] VSCA 347 [90] (Kyrou and McLeish JJA).
It has long been held in this State that the power to order a stay pending appeal is to be exercised only where special or exceptional circumstances exist.[6] Dr Freckelton raised the question whether that test continued to apply, but we declined to hear argument on the question and have instead proceeded on the basis that special or exceptional circumstances must be shown.
[6]Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653, 657 (Young CJ, with Brooking J agreeing).
In our view, it is appropriate that there be a stay of the Tribunal’s decision pending the hearing and determination of the application for leave to appeal. Of particular significance for this purpose is the Tribunal’s conclusion that Mr Websdale:
poses a continuing threat or risk to public safety by reason of his long-term and continuing identification with the [Rebels outlaw motorcycle club], their values, and his continuing association with fellow members of the Rebels.[7]
[7]Websdale v Chief Commissioner of Police [2019] VCAT 666 [104] (Judge Hampel).
The issue to be investigated on the appeal is whether a conclusion in those terms was, by itself, a sufficient basis for the conclusion that it was in the public interest that an FPO be made or whether, as the Tribunal found, the power to make such an order was only exercisable if there was evidence that established that:
the risk to the public safety [Mr Websdale] poses [was] connected to the acquisition, possession, carrying or use of a firearm or firearm-related item by him.[8]
[8]Ibid [111].
We need say no more for the purposes of this application than that this is an important and plainly arguable question of interpretation, the answer to which will affect the scope of the Chief Commissioner’s powers under s 112E. As we understand it, this is proposed ground 6 of the appeal. It is not necessary to deal with the arguments of Mr Sheales about the merits of the other proposed grounds.
We have also not found it necessary to rely on the analogy sought to be drawn by Dr Freckelton from other regulatory contexts or to decide whether that analogy is inapt. However, there was force in the submission of Mr Sheales that the treatment of the public interest in such cases is distinguishable from the present because they involve a person seeking to continue to undertake dealings with the public for which there is a legislative licensing requirement in circumstances where a regulatory body has found that the relevant licence should be withdrawn. At the same time, considerations of the public interest plainly loom large in the present application.
The requirement of special or exceptional circumstances is met because Mr Websdale has been found to represent a continuing risk to public safety, and it is arguable that a stay of the Tribunal’s decision will ameliorate that risk pending appeal, in circumstances where it appears to us that no serious hardship will be caused to Mr Websdale as a result. We accept Dr Freckelton’s submission that it is sufficiently arguable that the existence of the FPO has had, and is apt to continue to have, the effect of abating the risk found by the Tribunal in the ways he identified to outweigh the adverse impact of the order upon Mr Websdale.
Given the importance of the question, however, we consider that the hearing of the substantive application for leave to appeal, and any appeal, should be expedited. We have requested the Registrar of the Court of Appeal to list this matter at the earliest practicable date, having regard to the other demands on the Court’s time.
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