ELMORE NOMINEES PTY LTD and COMMISSIONER OF POLICE
[2007] WASAT 141
•5 JUNE 2007
ELMORE NOMINEES PTY LTD and COMMISSIONER OF POLICE [2007] WASAT 141
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 141 | |
| FIREARMS ACT 1973 (WA),STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA) | |||
| Case No: | CC:381/2007 | 22 MAY 2007 | |
| Coram: | DR B DE VILLIERS (MEMBER) | 5/06/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | The application for review of the decision to revoke the applicant's firearm dealer licence succeeds The decision to revoke the licence is set aside The Firearm Dealer's Licence 9992398 must be reinstated within 14 days from the date of these orders | ||
| B | |||
| PDF Version |
| Parties: | ELMORE NOMINEES PTY LTD COMMISSIONER OF POLICE |
Catchwords: | Firearm dealer licence Revocation of licence on grounds that it is not required for purposes of the applicant's occupation |
Legislation: | Firearms Act 1973 (WA), s 4, s 11, s 11(1), s 11A, s 11A(1), s 11A(2)(d), s 22, s 22(2) State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 27(3), s 29(1), s 29(3), s 29(5), s 31, s 32(2)(a), s 32(4) |
Case References: | Clema and Commissioner of Police [2006] WASAT 24 Re Brown; Ex parte Scudds, (1995) 14 WAR 270 |
Orders | 1. The application for review of the decision to revoke the applicant's firearm dealer licence succeeds.,2. The decision to revoke the licence is set aside.,3. The Firearm Dealer's Licence 9992398 must be reinstated within 14 days from the date of these orders. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIREARMS ACT 1973 (WA)
- STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
- Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearm dealer licence - Revocation of licence on grounds that it is not required for purposes of the applicant's occupation
Legislation:
Firearms Act 1973 (WA), s 4, s 11, s 11(1), s 11A, s 11A(1), s 11A(2)(d), s 22, s 22(2)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 27(3), s 29(1), s 29(3), s 29(5), s 31, s 32(2)(a), s 32(4)
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Result:
The application for review of the decision to revoke the applicant's firearm dealer licence succeeds
The decision to revoke the licence is set aside
The Firearm Dealer's Licence 9992398 must be reinstated within 14 days from the date of these orders
Category: B
Representation:
Counsel:
Applicant : Mr AO Karstaedt
Respondent : Sergeant M Lynch
Solicitors:
Applicant : Vertannes Georgiou
Respondent : Commissioner of Police
Case(s) referred to in decision(s):
Clema and Commissioner of Police [2006] WASAT 24
Re Brown; Ex parte Scudds, (1995) 14 WAR 270
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Summary of Tribunal's decision
1 The applicant applied for a review of the decision by the respondent to revoke its firearm dealer licence on grounds that the licence is not required in the course of the applicant's profession and it is not in the public interest for the applicant to be licensed.
2 The applicant specialises in the sale of surplus and second-hand military equipment but, according to the respondent, the applicant's main business does not require a firearm dealer licence.
3 The respondent referred to what it regards as low volume trading in rifles by the applicant over the past decade. The respondent concluded that the applicant could, if it obtains a second-hand rifle from time to time, utilise another dealer to render the rifle innocuous, whereafter the applicant could sell the rifle without the need to be licensed as a dealer.
4 The respondent contended that the low record of sales of the applicant is indicative that it does not require a dealer licence for its occupation, that its main business is the selling of other military and camping equipment for which no dealer licence is required, and that it could use the services of other dealers to render rifles innocuous before the applicant sells them to the public.
5 The applicant, through a director, Mr Starke, sought review of the decision on grounds that although it has had a low turnover in second-hand rifles, it can be attributed to the scarcity of the type of rifles in the market, the competition to get hold of rifles and the specialised nature of the business. He contended that if he were to use another dealer, the applicant would stand the risk of that dealer becoming aware of its contacts, and competitors could then gain a commercial edge on his company. He provided evidence to show that the applicant is keen to expand its business and tendered evidence to show the recent acquisition of 30 .303 rifles.
6 The Tribunal found in favour of the applicant on grounds that it has been shown that the dealer licence is required for the occupation of the applicant. Although the main source of commercial activity is not necessarily the selling of decommissioned rifles, the applicant has a track record and an undisputed intention to access and open new markets for the conduct of its business. The applicant therefore meets the requirements of
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- the Firearms Act1973 (WA), namely, that it has a genuine reason to be licensed for the purposes of its occupation.
7 Flowing from the conclusion, orders were made for the decision of the respondent to be set aside and for the dealer licence to be reinstated.
Background and statutory framework
8 The applicant trades as "Wellington Surplus Stores" in Perth. It specialises in buying and selling surplus military equipment, replica swords, knives and second-hand firearms. The type of firearms it shows interest in are linked with the two world wars, the Korean War and other conflicts in which Australia had an involvement.
