Kazolis v ACT Registrar of Firearms
[2017] ACAT 48
•10 April 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
KAZOLIS v ACT REGISTRAR OF FIREARMS
(Administrative Review) [2017] ACAT 48
AT 92/2015
Catchwords: ADMINISTRATIVE REVIEW – witness statements filed in Tribunal proceeding – Harman obligation – use of statements for other purposes: evidence in prosecutions for offences; investigation of offences; and support for a decision to cancel a firearms licence nunc pro tunc – whether Harman obligation arises where documents not produced under compulsion
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 56
Criminal Code 2002
Firearms Act 1996 ss 177, 256
Human Rights Act 2004 s 22
Cases cited:Ashby v Slipper (No2) [2016] FCA 550
Australian Vocational Driving Institute Pty Ltd v State of Victoria and Anor [2014] VCC 480
Bashour v ANZ Banking Group Ltd [2017] FCA 163
Commonwealth v Temwood Pty Ltd and Ors [2001] WASC 282
Council of the Law Society of the ACT v Legal Practitioner 1 [2016] ACAT 76
Esso Australia Resources Ltd and Ors v Plowman and Ors (1995) 183 CLR 10
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
King v AG Australia Holdings Ltd (2002) 121 FCR 480
Laen Pty Ltd v At the Heads Pty Ltd and Ors [2011] VSC 315
Liberty Funding Pty Limited v Phoenix Capital Limited (2005) 218 ALR 283
North East Equity Pty Ltd v Goldenwest Equities Pty Ltd [2008] WASC 190
Re Springfield Nominees Pty Ltd v BridgelandsSecurities Ltd (1992) 38 SCR 217
Rowe v Silverstein & Ors [2009] VSC 157
Sentry Corporation v Peat Marwick Mitchell & Ors (1990) 24 FCR 463
Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138
Tribunal: Presidential Member G McCarthy
Date of Orders: 10 April 2017
Date of Reasons for Decision: 3 July 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 92/2015
BETWEEN:
GEORGE KAZOLIS
Applicant
AND:
ACT REGISTRAR OF FIREARMS
Respondent
TRIBUNAL: Presidential Member G McCarthy
DATE:10 April 2017
ORDER
The Tribunal Orders that:
The Commissioner of the Australian Federal Police and the ACT Director of Public Prosecutions have leave to use the statements of George Kazolis dated 26 February 2016 and 14 April 2016, the statutory declaration of Constantine Kazolis dated 6 April 2016 and the statement of Constantine Kazolis dated 14 April 2016 filed in this proceeding, AT 92 of 2015, for the following purposes:
(a) the conduct of investigations by the Australian Federal Police as to whether offences have occurred against the Firearms Act 1996 or the Criminal Code 2002 (ACT);
(b) to obtain advice in relation to whether any offences have occurred against the Firearms Act 1996 or the Criminal Code 2002; and
(c) in evidence in Supreme Court proceedings SCC 45 of 2017 and SCC 46 of 2017.
The Registrar of Firearms has leave nunc pro tunc to use the statement of Constantine Kazolis dated 14 April 2016 filed in this proceeding, AT 92 of 2015, for the following purposes:
(a) making his decision, by letter dated 27 April 2016, to cancel the firearms licence of Mr Constantine Kazolis; and
(b) in evidence in ACT Civil and Administrative Tribunal proceeding AT 27 of 2016.
……………Signed…………..
Presidential Member G McCarthy
REASONS FOR DECISION
Background
By application dated 30 November 2015, the applicant, George Kazolis, seeks review of a decision made by the respondent, the ACT Registrar of Firearms (the Registrar), to cancel his firearms licence.
On 15 February 2016, the Tribunal ordered the applicant to file and serve any witness statements upon which he intended to rely at the hearing of his application.
