Cramp & Cramp v Commissioner of Police, NSW Police Force

[2022] NSWCATAD 189

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Cramp & Cramp v Commissioner of Police, NSW Police Force [2022] NSWCATAD 189

Hearing dates:

On the papers after 24 May 2022

Date of orders:

8 June 2022

Decision date:

08 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

1. The parties having been given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, being satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing pursuant to s 50(2) Civil and Administrative Tribunal Act 2013.

2.   The Applicants’ applications for extensions of time to file applications for administrative review in proceedings 2022/00065527 and 2022/00065532 are refused.

Catchwords:

ADMINISTRATIVE LAW – Firearms licences - late applications for administrative review – extensions of time sought – principles relevant to extension of time applications

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Firearms Act 1996

Cases Cited:

ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271

Barden v Commissioner of Police [2022] NSWCATAD 149

CFA v Department of Family and Community Services [2016] NSWCATAD 32

CFZ v Department of Education [2015] NSWCATAD 231

Cramp v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 133

Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212

Edwards v Department of Family and Community Services [2012] NSWADT 60

EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167

Gallo v Dawson [1990] HCA 30, 93 ALR 479

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53

Nanschild v Pratt [2011] NSWCA 85

Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61

Texts Cited:

none

Category:

Procedural rulings

Parties:

2022/00065527:
John Cramp (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

2022/00065532:
Marilyn Cramp
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Hartmann & Associates (Applicants)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/00065527
2022/00065532

Publication restriction:

none

REASONS FOR DECISION

1. John Cramp and Marilyn Cramp (the Applicants) filed applications for review with this Tribunal on 7 March 2022 in relation to the decisions of the Commissioner of Police, NSW Police Force (Respondent) of 27 October 2021 and 27 September 2021 respectively to refuse their applications for a Category G firearms licence.

2. John Cramp lodged an application for internal review of the Respondent’s decision of 27 October 2021 on 4 November in accordance with s 53(1) of the Administrative Decisions Review Act 1997 (ADR Act) and Marilyn Cramp lodged an application for internal review of the Respondent’s decision of 27 September 2021 on 27 September 2021 in accordance with s 53(1) of the ADR Act.

3. The Respondent did not issue an internal review decision with respect to either John Cramp or Marilyn Cramp. Pursuant to s 53(9)(b) of the Civil and Administrative Tribunal Act 2013 (CAT Act), John Cramp’s internal review application is taken to have been refused on 25 November 2021, and Marilyn Cramp’s internal review application is taken to have been refused on 18 October 2021.

4. Pursuant to s 40 of the CAT Act, s 55(2) of the ADR Act, and r 24 of the Civil and Administrative Tribunal Rules 2014 (Procedural Rules), the default application period ended for John Cramp on 23 December 2021 and for Marilyn Cramp on 15 November 2021. The applications for review filed 7 March 2022 in this Tribunal are thereby 10.5 weeks out of time and 16 weeks out of time respectively.

5. The Applicants seek an extension of time pursuant to s 41 of the CAT Act in relation to their review applications. The Respondent opposes the granting of these extension of time applications. On 3 May 2022 the Tribunal made the following orders in each matter:

1. [Applicant] is to give to the Tribunal and the respondent any application for an extension of time for lodging the application for administrative review, together with any evidence and submissions, on or before 10 May 2022;

2. Commissioner of Police is to give to the Tribunal and the Applicant any evidence in reply and submissions, on or before 24 May 2022;

3. The parties’ submissions are to include any submission as to whether a hearing on the application for an extension of time is required. Subject to considering any such submissions the Tribunal proposes to dispense with a hearing and determine the application for an extension of time on the basis of the documents before the Tribunal as at 24 May 2022.

6. Written submissions were filed by the Applicants on 3 May 2022 and by the Respondent on 16 May 2022. No evidence was received from either party.

Legal Principles

7. Section 36 of the CAT Act provides:

(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The Tribunal must seek to give effect to the guiding principle when it—

(a) exercises any power given to it by this Act or the procedural rules, or

(b) interprets any provision of this Act or the procedural rules.

8. Section 75(1)(a) of the Firearms Act 1996 provides:

75 ADMINISTRATIVE REVIEWS BY CIVIL AND ADMINISTRATIVE TRIBUNAL OF CERTAIN DECISIONS

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions--

(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

…

9. Section 53 of the ADR Act relevantly provides:

53 INTERNAL REVIEWS

(1) Who may apply for an internal review If an administrator makes an administratively reviewable decision, an interested person may apply for an internal review of that decision under this section.

(2) Requirements for an application An application for an internal review is:

…

(d) to be lodged at the office (or an office) of the administrator within 28 days (or such later date as the administrator may allow) after the person:

(i) if the person has requested reasons under section 49--was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or

(ii) if the person has not requested reasons under section 49--was notified of the making of the administratively reviewable decision, and

(e) to comply with such other requirements as may be prescribed by the regulations in respect of the making of applications for internal reviews.