9 The respondent held Firearm Dealer Licence No 9992398 until it was revoked in 2006 by the respondent. According to the respondent it had done an audit in firearms dealers and had found that the applicant has, for all practical purposes, not been using its dealer licence to an extent that justifies it being licensed. The data supplied by the applicant to the respondent showed that no sales of firearms had taken place since October 2003 and prior to that the last transaction was conducted on 22 February 1999. The respondent therefore formed the view that the applicant would not, if it were to apply now for a dealer licence, be successful and that revocation of the licence was, therefore, in the public interest.
10 The delegated officer wrote to the applicant on 22 December 2006 to inform it that its dealer licence was being revoked on grounds of the inactive use thereof.
11 The application for review of the decision was lodged on 6 March 2007. The application for review was lodged under s 22 of the Firearms Act1973 (WA) (Firearms Act). Section 22(2) of the Firearms Act enables a person aggrieved by a decision by or on behalf of the Commissioner to seek a review thereof. The decision in this matter was communicated to the applicant on 22 December 2006 and was made by Detective Inspector Garry Annetts from the Organised Crime Division as the delegated officer. The respondent filed a statement of issues, facts and contentions in support of its decision on 23 April 2007.
12 The Tribunal has, in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) the same jurisdiction, functions and discretions as those of the delegated officer. The Tribunal is not limited to the statement of reasons given by the delegated officer:
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- s 27(3) of the SAT Act. The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time when the decision was made: s 27(1) of the SAT Act.
13 The Tribunal inquired, at the hearing, from Sergeant Lynch if, in light of the additional information that had been provided by the applicant since the revocation of its licence, the respondent would be interested to revisit its decision. Sergeant Lynch declined the invitation and reiterated the position of the respondent as set out in its reasons for decision.
14 The review hearing is de novo (s 27(1) of the SAT Act) and is not confined to the matters and information that were before the decision-maker at the time of the decision.
15 The powers of the Tribunal according to s 29(3) of the SAT Act are to –
"(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision;
and to make appropriate orders."
17 Key provisions of the Firearms Act dealing with the regulation of dealer licences are:
18 Long title of the Firearms Act: "An Act to make provisions for the control and regulation of firearms and ammunition, the licensing of persons possessing, using, dealing with or manufacturing firearms and ammunition ... "
"11. Exercise of Commissioner's discretion:
(1) The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that —
(a) to do so would be contrary to section 11A or regulations under section 11B or 11C;
- …
- 11A. Genuine reason required in all cases
(1) An approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person who, in the Commissioner's opinion, has not been shown to have a genuine reason for acquiring or possessing the firearm or ammunition for which the approval, permit, or licence is sought. (Own emphasis.)
(2) A person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if —
…
(d) it is required by the person in the course of the person's occupation;
... "
19 The statement of issues, facts and contentions dated 23 April 2007, read together with the submissions made by Sergeant Lynch during the hearing, constitute the reasons for decision of the respondent. The Tribunal has taken all of the information into account in coming to its decision.
20 The key contentions made by the respondent can be summarised as follows:
21 The applicant does not primarily trade in second-hand firearms but rather specialises in the sale of other military goods for which no firearm dealer licence is required. To the extent that the applicant deals in firearms that have been rendered innocuous, there is no need for a dealer licence, since the work to decommission a rifle can be done by a licensed dealer and the applicant can then sell the rifle.
22 The audit undertaken by the respondent indicated that since 8 October 2003 until the decision was made, no transactions had been reported in the dealer licence. Prior to that date, the last transaction was recorded on 22 February 1999. The applicant had, since 1989, submitted
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- 216 monthly returns in regard to the dealer licence, and of those, 212 reported no transaction with four showing activity. Over the past 18 years, therefore, four returns had been recorded.
23 The applicant does not require a dealer licence since its main business involves trading in items that do not require a dealer licence, and in those ad hoc circumstances where a second-hand rifle is purchased, it can be sent to another dealer for deactivation, whereafter the applicant can sell it. The applicant also does not require a dealer licence for importing shipments of resin, plastic replica firearms or starter pistols.
24 The onus is on the applicant to satisfy the Tribunal as decision-maker that it has a genuine reason for a dealer licence. On the basis of the available evidence, the applicant does not require a dealer licence for its occupation and it would not, if it had applied for a dealer licence today, be successful in its application.
25 The respondent referred the Tribunal to the decision in Clema and Commissioner of Police [2006] WASAT 24, which according to Sergeant Lynch was "on the point" and in support of the respondent's contentions.
Grounds for review by the applicant
26 The statement of issues, facts and contentions received by the Tribunal on 11 May 2007, read with the submissions made Mr Karstaedt and the evidence given by Mr Starke, have all been taken into account by the Tribunal in coming to its decision.