In response to that order, the applicant filed two witness statements both signed by himself dated 26 February and 14 April 2016. He also filed a statutory declaration dated 6 April 2016 and a witness statement dated 14 April 2016 both signed by his son, Constantine Kazolis. These three statements and the statutory declaration are referred to collectively in these reasons for decision as ‘the Statements’.
None of the Statements has been formally read to form part of the evidence in this proceeding. On 19 April 2016, the substantive application was adjourned pending the outcome of Supreme Court proceeding SCC 46 of 2017 referred to in paragraph 5(a) below.
By interim application dated 7 March 2017, the Registrar applied for the following orders:
(a)That the Australian Federal Police (AFP) have leave to use the Statements for the purpose of investigating whether offences have occurred against the Firearms Act 1996 and/or the Criminal Code 2002 (ACT); to obtain advice in relation to whether any offences have occurred against the Firearms Act 1996 and/or the Criminal Code 2002; and as evidence in the prosecution of Mr G Kazolis for offences against the Firearms Act 1996 and/or the Criminal Code 2002 in Supreme Court proceeding SCC 46 of 2017 and as evidence in the prosecution of Mr C Kazolis in Supreme Court proceeding SCC 45 of 2017.
(b)That the Registrar have leave to use the statement dated 14 April 2016 of Mr C Kazolis nunc pro tunc in support of the Registrar’s decision made on 27 April 2016 to cancel Mr C Kazolis’ firearms licence (the Decision) and as evidence in Tribunal proceeding AT 27 of 2016, being a proceeding in which Mr C Kazolis has applied for review of the Decision.
The phrase nunc pro tunc translates as ‘now for then’. At law, it entails a ruling with retroactive or retrospective legal effect to correct an earlier legal error (in this case, the Registrar’s use of the statement to make his Decision without first obtaining leave of the Tribunal to use it for that purpose).
On 7 April 2017, I heard the Registrar’s interim application. Dr D Jarvis of counsel appeared for the Registrar. Mr B Buckland of counsel appeared for Mr G Kazolis. At the conclusion of the hearing, I reserved my decision.
On 10 April 2017, I decided the application by making the above orders. The Registrar later requested reasons for my decision, and I now publish my reasons.
Consideration
The Registrar’s interim application arose from the so-called Harman principle or Harman obligation, which provides that leave is necessary for a party to use documents or information obtained in a proceeding for another purpose.[1]
[1] The principle derives from the decision of the House of Lords in Harman v Secretary of State for the Home Department [1983] 1 AC 280. See also Sentry Corporation v Peat Marwick Mitchell & Ors (1990) 24 FCR 463 at [39]
Although the principle arose in the context of documents produced to a court under compulsion by order that a party give discovery, the High Court determined in Hearne v Street that the Harman obligation applies also to “witness statements served pursuant to a judicial direction and affidavits”.[2]
[2] (2008) 235 CLR 125 at [96]
In Council of the Law Society of the ACT v Legal Practitioner 1,[3] the Tribunal said “that the Harman obligation also applies to documents filed in the tribunal”. I agree.
[3] [2016] ACAT 76 at [12]
The rationale underpinning the Harman obligation is that compulsion to produce documents or information which a person would not otherwise have produced is an invasion of the person’s right to keep information private. If a person is required to produce documents or information, it should only be so far as justice requires, namely determination of the issues arising in the proceeding in which the documents and/or information were compulsorily produced. If they are to be used for some other purpose, leave to do so must first be obtained.
The Registrar submitted that the Statements were not filed and served under compulsion. Whilst the Tribunal’s order required him to file and serve “any” witness statements or other documents upon which he intended to rely, he was not compelled to file a statement. Whether to file and serve a statement or statements and their content was, he said, “entirely voluntary”.
