Cusamano v Commissioner of Police, New South Wales Police Service (GD)

[2001] NSWADTAP 28

Appeal Panel

CITATION:	Cusamano -v- Commissioner of Police, New South Wales Police Service (GD) [2001] NSWADTAP 28
PARTIES:	APPELLANT Vincent Cusumano RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	019019
HEARING DATES:	19/07/2001
SUBMISSIONS CLOSED:	07/19/2001
DATE OF DECISION:	07/19/2001
DECISION UNDER APPEAL:	Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50
BEFORE:	O'Connor K - DCJ (President); Britton A - Judicial Member; Mapperson K - Member
CATCHWORDS:	leave to appeal out of time
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003383
DATE OF DECISION UNDER APPEAL:	03/27/2001
LEGISLATION CITED:	Firearms Act 1966
CASES CITED:	Cusumano -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 50 Jackamarra -v- Krakouer (1998) 195 CLR 516
REPRESENTATION:	APPELLANT P Naughtin, barrister RESPONDENT C Capper, solicitor
ORDERS:	Appeal sismissed.

DELIVERED EX TEMPORE
1 [The notice of appeal relates to a decision of the Tribunal affirming the decision of the Commissioner of Police relying on three grounds found in s 24 of the Firearms Act 1996 and one ground found in cl 17 of the Firearms (General) Regulation 1997 to revoke the appellant, Mr Cusumano’s firearms licence: see Cusumano -v- Commissioner of Police, NSW Police Service [2001] NSWADT 50 (27 March 2001). On 24 July 2000 the Local Court had found Mr Cusumano guilty (with no convictions being recorded) of 26 offences, including 11 counts of possessing unauthorised firearms, 14 counts of not keeping firearms safely (4 of which related to prohibited firearms) and 1 count of not having approved storage consistent with his licence categories.

2 On 27 September 2000 the Commissioner revoked Mr Cusumano’s licence. The Tribunal affirmed the Commissioner’s decision, being satisfied that the first two grounds relied upon provided sufficient justification, i.e. the number and nature of the offences; and breach of a condition of licence that related to safe storage (see respectively Firearms Act 1996, s 24(2)(b)(ii) and (iii)). The Tribunal did not express any view on the other two broader grounds relied on by the Commissioner - the ground of fit and proper character (s 24(2)(c)) and the public interest ground (cl 17 of the Regulation).

3 The notice of appeal was lodged on behalf of Mr Cusumano on 14 May 2001 which was agreed to be 14 days outside the 28 day time limit prescribed by the Administrative Decisions Tribunal Act 1997, s 113(3)(a). The Tribunal may waive this requirement: para (b). The Commissioner objected to the grant of leave to appeal. There was an affidavit from Mr Cusumano’s solicitor, Mr Morgan, explaining the circumstances giving rise to the 14 day delay. The Appeal Panel refused leave for the reasons that follow.]

4 This is a ruling in respect of the application to extend leave to receive the appeal out of time. As the parties are aware, there was an objection from the respondent (the Commissioner of Police) to leave being granted (see reply filed 24 May 2001).

5 As we indicated in the course of the submissions the delay of 14 days in the circumstances that are set out in Mr Morgan’s affidavit does not give rise to any great concern on the part of the Appeal Panel. We note that in that regard the Commissioner of Police has the same view that it is not an unusually long delay. We accept the explanation that is given by the solicitor in the affidavit.

6 In the exercise of the discretion to grant leave, that conclusion does not always dispose of the matter. It is recognised in the case-law pertaining to the exercise to grant leave out of time that regard should also be had to the utility of entertaining a full appeal: see e.g. Jackamarra -v- Krakouer (1998) 195 CLR 516. To some extent therefore a proceeding like today’s tends to bring forward a discussion that might well have occurred on the occasion of a full hearing of an appeal.

7 The issue that we need to address is whether there is any benefit to be served in allowing the appeal to continue. In that regard it is necessary for the notice of appeal to identify arguable grounds of appeal. As I indicated during argument, we have had some difficulty in seeing what error of law or alleged error of law is said to have occurred in respect of the reasoning contained in the Tribunal’s decision.

8 The two grounds referred to in the notice of appeal are:

(1) the uncertainty that Mr Cusumano now faces as to when he might get his licence back;
(2) the circumstances that have led to the delay in filing the notice of appeal.

Ground (2) really does not raise a ground of appeal in its own right.

9 Going back to the first matter, during the course of argument the Appeal Panel sought to clarify with Mr Cusumano his understanding of the position he finds himself in, now that his firearms licences are revoked. It is true that there is a lack of clarity as to when he might be able to regain a licence but he would not, as he seems to think, be any better off if he had been actually convicted at the Local Court. If he had been convicted at the Local Court he would have been barred completely from having a licence for the next ten years whereas the way the matter stands at the moment it is open to the Commissioner to restore the licence within the ten year period if the Commissioner is so minded.

10 As to what factors might influence the Commissioner in that regard our view is that Mr Cusumano will have to make his own inquiries of the Firearms Registry. I should note also, to assist Mr Cusumano, that the Tribunal did not reach any conclusion as to the third and fourth bases upon which the Commissioner revoked the licence in the first place. It simply confined its attention to the first two bases upon which the Commissioner acted.

11 At its best we felt that the submission that was being put by Mr Naughtin (in regard to the question of the relevance of the decision of the Local Court not to enter convictions) could be expressed as raising this question of law: failure on the part of the Tribunal to consider a relevant consideration. It might be said that the Tribunal in its reasons for decision erred in law in that it failed to consider a relevant consideration being the outcome at the Local Court. But if you look at the decision it is plain that it did regard the outcome at the Local Court as a relevant consideration, and did take it into account. So even seeking, as we probably should, to cast the grievance that is expressed in the notice of appeal in a way which might raise an error of law, it is our view that that error is not arguable on the face of the decision - the outcome at the Local Court was considered, as was the evidence that was presented on that occasion.

12 So for those reasons our conclusion is that the appeal is (to use the words found in the head note in Jackamarra’s case, and words that are generally familiar in this area of the law) so devoid of merit that it would be futile to extend time. So that is our conclusion, the leave to extend time is not granted and therefore the appeal is dismissed.