27 The key contentions made by the applicant can be summarised as follows:
28 The applicant used to have two dealers' licences, namely 9992398 and 9993553. Both licences were revoked in 2006. Until the buy-back of firearms in 1997, the business was active in purchasing and selling of firearms. Since the buy-back, the applicant has focused on purchasing rifles (particularly .303) from the two world wars, the Korean war and other conflicts in which Australia had involvement. The applicant's business is to buy firearms, render them innocuous and then sell them to the public as memorabilia for which no firearm licence is required.
29 The second-hand market for such rifles is very competitive and although the applicant has not been very successful in obtaining rifles, it is not for want of trying. The applicant tendered evidence that in
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- February 2007, after the revocation of its dealer licence, it acquired 30.303 rifles from India. The rifles have been delivered to a gunsmith. Those rifles will be decommissioned as the need arises and buyers take up the offer to buy one or more. The applicant is seeking to expand its business and believes that, with the closing of some of its competitors, it may be more successful to acquire and sell rifles. The applicant has a standing order with Fyshwick Firearms in Canberra to find rifles that may of interest to it.
30 Mr Starke also gave evidence that he and his brother constantly review magazines, the internet and international gun fairs for rifles. The nature of the business is, however, sporadic and an opportunity must be taken up as it appears.
31 Mr Starke concluded that it is neither fair, practical nor does it make commercial sense to be forced to use another dealer to store and decommission rifles on behalf of the applicant. Dealers are often in competition and it would not make commercial sense to disclose the name of a supplier to another dealer. It also adds cost to pay another dealer for what the applicant can do in-house if it were licensed. Account must also be taken that if the applicant acquires a large number of rifles, as happened recently, it may not immediately have buyers for all the rifles and it may want to store rifles and decommission them over a period of time as the market demands it. In August 2004 when the applicant acquired 13 .303 rifles, it had to wait more than a year for another dealer to deactivate the rifles. As a result, sales and profits were forfeited. The applicant would therefore prefer to decommission rifles as a market is found, rather than to pay another dealer or gunsmith to render all the rifles innocuous.
32 Section 11A(2)(d) of the Firearms Act acknowledges that a person has a "genuine reason" to be licensed as a dealer if it is necessary for the person's occupation. "Dealer" is defined by the Firearms Act as "a person who in the ordinary course of business buys, sells and trades in firearms and ammunition". The applicant meets the requirements of the Firearms Act and the decision to revoke its dealer licence should therefore be set aside.
Consideration
33 This review is conducted by way of a hearing de novo. The Tribunal's consideration of the application is therefore not confined to the matters that were before the delegated officer when the decision was made (s 27(1) of the SAT Act.)
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34 Since the revocation of the dealer licence, the applicant had acquired 30 .303 rifles from India. This is more rifles than in the period of audit put together. Mr Starke also gave evidence that the applicant has a standing order with Fyshwick Firearms for second-hand rifles. The Tribunal inquired from Sergeant Lynch if the new information might give reason for the respondent to reconsider that the matter be referred back to it for reconsideration pursuant to s 31 of the SAT Act. Sergeant Lynch responded in the negative.
35 The Tribunal is placed in the position as delegated officer under the Firearms Act. The Tribunal is not limited in its review to the reasons for decision by the delegated officer but can take new information into account prior to making its decision. The purpose of the review is therefore for the Tribunal, as delegated officer, to produce a correct and preferable decision: s 27(2) of the SAT Act).
36 In the same way that the applicant had to satisfy the delegated officer that it continues to fulfil the requirements of the Firearms Act to retain its dealer licence, it now has to satisfy the Tribunal that if it were to apply for a dealer licence today, it would be issued. The Tribunal has to rely on the Firearms Act and all relevant evidence and information to determine if the application for review must succeed.
37 The Tribunal is not bound by the rules of evidence (s 32(2)(a) of the SAT Act) and may "inform itself on any matter it sees fit" (s 32(4) of the SAT Act).
38 In considering the application, the Tribunal has taken into account the written and oral evidence, the exchange of correspondence and the submissions made by the parties.
39 The Firearms Act makes provision in the long title for the "control and regulation of firearms" and stipulates that the delegated officer "cannot" issue a permit for a licence if he is "of the opinion" … (s 11(1) of the Firearms Act). Section 11A(1) further provides that "a licence cannot be issued" to a person who in the "opinion" of the delegated officer "has not shown to have a genuine reason for acquiring or possessing the firearm … " Section 11A(2)(d) of the Firearms Act provides that a "genuine reason" is if a person requires to be licensed "in the course of the person's occupation." (Own emphasis.)
40 These provisions provide the delegated officer with the discretion to take into account information that is relevant and applicable to the specific application under consideration to determine if a licence can be issued.
