| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIREARMS ACT 1973 (WA) CITATION : JEFFRIES and COMMISSIONER OF POLICE [2011] WASAT 116 MEMBER : MS L WARD (MEMBER) HEARD : 19 JULY 2011 DELIVERED : 1 AUGUST 2011 FILE NO/S : CC 1756 of 2010 BETWEEN : FREDDIE JEFFRIES Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords: Firearms Act 1973 (WA) Licence already issued Additional licence of the same kind in relation to further firearm Application for expedited approval or originating application Where expedited approval then additional licence maybe noted on original licence Legislation: Firearms Act 1973 (WA), s 11(1)(c), s 16, s 18, s 18(8), s 18(9), s 18(10)
State Administrative Tribunal Act 2004 (WA), s 47
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Result: The application is dismissed Category: B
Representation: Counsel:
Applicant : Mr H Jackson
Respondent : Senior Constable S Bagley (Acting as Agent)
Solicitors:
Applicant : Pilbara Community Legal Service
Respondent : Commissioner of Police
Case(s) referred to in decision(s):
Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Laurent and Commissioner of Police [2009] WASAT 254
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The application concerned whether or not the Tribunal has jurisdiction to review the decision made by the Commissioner of Police on 30 August 2010 under s 18(8) of the Firearms Act 1973 (WA) to refuse the applicant a firearm licence in relation to two firearms. 2 The preliminary question arose because the Commissioner of Police applied to the Tribunal to have the application for review dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA). The application to dismiss was made on the basis that Mr Jeffries' Licence No 3144128, which was already issued at the time of the licence application for two additional firearms, had since expired. The Commissioner of Police submitted that the application for two additional firearms was not a fresh application and that it attached to the original Licence No 3144128. The Commissioner of Police submitted that therefore the application for the additional firearms had expired at the same time as Licence No 3144128. 3 Counsel for Mr Jeffries submitted that the Firearms Act 1973 provided that in the circumstances of this matter the application for the additional two firearms was an additional licence. Where the application proceeds by way of 'expedited approval' then, if the Commissioner of Police is satisfied of certain matters in accordance with s 18(10) of the Firearms Act 1973, the additional licence may be noted on the original licence. Counsel for Mr Jeffries submitted that this construction of the Firearms Act 1973 meant that the application for the additional firearms licence was an application for an additional licence. Therefore, the additional licence was not dependent on the existence or otherwise of Licence No 3144128. 4 In the Tribunal's view, s 18(10) of the Firearms Act 1973 indicates that applications for further firearms are additional licences in the circumstances set out in the section. Therefore, the applications for further firearms are separate under that subsection and do not rely on or depend on any existing licence for their effect. In the Tribunal's view, the fact that the additional licence may be noted on the original licence does not make it part of, or dependent on, the original licence. 5 Accordingly, the answer to the preliminary question is yes, the Tribunal does have jurisdiction to review the decision made by the Commissioner of Police on 30 August 2010 under s 18(8) of the (Page 4)
Firearms Act 1973 to refuse the applicant a firearm licence in relation to two firearms. 6 It follows from the finding that the Tribunal does have jurisdiction, that Mr Jeffries' application for review does not lack substance. Therefore the application by the Commissioner of Police made under s 47 of the State Administrative Tribunal Act 2004 to dismiss Mr Jeffries' application for review is dismissed. 7 Below is an edited and revised version of the reasons for decision of the Tribunal which has been taken from the transcript of proceedings of the decision and the oral reasons for decision given on 19 July 2011.
Background facts 8 On 23 December 2008, Mr Jeffries applied to license two low powered firearms. This application was subsequently approved in or about January 2009 and Licence No 3144128 was granted at Jigalong Police Station. Licence No 3144128 was subsequently renewed by Mr Jeffries on 8 June 2010. 9 Mr Jeffries also applied for an additional licence on 8 June 2010 to licence two additional firearms. On 30 August 2010, the Commissioner of Police refused to license the additional two firearms, as he found that Mr Jeffries was not a fit and proper person under s 11(1)(c) of the Firearms Act 1973 (WA) (Firearms Act). On 11 October 2010, the Commissioner of Police served Mr Jeffries with the refusal decision. 10 On 30 August 2010, Mr Jeffries' Licence No 3144128 was also revoked and that revocation decision was served on Mr Jeffries on 11 October 2010 as well.
Application for review in the Tribunal 11 The application for review before the Tribunal is the application for review of the decision to refuse to license two additional firearms. That application was lodged with the Tribunal on 29 December 2010. After several adjournments in order for the applicant to obtain legal representation, the matter was listed for hearing on 19 July 2011. 12 However, on 10 June 2011, the Commissioner of Police advised the Tribunal that in preparing the matter for hearing he had become aware that Mr Jeffries' Licence No 3144128 had expired on 22 January 2011. The Commissioner of Police wrote to the Tribunal stating that he intended to seek an order that the proceedings be dismissed due to the jurisdiction (Page 5)
of the Tribunal having ceased when the firearm licence the subject of the proceedings expired, that is, Licence No 3144128, which had previously been revoked. 13 On 10 June 2011, Mr Jeffries' solicitors wrote and requested that the matter be listed for directions urgently. The matter was listed for directions on 16 June 2011.
Preliminary issue 14 On 16 June 2011 the Tribunal listed the preliminary issue for hearing on 19 July 2011, namely: • Does the Tribunal have jurisdiction to review the decision made by the Commissioner of Police on 30 August 2010 under s 18(8) of the Firearms Act to refuse a firearm licence in relation to two additional firearms?