There is authority for the proposition that the Harman obligation does not apply to witness statements or information provided voluntarily in a case to be argued in open hearing.[4] However, Courts have expressed different viewpoints.[5]
[4] Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138 at [142], [148] and [151]; Rowe v Silverstein [2009] VSC 157 at [25]
[5] Bashour v ANZ Banking Group Ltd [2017] FCA 163 at [159] – [164]
Fortunately, I did not need to decide the point. The Registrar did not submit that he is able to use the Statements without regard to the Harman obligation. Rather, the Registrar applied for leave to use the Statements for the purposes described above (albeit relying on the voluntary disclosure as a circumstances for why leave should be granted) and I therefore proceeded on the basis that leave was required.
The Tribunal has a general discretion under section 56(b) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) to make orders as the Tribunal “considers necessary or convenient”. That power has been used previously to grant a party leave to use documents filed in the Tribunal that are subject to the Harman obligation for other purposes.[6] The question in this case was whether leave ought be granted.
[6] Council of the Law Society of the ACT v Legal Practitioner 1 [2016] ACAT 76 at [10]
In Esso Australia Resources Ltd and Ors v Plowman and Ors, the High Court per Brennan J noted that a party can be released from the Harman obligation in special circumstances. His Honour said:
That dispensing power is not freely exercised, but it will be exercised when special circumstances appear. In the Federal Court, special circumstances have been held to exist where “there is a special feature of the case which affords a reason for modifying or releasing the undertaking and [the feature] is not usually present.”[7]
[7] Esso Australia Resources Ltd and Ors v Plowman and Ors (1995) 183 CLR 10, 37
In Council of the Law Society, the Tribunal commented on the circumstances in which leave may be given to use documents that are subject to the Harman obligation for other purposes:
In Liberty Funding Pty Limited v Phoenix Capital Limited [2005] FCAFC 3; (2005) 218 ALR 283 (Liberty Funding) it was decided that a court may grant leave to use documents subject to the Harman obligation if special circumstances justify release from the requirement of confidentiality. In a joint decision, Branson, Sundberg and Allsop JJ stated at [31]:
The notion of ‘special circumstances’ does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one...
The decision noted a list of factors developed by the courts to be taken into account in deciding to allow use, including the attitude of the author of the document and the prejudice the author may sustain; whether the document pre-existed litigation or was created for that purpose and therefore was expected to enter the public domain; the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information); and, most importantly of all, the likely contribution of the document to achieving justice in the other proceeding. [8]
[8] [2016] ACAT 76 at [13]
In Ashby v Slipper (No 2), the Federal Court per Flick J said:
The need for “special circumstances” recognises the balance between reasons for imposing the constraint on material secured for use in proceedings and the reasons why a party may seek to free itself from that constraint. .... Reasons for initially imposing the constraint include a recognition that the Court’s compulsory processes of obtaining information may have been employed to secure that information .... Reasons for relaxing the constraint ... involve the wider public interest, including the public interest in the administration of justice and the administration of the law more generally. In the present case, these considerations include the enforcement or administration of the criminal law.[9]
[9] Ashby v Slipper (No 2) [2016] FCA 550 at [10]
Mr Buckland referred me to the decision of Newnes J of the Supreme Court of Western Australia in North East Equity Pty Ltd v Goldenwest Equities Pty Ltd where his Honour said:
42 The courts have recognised that there can be a public interest in favour of disclosure in respect of information that is relevant to the investigation and prosecution of a criminal offence, which can override the public interest in the administration of justice in the preservation of the confidentiality of discovered documents ... Where a conflict arises, the court must weigh up the competing public interests .... It is therefore necessary that the court examine all of the relevant circumstances in deciding where the public interest truly lies.
43 In Bailey,[10] Lee J identified some of the factors relevant to the exercise of the court's discretion on an application such as the present, namely:·the nature of the offence alleged;
·the cogency of the evidence sought to be adduced in support of it;
·the authority to which the documents are sought to be disclosed;
·the manner of the authority's intended use and the possibility of misuse by that authority;
·any prejudice, actual or potential, which may be occasioned to the respondent by the disclosure.