…

(9) When an internal review is finalised An internal review is taken to be finalised if:

(a) the applicant is notified of the outcome of the review under subsection (6), or

(b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).

Note: Section 55 provides that an interested person may apply for an administrative review under this Act of an administratively reviewable decision once an internal review of the decision is taken to be finalised under this subsection.

…

(11) Regulation-making powers The regulations may:

(a) prescribe requirements to be observed in relation to the conduct of an internal review under this section, or

(b) exclude any class of administratively reviewable decisions from the application of this section, or

(c) alter the period within which an internal review must be conducted or a notice given under this section.

10. Section 55 provides, in the relevant part:

(1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person.

(2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules.

Note—

The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013.

(3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53(9).

11. Section 40 of the CAT Act provides, to the same effect as s 55(2):

An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules.

12. Rule 24 of the Procedural Rules provides, in the relevant part;

…

(3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made—

(b) ... by the end of the default application period.

(4) The default application period for the purposes of subrule (3)(b) is—

(a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997—the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act,

...

13. Section 41 of the CAT Act provides:

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

14. Section 50 of the CAT Act provides:

50 WHEN HEARINGS ARE REQUIRED

(1) A hearing is required for proceedings in the Tribunal except--

(a) in proceedings for the granting of leave for an external or internal appeal, or

(b) in connection with the use of any resolution processes in proceedings, or

(c) if the Tribunal makes an order under this section dispensing with a hearing, or

(d) in such other circumstances as may be prescribed by the procedural rules.

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first--

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.

Consideration

Hearing ‘on the papers’

15. The Applicants did not address in their submissions the Tribunal’s proposal in the orders issued 3 May 2022 to determine the extension of time issue ‘on the papers’. The Respondent submitted that that a hearing to determine the extension of time applications was not required because the arguments were sufficiently canvassed in the submissions.

16. Pursuant to s 50(2) of the CAT Act I am satisfied that the issues for determination in these extension of time applications can be adequately determined in the absence of the parties by considering the written submissions provided to the Tribunal, in circumstances where both parties were legally represented and there were orders made by the Tribunal for the filing and service of all evidence and submissions, which gave each of the parties sufficient opportunity to present their cases pursuant to s 50(3) of the CAT Act. Accordingly, I have decided to dispense with a hearing of the application pursuant to s 50(1)(c) of the CAT Act.

Extension of time

17. The Applicants submitted that the 28 days referred to in s 53(2)(d) of the ADR Act did not apply, and there were no other time constraints established by the Act or Regulations. This submission is misconceived in that the 28 days referred to in s 53(2)(d) of the ADR Act is the time allowed for the Applicant to request an internal review of a decision by the Respondent. In these proceedings there is no dispute that the request by the Applicants for an internal review of the Respondent’s decisions was made within the statutory time period. The dispute is in relation to the time period allowed from the finalisation of the internal review period for the Applicants to seek administrative review in this Tribunal pursuant to s 55(2) of the ADR Act, s 40 of the CAT Act and r 24(4)(a) of the Procedural Rules, which is 28 days unless an extension of time is granted pursuant to s 41 of the CAT Act.

18. The Applicants submitted that an extension of time should be granted pursuant to s 41 of the CAT Act because they:

1. are committed firearms enthusiasts;

2. have held firearms licences over many years;

3. have an extensive collection of high value items which are currently in paid storage;

4. are elderly, with failing health;

5. do not pose a threat to the public interest or themselves;

6. have ‘more than adequate' storage facilities; and

7. are committed to abiding by legislative requirements.

19. The Tribunal was not provided with any evidence to support these submissions.

20. The applicants did not apply for an extension of time when filing their applications for administrative review in this Tribunal, instead checking the box indicating that the applications were filed within time. Despite the Tribunals orders of 3 May 2022, there was no formal application in writing filed by the Applicants for an extension of time. However, given the circumstances that the issue was raised in the case management of these matters and the parties consequently filed submissions in relation to an extension of time application, I dispense with the requirement that each application for an extension of time be in writing: Procedural Rule, r 8.

21. In CFA v Department of Family and Community Services [2016] NSWCATAD 32 at [25] to [29] the Tribunal summarised the principles relating to extensions of time under s 41 of the CAT Act, which were most recently referred to and upheld by the Court of Appeal in EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 the Court of Appeal held at [17] to [18], and which I apply to these proceedings:

Section 41 of the Civil and Administrative Tribunal Act confers an unfettered discretion on the Tribunal to extend the time for the making of an application to it. However, this discretion must be exercised judicially: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18].

The principles applicable to extending time in administrative review proceedings were considered by Molony SM in CFZ v Department of Education [2015] NSWCATAD 231. The Senior Member said (at [8]) that the principles to be applied by an Appeal Panel on applications for an extension of time, as discussed in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, were equally applicable to an administrative review application, with appropriate adaptation.

