Diamond v Commissioner of Police

[2022] NSWCATAD 217

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Diamond v Commissioner of Police [2022] NSWCATAD 217

Hearing dates:

On the papers

Date of orders:

30 June 2022

Decision date:

30 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

1. The interim application is to be determined on the papers, and dispensing with a hearing, pursuant to s50(2) Civil and Administrative Tribunal Act 2013.

2.   The substantive application has been filed within time.

3.   The Tribunal has jurisdiction to determine the proceedings.

4.   The matter is to be fixed for a directions hearing by the Registrar.

Catchwords:

PROCEDURAL HEARING – reckoning of time – s 36 Interpretation Act NSW 1983 – s 53 Administrative Decisions Review Act NSW 1997 – request for internal review

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Interpretation Act 1987 (NSW)

Category:

Procedural rulings

Parties:

Michael Constance Diamond (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Hartman & Associates (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/00045826

Publication restriction:

None

REASONS FOR DECISION

1. On 16 February 2022, Mr Michael Diamond (“the applicant”) lodged with the Tribunal an application for administrative review of a decision made by the Commissioner of Police (“the respondent”) on 24 December 2021. The decision which is the subject of review is a notice of refusal for a category A firearms licence under the Firearms Act 1996.

2. It is not in dispute that when considering the substantive application, the provisions of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”) are apposite. Section 55 of the ADR Act provides:

55   Making of applications

(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).

(4)  However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

(a)  the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or

(b)  it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

(5)  In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to:

(a)  the time when the applicant became aware of the making of the decision, and

(b) in a case to which subsection (4) (a) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c)  such other matters as it considers relevant.

(6)  The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests.

(emphasis added)

3. It was identified at a directions hearing on 5 April 2022, that the applicant did not lodge a request for an internal review of the respondent’s decision in accordance with s 55(3) of the ADR Act. For this reason, the Tribunal is to determine whether the substantive proceeding can proceed.

4. Orders were made for the parties to file submissions concerning whether leave for the applicant to proceed should be granted pursuant to s 55(4)(a) of the ADR Act. For the reasons given below, leave for the applicant to proceed is not required.

Background

5. It is not in dispute that the applicant was served with the notice of refusal on 24 December 2021. He lodged an internal review request (“IRR”) with the firearm registry of the respondent on 24 January 2022.

6. The firearm registry rejected the IRR stating that it was out of time according to s 76 of the Interpretation Act NSW 1987 (the “Interpretation Act”).

7. The applicant argues that the 28 day time period to lodge the IRR runs from the day after the decision was received, that being 25 December 2021. In support of this submission, reference to s 36 of the Acts Interpretation Act 1901 is made. If the Tribunal accepts this contention, the applicant submits that the IRR was made within 28 days as required by s 53(2)(d) of the ADR Act, that date being 24 January 2022.

8. The respondent submits, that, if the above analysis of the reckoning of time is accepted, then the IRR was lodged within time. Therefore, the IRR is taken to be determined 21 days after it was received by the respondent, that being 14 February 2022. Noting that the application for administrative review was lodged in the Tribunal on 16 February 2022, it was lodged within the 28 day period, commencing from 14 February 2022.

Relevant legislation

9. Section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) provides, that proceedings can be determined on the papers by an order dispensing with an oral hearing. The parties agree to such an order, which I make.

10. Relevantly, s 53 of the ADR Act 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: 

(a) to be in writing, and 

(b) to be addressed to the administrator concerned, and 

(c) to specify an address in Australia to which a notice under subsection (6) may be sent, and 

(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.

…

(6) Notice of result of review and appeal rights Within 21 days after the application for the internal review is lodged (or such other period as the administrator and person agree on), the administrator must notify the applicant in writing of: 

(a) the outcome of the internal review, and 

(b) the reasons for the decision in the internal review, and 

(c) the right of the person to have the decision reviewed by the Tribunal.

…

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

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. 

…

(emphasis added

11. The Interpretation Act provides at s 36:

36 RECKONING OF TIME 

(1) If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event. 

(2) If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls-- 

(a) on a Saturday or Sunday, or 

(b) on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done, 

the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be.

My consideration

12. The decision of the respondent was received by the applicant on 24 December 2021. The time for the applicant to lodge an IRR runs for 28 days (s 53(2)(d) of the ADR Act) from 25 December 2021, that date being 22 January 2022, which is a Saturday. I find, therefore, when applying s 36(2)(a) of the Interpretation Act, the last date for lodging the IRR would be Monday 24 January 2022, which is the day the respondent received the IRR. The IRR has been lodged within the time prescribed.

13. It is not in dispute, that the respondent rejected the IRR and it did not make a internal review decision pursuant to s 53(6) of the ADR Act. I find, therefore, that s 53(9)(b) of the ADR Act applies. The applicant could lodge an application with this Tribunal seeking a review of the IRR, or where the respondent failed to make a decision about the IRR within 21 days after 24 January 2022, that date being 14 February 2022.

14. I find that the application for administrative review, being filed on 16 February 2022, has been filed within the prescribed 28 days after 14 February 2022.

15. For these reasons, the application is not out of time, and therefore, there is no requirement to make an order pursuant to s 55(4)(a) of the ADR Act.

16. The proceedings will be fixed by the Registry for a directions hearing.

Orders

1. The interim application is to be determined on the papers, and dispensing with a hearing, pursuant to s50(2) Civil and Administrative Tribunal Act 2013.

2. The substantive application has been filed within time.

3. The Tribunal has jurisdiction to determine the proceedings.

4. The matter is to be fixed for a directions hearing by the Registrar.

**********

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: 30 June 2022