44 As Lee J expressly recognised, those factors are not exhaustive. I would add a further factor, namely, whether the application has been brought for some personal advantage or improper purpose rather than to advance the public interest.[11]
[10] Bailey v Australian Broadcasting Corporation [1995] 1 Qd R 476
[11] North East Equity Pty Ltd v Goldenwest Equities Pty Ltd [2008] WASC 190 at [42] – [44]
In Re Springfield Nominees Pty Ltd v BridgelandsSecurities Ltd,[12] referred to in many subsequent cases, Wilcox J said that perhaps the most important circumstance is the likely contribution of the document to achieving justice if used for the proposed other purpose.
[12] Re Springfield Nominees Pty Ltd v BridgelandsSecurities Ltd (1992) 38 SCR 217 at 225
Mr G Kazolis filed and served the Statements for the purpose of relying upon them at the hearing of his substantive application. In substance, the Registrar sought leave to use them for three other purposes:
(a)as evidence in criminal proceedings against the applicant and his son;
(b)to investigate whether offences have occurred against the Firearms Act and/or the Criminal Code 2002; and
(c)as evidence in support of his decision made on 27 April 2016 to cancel Mr C Kazolis’ firearms licence nunc pro tunc.
I deal with each purpose in turn.
Use in criminal proceedings
Dr Jarvis submitted that after weighing up the competing interests, the balance lies in favour of releasing the Registrar from his Harman obligation in order for the Statements to be used in the above-mentioned criminal proceedings. He submitted that it is in the interests of the administration of justice and the greater public interest that the Registrar be able to use material for the proper regulation of and enforcement of the licensing regime under the Firearms Act, which is designed to protect public safety by the imposition of strict controls on the possession, use and storage of firearms.
Dr Jarvis accepted that a factor against the grant of leave would arise if the Statements had been produced to the Tribunal and the Registrar under compulsion. He submitted, however, that that factor did not arise because the Statements were newly created and their content was “entirely voluntary”.
He further submitted that the applicant and his son “had good reason to be careful not to make any admissions” and that the Statements were created “when the applicant must have been aware that several contraventions of the [Firearms] Act were alleged against him.”
In reply, Mr Buckland disputed that the applicant “must have been aware” at the time he filed the Statements that the Registrar was contemplating charges. He submitted that the applicant was not put on notice of that intention until immediately prior to a Tribunal directions hearing on 19 April 2016, after the Statements had been filed. Only when he became aware of that intention did he seek an adjournment of the Tribunal proceeding to prevent self-incrimination.
In my view, the Registrar overstates the position by submitting that the filing of the Statements was “entirely voluntary”. The applicant needs evidence to prosecute his application for review of the decision to cancel his firearms licence. The Tribunal does not ordinarily permit evidence to be led by surprise, and in this case it ordered (meaning compelled) the applicant to file witness statements setting out the evidence to be relied upon by those witnesses at the hearing. In a strict sense the Statements were filed voluntarily, but the applicant’s ability to present his case would have been hampered, perhaps significantly, had he not filed the evidence on which he wishes to rely.
In King v AG Australia Holdings Ltd the Federal Court per Moore J said:
I see no material difference in principle between a requirement in the rules of a court to create, file and serve a document and a court order applying a practice direction requiring witness statements to be served: see also Akins v Abigroup Ltd (1998) 43 NSWLR 539 especially at 550-552. They both compel a party to create and serve a document or documents if the party wishes to conduct proceedings in a particular way. In one instance it is to secure an order, in the other it is to call a witness. Both acts are voluntary in the sense that the failure to perform them would not result in a sanction or penalty (unlike discovery and interrogatories) other than, potentially, the inability to seek an order or to call the witness. However each is a step viewed by a party as a necessary one and taken to prosecute litigation in accordance with rules determined by a Court which require specified steps to be taken.[13]
[13] King v AG Australia Holdings Ltd (2002) 121 FCR 480 at [75]
In my view, the applicant’s filing of the Statements was not entirely voluntary. He was under an order to do so. His dilemma, faced by many litigants, was in deciding whether to provide information to assist his case in this proceeding where it risked adverse consequences if leave were given for its use in other ways. In that regard, I concluded that two factors discounted the public interest in the applicant being able to rely on the Statements in this proceeding whilst remaining protected from their use for other purposes.