In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel said at [22]:

“The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:

(1)The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant -Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

(2)The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision ....

(3)Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a)The length of the delay;

(b)The reason for the delay;

(c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d)The extent of any prejudice suffered by the respondent (to the appeal),

- Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].”

In CFZ v Department of Education [2015] NSWCATAD 231, Molony SM also referred to some considerations which are relevant in administrative review applications:

“In administrative review applications, there is a public interest component to the evaluation, in that the public interest in accepting a late application is a matter to be considered in the exercise of the discretion: see ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271 and Edwards v Department of Family and Community Services [2012] NSWADT 60. So too is timeliness or delay in the antecedent administrative processes: see Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212. Those matters are necessary adaptions to the consideration of an extension of time in the context of an administrative review.”

Whilst it is important to remember that the Tribunal has a broad discretion concerning the grant of an extension of time, the cases referred to above establish that the following factors are relevant:

(1) The length of the delay;

(2) The reason for the delay;

(3) The applicant’s prospects of success;

(4) Any prejudice suffered by the respondent;

(5) Public interest considerations;

(6) Timeliness or delay in antecedent administrative processes;

(7) Whether strict compliance with the rules will work an injustice upon the applicant.

22. I accept the Respondent’s submission that the length of the delay – 10.5 weeks with respect to John Cramp’s application, and 16 weeks with respect to Marilyn Cramp’s application – is unreasonable. This is especially so in circumstances where the Applicants have not provided any reason for the delay, and are represented by solicitors who are experienced in firearms matters. The Applicants were specifically provided with the opportunity by the Tribunal’s orders of 3 May 2022 to file any evidence relevant to their extension of time application, and failed to do so.

23. Determining the Applicants’ prospects of success is difficult in circumstances where neither party has yet filed any evidence in the proceedings. However, based on the Respondent’s Notice of Refusal to John Cramp which was attached to his application for administrative review, his application for a firearms licence seems to have been refused because of a criminal history including convictions for a number of firearms offences in 2004 and charges for threatening an individual in 2006, although these were ultimately dismissed. A previous firearms application made in 2007 was refused by the Respondent.

22. Marilyn Cramp was previously the subject of a decision by the Tribunal in relation to a firearms dealers licence application, which was refused: Cramp v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 133. The Tribunal affirmed the Respondent’s decision in those proceedings to refuse the dealers licence application, on the basis of her domestic circumstances as the spouse of John Cramp, their living together, and being ‘close associates’, and the evidence demonstrating that issuing her with the licence would not be in the public interest. There has been no evidence provided by the Applicants in these proceedings to suggest that these factual circumstances, as found by the Tribunal in 2020, have changed.

23. In the circumstances I accept the Respondent’s submission that on the material available to the Tribunal, that the Applicants’ prospects of success are low, even if the extensions of time were granted so as to allow the applications to proceed to review.

24. I accept the respondent’s submission that it may suffer prejudice as a result of a decision by this Tribunal extending the time of unreasonably late applications for review in circumstances where there is no particular reason given for the lengthy delay, in circumstances where it has opposed the extensions of time. I also accept that public interest considerations support a time limitation on applications for administrative review in order to achieve the Tribunal’s objectives, pursuant to the guiding principle contained in the CAT Act.

25. With respect to the timeliness or delay in antecedent administrative processes, I take into consideration the Respondent’s non-compliance with s 53(6) of the ADR Act, which requires the administrator, within 21 days of the lodgement of an internal review application, to provide the applicant with written notice of the outcome of the internal review, the reasons for the decision, and the applicant’s right to have the decision reviewed by the Tribunal. However I agree with the Respondent that this is precisely the circumstance that s 53(9)(b) of the ADR Act is intended to address: to allow access to a timely review by the Tribunal in circumstances where an application for internal review has not been dealt with within the allotted 21 days. The Applicants’ delay in making the applications for review cannot be blamed on the Respondent’s failure to provide an internal review decision.

26. As for whether strict compliance with the rules would work an injustice upon the Applicants, in the circumstances the Tribunal finds that there would be no injustice. Even if the Tribunal were to accept the Applicants’ submissions about their personal circumstances and interest in obtaining the firearms licence as evidence (which it does not), the delay was caused entirely by the Applicants and the Tribunal’s refusal to hear and determine these late applications would not derogate any rights of the Applicants to re-apply for firearms licences and seek review of those applications, if refused, within the limitation periods specified by legislation: see Barden v Commissioner of Police [2022] NSWCATAD 149 at [16].

27. In the circumstances, the Tribunal refuses the applications for extension of time sought by the Applicants pursuant to s 41 of the CAT Act.

Orders

1. The parties having been given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, being satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing pursuant to s 50(2) Civil and Administrative Tribunal Act 2013.

2. the Applicants’ applications for extensions of time to file applications for administrative review in proceedings 2022/00065527 and 2022/00065532 are refused.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 08 June 2022