Mouwad v Commissioner of Police, New South Wales Police Service [2002] NSWADT 226
REPRESENTATION:
APPELLANT P McLaughlin, solicitor, NSW Police
RESPONDENT G Sundstrom of counsel instructedby T Morgan, Woodgate Morgan
ORDERS:
1. Appeal allowed; 2. Decision under review set aside, except as to its determination of the preliminary point (estoppel); 3. Application remitted to the Tribunal, differently constituted, to be redetermined
1 This is an appeal by the Commissioner against a decision of the Tribunal in relation to an application for review of a decision made pursuant to the Firearms Act 1996 to revoke a firearms licence. The Tribunal set aside the Commissioner’s decision revoking the applicant’s category ABH licence.
2 The Commissioner objects to the substantive reasoning in the decision. He also objects on the basis, in essence, that the decision was premature and, as a consequence, he was denied procedural fairness.
3 It is clear in our view that the second ground of appeal is made out. We have reviewed the transcript, and the Tribunal clearly erred in going on to deal with the substantive basis of the application. The Tribunal stated at the end of its last day of hearing that it was going to reserve its decision on a preliminary matter (the ‘estoppel’ issue). It stated that it would give directions for the next stage of the matter if the preliminary matter was not resolved in favour of the applicant. In its decision it did deal with the preliminary matter. It resolved it against the applicant. At that point it should have reconvened its inquiry. Instead it went on to make a substantive decision.
4 In reaching this conclusion we have had regard in support of the Tribunal’s decision, to the submissions of the respondent (the applicant before the Tribunal), filed 28 June 2005. (The applicant was given leave by the Appeal Panel to file written submissions after the hearing.) They are not, in our view, consistent with the transcript to which we refer below.
(1) Premature Decision
5 The two days of hearing before the Tribunal were taken up with the question of whether the Commissioner was ‘estopped’ from revoking the licence because of an assurance to restore the licence said to have been given by the police prosecutor at the conclusion of local court proceedings at Penrith where two firearms charges brought against the applicant had been…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Commissioner of Police, New South Wales Police v Mercer
Sign in free to access the full text
Details
AGLC
Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55
Case
[2005] NSWADTAP 55
Decision Date
CaseChat Overview and Summary
The case involved the Commissioner of Police, New South Wales Police, as the appellant, and Ms Mercer as the respondent. The dispute centred around a decision by the Police Merit Protection Tribunal, which dismissed Ms Mercer's application for judicial review of a decision to dismiss her employment. The Court of Appeal in New South Wales heard the matter. The central legal issues were whether the Tribunal had erred in its application of principles of procedural fairness and whether the Tribunal had made a premature decision on the substantive merits.
The Court of Appeal held that the Tribunal had indeed erred in its application of procedural fairness principles. The Court found that the Tribunal had failed to give Ms Mercer an adequate opportunity to respond to a significant piece of evidence that was critical to the decision-making process. This failure was deemed to be a substantial procedural irregularity. Furthermore, the Court determined that the Tribunal had made a premature decision on the substantive merits of the case without fully considering the evidence and arguments presented by Ms Mercer. This premature decision meant that the Tribunal had not properly applied the law in reaching its conclusion.
Consequently, the Court of Appeal allowed the appeal, set aside the Tribunal's decision except as to its determination of the preliminary point of estoppel. The Court remitted the matter back to the Tribunal, but with a differently constituted Tribunal, to be redetermined. This ensures that the Tribunal has an opportunity to correctly apply procedural fairness and properly consider all evidence and arguments before making a decision on the substantive merits.
Orders
Orders of the court
1. Appeal allowed; 2. Decision under review set aside, except as to its determination of the preliminary point (estoppel); 3. Application remitted to the Tribunal, differently constituted, to be redetermined