First, the Registrar seeks leave to provide the Statements to the AFP and the Director of Public Prosecutions (the DPP) for their use in criminal proceedings SCC 45 and 46 of 2017. Enforcement of the criminal law is well recognised as a special circumstance that often but not always warrants the grant of leave.[14]
[14] See for example, Ashby v Slipper; North East Equity.
Of course, the admissibility of the Statements or any of them in the criminal proceedings will be for the Court to decide. I should not comment on that, especially where Mr Buckland stated that their tender would be “strenuously opposed”. My concern was only with whether the Registrar should be relieved of the Harman obligation to allow that argument in the Court to occur. I concluded that he should.
Second, I was persuaded that the applicant must have been aware that contraventions of the Firearms Act were alleged against him. It is difficult to see how it could be otherwise. By letter dated 18 November 2015 the Registrar wrote to the applicant stating his belief that the applicant had committed a (criminal) offence under section 256 of the Firearms Act which carries a penalty of imprisonment. The Registrar’s letter informed the applicant of his mandatory decision, therefore, to cancel the applicant’s firearms licence. The letter also put the applicant on notice of the Registrar’s statutory obligation to cancel registration of the applicant’s firearms as a consequence of cancelling his licence, and then put the applicant on notice that he would be committing an offence if he possessed or used a firearm that is not registered.
Mr Buckland recast the Registrar’s submission by stating that the applicant and his son were not aware at the time they made their Statements that criminal charges were being contemplated. The submission seems to acknowledge an awareness of the Registrar’s belief that the applicant had committed an offence, and had cancelled his firearms licence for that reason, but not an awareness that prosecution for committing the alleged offences was in contemplation.
I find that difficult to accept. Even if there was not actual awareness that prosecution was in contemplation, it is difficult to envisage the applicant not realising at least the possibility that the Registrar would proceed to prosecute the applicant, having stated in his letter to the applicant that he was satisfied that the applicant had committed the alleged offence.
Mr Buckland submitted that the Registrar was in a “difficult position” regarding a grant of leave for the Statements to be used in relation to the laid charges or investigation of offences under the Firearms Act because, he said, either the Statements have already been used for these purposes or the Registrar “already has sufficient evidence to prove [his] case, and does not need the statements.”
Mr Buckland submitted that “this is the lens through which the respondent’s application should be viewed – either he has already breached the undertaking and should not now be excused from that breach retrospectively, or the statements are simply unnecessary to the prosecutions already on foot.” He submitted that either way leave ought be refused.
The submission, in my view, was misconceived. I reject the proposition that the Registrar (or the AFP or DPP) has already used the Statements in the criminal proceedings. The trial is yet to occur. Nor do I have any basis to draw any conclusion about the extent to which the DPP relied on the Statements to formulate the charges. All that can be said is that the Registrar (via the DPP) intends to rely on the Statements at trial, hence his application for relief from the Harman obligation in order to do so.
Referring to the second limb of the submission, the proposition that leave should be refused because the Registrar “already has sufficient evidence to prove [his] case, and [so] does not need the statements” was also misconceived. At hearing, the submission collapsed when Mr Buckland clarified that he did not mean what he wrote. Rather, the submission was that I should infer this to be the Registrar’s belief. Mr Buckland confirmed that the applicant did not share this belief. He stated that the charges would be defended and that the tender of the Statements would be opposed. That being so, it is not for this Tribunal even to express a view, much less decide, what the Registrar may “need” at trial.
Mr Buckland also submitted that where the Registrar will seek to rely on the Statements at trial, the applicant and his son “will, in all likelihood, be obliged to give evidence in the forthcoming criminal proceedings” to meet the evidence in their Statements. This, Mr Buckland said, will “have induced a de facto abrogation” of their right “not to be compelled to testify against themselves” contrary to the Human Rights Act 2004, section 22(2)(i).