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- The discretion of the delegated officer is, however, not unlimited. It has to be exercised within the framework of the Firearms Act and in particular against the provisions of s 11 and s 11A of the Firearms Act.
41 This has been confirmed by the Supreme Court of Western Australia in ReBrown; Ex parte Scudds, (1995) 14 WAR 270, where the court held that "the grant of a licence under s 22 of the Firearms Act 1973 (WA), is discretionary and it will not be granted if the commissioner, or a magistrate on appeal, determines that the applicant does not have a 'good reason' within s 11." (Own emphasis.)
42 The Tribunal now turns to the requirements of the Firearms Act and the evidence and submissions of the parties.
43 Section 11A(1) precludes the delegated officer from issuing a licence if in his opinion the applicant has not shown to have a "genuine reason" for possessing the firearms.
44 The respondent disputes the reason to be licensed put forward by the applicant on the basis of its history of trading and that the main operations of the applicant are not dealing in firearms. The "genuine reason" provided by the applicant is that it has a track record of dealing in second-hand firearms, that it is a competitive milieu but the recent acquisition of 30 .303 rifles, demonstrates continued interest in the area, that it is not commercial to use a third party to receive and decommission rifles and that the Firearms Act does not refer to "main occupation" but merely to "occupation".
45 The Tribunal accepts the evidence and contention of the applicant. Although its trade record in second-hand firearms is sparse, the applicant has shown that it specialises in a niche market in which it trades in a combination of second-hand war rifles, camping equipment, tracking equipment, clothes, knives and other war and army paraphernalia. The evidence of Mr Starke that second-hand .303s are scarce and that the scarcity might have contributed to low turnover, was not contested by Sergeant Lynch.
46 The Tribunal further accepts that a dealer licence is not merely retrospective but must also be prospective. The intention of the applicant and the actions it takes to expand its business must therefore be taken into account by the Tribunal.
47 The suggestion that the applicant should hand the rifles it acquires to another dealer to store and to decommission is neither reasonable nor
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- practical. The Tribunal accepts the explanation by Mr Starke why the imposition of a middleman would not only affect the profitability of the business, but may also lead to confidential information becoming available to the applicant's competitors.
48 The Tribunal also accepts that if a large batch of rifles is found – such as the recent 30 .303 rifles – the applicant may want to stagger the process of decommissioning of the rifles to coincide with buyers being secured. Otherwise he would have to face the lay-out costs for all 30 rifles to be decommissioned without any buyer being secured.
49 The Tribunal does not agree with Sergeant Lynch that the Clema matter is a case on point. In fact, the opposite applies. In the Clema matter, the applicant was not an active dealer in firearms; he was a geologist by trade, he described his trade in firearms as a "hobby business" and he confirmed that he had not had any dealings between 1997 to March 2005. He further did not have any intention of engaging in active firearm dealing. Hence the finding of the Tribunal that "(W)e are satisfied on the evidence that the applicant has not engaged in the occupation of firearms' dealer for many years and he has no present intention of doing so." (Tribunal emphasis.) The Tribunal in that matter went on to find that in light of the fact that the applicant described his interest as a "hobby" rather than a "business", he might pursue a collector's licence rather than a dealer's licence. (Par 33 of the decision.)
50 None of the above, as set out by the Tribunal in the Clema matter, applies to these proceedings.
51 According to the evidence before the Tribunal, the applicant has shown that it complies with the definition of a "dealer" in the Firearms Act, which means a "person who in the ordinary course of business buys, sells or trades in firearms and ammunition" (s 4 of the Firearms Act).
52 The Tribunal, in summary, accepts Mr Starke's evidence on behalf of the applicant, namely, that:
• it is indeed involved in the trading of firearms within the meaning of the Firearms Act;
• its activities and business intentions must be considered retrospectively and prospectively;
• it fills a niche market;
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- • although its main business is not the trading of rifles, trading in decommissioned rifles forms part of its overall business plan and activities;
• it has a sound rationale for not wanting to use a middleman to store and decommission the rifles; and
• it requires the dealer's licence for purposes of its occupation.
Finding
53 The Tribunal finds that the applicant has shown to the satisfaction of the Tribunal that:
(a) the applicant has shown to have a genuine reason for a dealer's licence to be issued;
(b) the licence is required by the applicant in the course of its occupation pursuant to s 11A(2)(d)of the Firearms Act;
(c) the grant of a dealer licence to the applicant would not be contrary to s 11A of the Firearms Act;
(d) it is not against the public interest for the applicant to be licensed as a dealer; and
(e) as decision-maker pursuant to s 11(1) of the Firearms Act, the Tribunal may reinstate the licence.
Orders
1. The application for review of the decision to revoke the applicant's firearm dealer licence succeeds.
2. The decision to revoke the licence is set aside.
3. The Firearm Dealer's Licence 9992398 must be reinstated within 14 days from the date of these orders.
- I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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