Submissions from the Commissioner of Police 15 On 30 June 2011, the Commissioner of Police filed written submissions on the preliminary issue and in support of its application to dismiss the application under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 16 In essence, the Commissioner of Police submits that the two additional firearms sought by Mr Jeffries cannot be noted on Licence No 3144128 because that licence no longer exists. Licence No 3144128 was revoked in 2010 and has subsequently expired in 2011.
Submissions from Mr Jeffries 17 On 8 July 2011, the applicant filed its written submissions on the preliminary issue and in opposition to the application to dismiss the review made by the Commissioner of Police. 18 Mr Jackson represented Mr Jeffries at the hearing of the application and submitted, in summary, that the two additional firearms do not depend on an underlying licence for their validity. This is due to the operation of s 18 of the Firearms Act. In particular, counsel for Mr Jeffries submitted that a proper construction of s 18(10) of the Firearms Act meant that the additional firearms are an application for an additional licence. Therefore all applications for firearms are freestanding and are not tied to an existing licence, if any, unless and until the Commissioner of Police exercises his (Page 6)
discretion under s 18(10) of the Firearms Act to note the additional licence on the existing licence.
Consideration by the Tribunal 19 The Tribunal has considered the various relevant sections of the Firearms Act, including s 16 which deals with the types of licences which may be issued under the Firearms Act. They include a firearm licence, a firearm collector's licence, a corporate licence, a dealer's licence, a repairer's licence, a manufacturer's licence, a shooting gallery licence and an ammunition collector's licence, among others. 20 Section 18, in the Tribunal's view, is critical to this application and it deals with the licensing procedures under the Firearms Act. In particular, s 18(9) of the Firearms Act is important in the Tribunal's view, and it states: Licences of more than one kind may be issued to the same person in one document, and a licence may relate to more than one firearm. 21 Section 18(10) of the Firearms Act is also, in the Tribunal's view, critical, and it states: Where a licence has been issued to any person and that person applies for an additional licence of the same kind in relation to a further firearm that additional licence may, on presentation of an application for expedited approval accompanied by the prescribed noting fee, be noted on the original licence in any case where the Commissioner is satisfied that the public interest does not require that the applicant should proceed by way of an originating application. (Emphasis added) 22 It is clear to the Tribunal from the words of s 18(10) of the Firearms Act that when an application is made to the Commissioner of Police it can be by way of an originating application or, in certain circumstances, it may be an application for expedited approval. 23 In this case, Mr Jeffries applied to the Commissioner of Police seeking the inclusion of two additional firearms and noted on his application that it was an additional application under the Firearms Act. 24 In the Tribunal's view, s 18(10) of the Firearms Act indicates that all applications are separate under that subsection and they do not rely on, or depend on, any existing licence for their effect. Although, if the Commissioner of Police is satisfied of certain matters or things, the Commissioner can, in effect, note that additional licence on the original licence. In the Tribunal's view, the fact that it can be noted on the original (Page 7)
licence does not make it part of, or dependent on, what may be called the original licence, but it is actually a separate and additional licence. 25 Accordingly, the answer to the preliminary question is yes, the Tribunal does have jurisdiction to review the decision made by the Commissioner of Police on 30 August 2010 under s 18(8) of the Firearms Act to refuse the applicant a firearm licence in relation to two firearms. 26 It follows from the answer to the preliminary question that the application for review by Mr Jeffries is not 'so obviously untenable that it cannot possibly succeed', that quotation being part of the test that is well established in the Tribunal in relation to applications for a proceeding to be dismissed and which is set out in Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 (Ambrus) at [8]. Ambrus is a decision of the Tribunal by the then Deputy President Judge Chaney which has been cited subsequently in Laurent and Commissioner of Police [2009] WASAT 254 and several other Tribunal cases. Therefore, the application by the Commissioner of Police under s 47 of the SAT Act to dismiss Mr Jeffries' application for review is dismissed.
Conclusion 27 For the brief reasons set out above, although Mr Jeffries' Licence No 3144128 which he held at the time of his application is no longer in existence, the decision to refuse the application for additional firearms, in the Tribunal's view, is a separate application and capable of being the subject of a review before the Tribunal. 28 Accordingly, the Commissioner of Police application for dismissal is dismissed. The application will now be programmed for hearing of the substantive application for review.
Order 29 On the application heard before Member Lisa Ward on 19 July 2011, it is ordered that: 1. On the preliminary issue, 'Does the Tribunal have jurisdiction to review the decision made by the respondent on 30 August 2010 under section 18(8) of the Firearms Act 1973 (WA) to refuse a firearm licence in relation to two firearms?', the Tribunal answers yes, for the reasons given. (Page 8)
2. By 5 August 2011, the applicant must file with the Tribunal and give to the respondent its own statement of issues, facts and contentions setting out: 3. The applicant must at the time it files and gives its statement of issues, facts and contentions, file with the Tribunal and give to the respondent an indexed and paginated bundle in chronological or other logical order of the documents on which it proposes to rely in the proceeding not in the respondent's bundle. 4. If any party proposes to give evidence or call any witness, including any expert to give evidence at the hearing it must by 19 August 2011 file with the Tribunal a signed statement of the witness' evidence and give a copy of the statement to the other parties. 5. The matter is listed for a final hearing to commence at 10 am on Friday, 26 August 2011 for a duration of one day. |