I rejected the submission. Whether the Statements will be admitted into evidence at trial will be for the Court to decide. It would be quite wrong for this Tribunal even to express a view about that, much less to proceed on the assumption that they will be, especially where Mr Buckland stated that their tender would be opposed.
In my view, the submission also misconstrues section 22(2)(i) of the Human Rights Act. If the Statements or any of them are admitted, neither the applicant nor his son will be “compelled” to give evidence in response to what is in the Statements. It will be a matter for them to decide, in the same way that any defendant chooses to give evidence in response to the evidence for the prosecution which may or may not include a prior statement of the defendant.
In any event, section 22(2)(i) entitles a person to a guarantee that he or she will not be compelled to testify “against” himself or herself. There is no suggestion that anyone will compel the applicant to give evidence at all, much less to testify against himself. Indeed, Mr Buckland’s submission contemplates the prospect of the applicant recognising his need to give evidence favourable to his position.
Mr Buckland submitted that having regard to the factors noted in North East Equity, the public interest “weighs against the release of the statements”.
Regarding the nature of the alleged offences, Mr Buckland submitted that they are “regulatory in nature, and are not attended by violence or dishonesty”. I am not persuaded that this feature in this case, if it be accepted, counts against the grant of leave. When speaking about the nature of the offence in Bailey, noted in North East Equity, Lee J said:
There is a clear distinction to be made between offences which essentially involve the infringement of private or individual rights and offences which it may be in the greater public interest to uncover.
There is, in my view, a greater public interest in the prosecution of offences against the Firearms Act, which involve much more than the infringement of private or individual rights.
Lee J also acknowledged in Bailey that the public interest may be against the grant of leave where the infringement is of “a trivial or inconsequential nature”.[15] The alleged offences are not trivial or inconsequential.
[15] Bailey v Australian Broadcasting Corporation (1995) 1 Qd 476 at 486
Mr Buckland also submitted that the Statements are not “detailed or specific” and thus are not probative to any real degree. He submitted that their likely prejudice would outweigh their probative value to a large degree. It would not be appropriate for me to state the content of the Statements, but I reject the proposition that they are not “detailed or specific”. Whether their tender at trial should be rejected on the grounds that their prejudicial effect outweighs their value is for the Court to decide, but I was not persuaded that Mr Buckland’s submission is so plainly correct that I should reject the Registrar’s application for leave.
Whilst not submitted to the contrary, I noted also that there could be no suggestion that the Registrar seeks to use the documents for an improper purpose or that the Registrar or the AFP or the DPP are not appropriate authorities to receive the Statements.
Investigation of possible offences
Dr Jarvis and Mr Buckland bracketed their submissions regarding use of the Statements in the forthcoming criminal proceedings as applicable also to investigation of other offences against the Firearms Act. I agree with that approach where the relevant factors or circumstances regarding the grant of leave are materially the same.
The only material difference is that the Registrar seeks leave to use the Statements to investigate possible other offences, rather than as evidence in the prosecution of charges already laid. However, in my view, that is not a factor which sways the balance one way or the other regarding the grant of leave. The relevant issue remains the same: whether leave should be granted because there is a greater public interest in enforcing the licensing regime under the Firearms Act for the purpose of protecting the public. I concluded that leave should be given for this purpose.
Retrospective use - cancellation of licence
The Registrar also sought leave to use the statement of Mr C Kazolis dated 14 April 2016 nunc pro tunc in support of his Decision, per paragraph 5(b) above.
It is plain from the Registrar’s letter dated 27 April 2016 that the Registrar relied primarily if not entirely on Mr C Kazolis’ statement for the purpose of making the Decision. The Registrar accepted, as he had to, that he breached the Harman obligation by using the statement for that purpose without first obtaining leave from the Tribunal to do so. Dr Jarvis described it as a “technical breach”, but contended it was not more than that.
The question was whether leave should be granted in that circumstance.
Dr Jarvis relied on the decision of Pullin J of the Supreme Court of Western Australia in Commonwealth v Temwood Pty Ltd and Ors[16] where his Honour was dealing with the Commonwealth’s use of a mixture of documents, some of which may have been the subject of the Harman obligation (and so used in breach of that obligation) and some which were not. The difference appeared to turn upon which documents had been obtained by the Court’s compulsory processes, and which had not. Whilst the Commonwealth sought a general release from the Harman obligation to the extent it may have applied, Pullin J was not willing to take such a general approach. In his view, “the first step… is to establish exactly what documents are under consideration”. However, on the question of principle, Pullin J said:
I agree with Lee J in Bailey ... that all of the circumstances must be looked at in order to determine the nature and extent of the public interest which would support the grant of leave”.[17]
[16] Commonwealth v Temwood Pty Ltd and Ors [2001] WASC 282
[17] Commonwealth v Temwood Pty Ltd and Ors [2001] WASC 282 at [48]
One of those circumstances, at least in relation to those documents that were the subject of the Harman obligation, was that the Commonwealth was seeking leave where it was already in breach. For that reason, Pullin J determined that the first step must be to identify the documents to which that circumstance applied.
Mr Buckland referred me to the decision of Davies J of the Supreme Court of Victoria in Laen Pty Ltd v At the Heads Pty Ltd and Ors[18] where his Honour said:
15. In Forty Two International Pty Limited v Barnes Yates J considered the Court’s power to grant leave nunc pro tunc where there has been a breach of the implied undertaking. Yates J held that the Court could grant leave retrospectively. His Honour reasoned as follows:
The consequences of such a breach may include the exercise of a discretion by the court to strike out the proceeding or permanently stay it as an abuse of process: Riddick; K & S Corporation Ltd in [50]; Grocon Ltd v Alucraft Pty Ltd (in liq) (1992) 10 ACLC 1127 at 1128-1129. In my view the court also has the power to grant leave retrospectively: Miller v Scorey [1996] 1 WLR 1122 at 1133-1134; Eckert v National Australia Bank Ltd (unreported, Supreme Court of South Australia, Doyle CJ, 17 April 1997). The question is whether, as a matter of discretion, such leave should be granted. As Rimer J in Miller observed (at 1133):
... It is one thing to release a party from an undertaking to the court so as to permit him to do in the future that which he has been prevented from doing in the past. It is another thing for the court to find, as I have, that a party has abused the process of the court by his breaches of an undertaking to it and for it then to give that party a retrospective release from the undertaking so as to wipe away the abuse of the process which he has committed.
In my view it is a matter of significant concern that a breach of the obligation has taken place. It is not to be excused lightly. However, the matter must be viewed in a wider context.
Had the applicants sought the requisite leave at the time of production in October and November 2008 then, in my view, it is likely that such leave would have been granted. .... the respondents raise no issue of prejudice concerning the use of the documents and information in this proceeding. They rely purely on the fact that the applicants have acted in breach of their obligations to the court. As there is no issue of prejudice now, it is difficult to see how there could have been an issue of prejudice to the respondents in November 2008.
[18] Laen Pty Ltd v At the Heads Pty Ltd and Ors [2011] VSC 315 at [15]
Mr Buckland referred me also to the decision of Macnamara J of the County Court of Victoria in Australian Vocational Driving Institute Pty Ltd v State of Victoria and Anor where his Honour said, referring to Laen, that “Davies J concluded that there was power to grant a release nunc pro tunc and that the primary consideration was whether the application would have succeeded if made in advance.”[19] Mr Buckland submitted that whether to grant leave is “not as simple” as that, and that other considerations arise.
[19] Australian Vocational Driving Institute Pty Ltd v State of Victoria and Anor [2014] VCC 480 at [90]
Mr Buckland referred to the lack of explanation for the Registrar’s oversight, although stating he was not suggesting the Registrar overlooked his Harman obligation deliberately. Mr Buckland submitted that the Registrar nevertheless “should have known better”, he being an officer of the AFP. He submitted that the manner in which the statement was obtained, namely as a witness statement in this proceeding, also counted against its use for the purpose of making the Decision.
In my view, Mr Buckland wrongly characterises Macnamara J’s observation. His Honour never suggested it was as “simple” as looking at whether the application would have succeeded if made in advance. Rather, he said it is the primary consideration among others. In my view, Macnamara J fairly states the ratio of Davies J’s decision in Laen. This approach also recognises that all other factors are relevant when determining whether leave should be granted.
In any event, their Honours in Laen and Australian Vocational Driving confirmed the general proposition established by Wilcox J in Re Springfield Nominees[20] that the most important consideration when deciding whether leave should be granted is the likely contribution of the document in achieving justice. That is a discretionary question which turns on the paricular circumstances of each case. That the Registrar breached his Harman obligation when using the witness statement to make the Decision is one of the circumstances to be considered.
[20] Re Springfield Nominees Pty Ltd v BridgelandsSecurities Ltd (1992) 38 SCR 217
Another is the circumstance that the breach was (I am prepared to conclude) inadvertent, noting that Mr Buckland made clear he does not suggest otherwise.
After considering these circumstances and those noted by Mr Buckland per paragraph 59 above, in addition to the circumstance that the statement is relevant to enforcement of the Firearms Act and protection of the public, I concluded that leave should be granted because the document is likely to make a contribution to achieving justice.
The statement plainly contains important evidence in support of the Decision. Indeed, having regard to the Registrar’s statutory obligations regarding cancellation of a firearms licence, it is difficult to see how the Registrar could have chosen not to act after receiving the information in the statement. His only error was not first to obtain leave from the Tribunal to use the statement for the purpose of making his Decision, assuming leave was required. Given the significance of the statement, it is also difficult to see why leave would have been refused had it been sought prior to the Registrar making his Decision. Mr Buckland did not suggest otherwise.
There can also be no suggestion, nor could there have been, that the Registrar obtained the statement by any unfair means. There was also no suggestion of possible misuse of the statement, nor could there have been, where it was used for making the Decision and where the Decision is now the subject of review by this Tribunal.[21]
[21] Tribunal proceeding AT 27 of 2016
Regarding prejudice to Mr C Kazolis, there is of course the obvious fact that the Registrar relied upon the statement to cancel Mr Kazolis’ firearms licence but that is not the kind of prejudice contemplated by Newnes J in North East Equity. His Honour said:
It was also not suggested (and, in my view, nor could it have been) that the prospect that the provision of these documents to the police might lead to the prosecution of one or more of the defendants is prejudice of a kind which is to be taken into account in weighing the competing public interests.[22]
[22] North East Equity Pty Ltd v Goldenwest Equities Pty Ltd [2008] WASC 190 at [48]
Lastly, Mr Buckland took me to no authority where leave was refused where, or because, the Harman obligation had already been breached. In the two cases he relied on, leave nunc pro tunc was granted. In Laen, the Court concluded that leave would have been granted had it been sought at the requisite time, and in Australian Vocational Driving the breach was inadvertent. Both situations apply in this case.
Conclusion
For these reasons, I made orders on 10 April 2017.
………………………………..
Presidential Member G McCarthy
HEARING DETAILS
FILE NUMBER: | AT 92/2015 |
PARTIES, APPLICANT: | George Kazolis |
PARTIES, RESPONDENT: | ACT Registrar of Firearms |
COUNSEL APPEARING, APPLICANT | Mr B Buckland |
COUNSEL APPEARING, RESPONDENT | Dr D Jarvis |
SOLICITORS FOR APPLICANT | Hartmann and Associates |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBER: | Presidential Member G McCarthy |
DATE OF HEARING: | 7 March 2017 |
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