Kazolis v Registrar of Firearms
[2018] ACTSC 89
•10 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kazolis v Registrar of Firearms |
Citation: | [2018] ACTSC 89 |
Hearing Date: | 6 February 2018 |
DecisionDate: | 10 April 2018 |
Before: | McWilliam AsJ |
Decision: | See [88] |
Catchwords: | JUDICIAL REVIEW – decision to cancel firearms licence –– whether a father knowingly borrowed his son’s licence in contravention of the Firearms Act 1996 (ACT) – whether denial of procedural fairness WORDS AND PHRASES – ‘borrowed’ |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 8, 26, 83 Crimes Act 1914 (Cth) s 23C, pt 1C Court Procedures Rules 2006 (ACT) r 3557 |
Cases Cited: | Attorney-General (NSW) v Quin (1990) 170 CLR 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 |
Texts Cited: | C T Onions (ed), The Shorter Oxford English Dictionary on Historical Principles (Oxford Clarendon Press, 3rd ed, 1973) S Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers, 5th ed, 2009) |
Parties: | Mr George Kazolis (Plaintiff) Registrar of Firearms (Defendant) |
Representation: | Counsel Mr J Masters with Mr WDB Buckland (Plaintiff) Mr K Archer (Defendant) |
| Solicitors Hartmann & Associates (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 328 of 2017 |
These proceedings seek judicial review of a decision made on 18 November 2015 pursuant to s 81(1)(b)(ii) of the Firearms Act 1996 (ACT) (Act) by a delegate of the Registrar of Firearms (Delegate), whereby a firearms licence held by the plaintiff was cancelled (the Cancellation Decision).
The evidence discloses that the plaintiff had attended the ACT Firearms Registry on 18 November 2015, with a firearms licence (number N0013133) belonging to his son, Constantine Kazolis, for the purpose of collecting a firearms permit (described as a permit to acquire or a PTA) in the son’s name, and on his son’s behalf.
The Delegate formed the view that the possession of his son’s firearms licence was an offence under s 256(c) of the Act (set out below), in that the plaintiff knowingly had possession of a borrowed licence. Consequent on the view that the plaintiff had contravened the Act, the Delegate cancelled the plaintiff’s own firearms licence (being licence number N0001108C).
Reasons of the Delegate
The reasons of the Delegate are brief and it is convenient to set them out as follows:
I refer to the conversation we just had on Wednesday 18 November 2015. I note that you came into the ACT Firearms Registry on the same day with the firearm licence belonging to Constantine Kazolis, firearm licence number N0013133. It is an offence under the [Act] pursuant to section 256(c), to knowingly have possession of a borrowed licence.
Further, pursuant to section 81(1)(b)(ii) of the [Act], the registrar must cancel an adult firearm licence if satisfied on reasonable grounds that the licensee has contravened the [Act], whether or not the licensee has been convicted of an offence for the contravention.
DECISION
Requirement of Registrar to mandatorily cancel licences.
As outlined above, I must now cancel your firearms licences.
The letter then informs the plaintiff of the consequent cancellations of the registration of any firearms held by him and notifies the plaintiff of his right of review pursuant to s 260A of the Act, the details of which it is unnecessary to set out here.
The application before the Court
The plaintiff seeks relief through the supervisory jurisdiction of the Court, in the form of a declaration that the Cancellation Decision was unlawful, an order in the nature of certiorari quashing the Cancellation Decision and an order for the costs of the proceedings to be paid by the defendant.
The grounds of the application ultimately pressed may be summarised as follows:
(a)The defendant did not have reasonable grounds under s 81(1)(b)(ii) of the Act to suspect that the plaintiff had contravened a provision of the Act because:
(i)The Delegate incorrectly concluded the plaintiff had borrowed his son’s firearms licence when, in fact, he was acting as his son’s duly authorised agent; and/or
(ii)The Delegate formed the suspicion based upon a course of conduct which had been induced, procured and/or encouraged by members of the defendant’s staff (Ground 1).
(b)The defendant did not accord the plaintiff procedural fairness before cancelling his firearms licence (Ground 2).
A preliminary issue – the requirement to extend time
The Cancellation Decision was made on 18 November 2015. The Originating Application commencing proceedings in this Court was filed on 21 August 2017.
Rule 3557(2) of the Court Procedures Rules 2006 (ACT) (Rules) provides that an application for prerogative relief must be filed no later than 60 days after ‘the day when the grounds for the grant of relief sought first arose’. The plaintiff therefore requires an extension of time in which to bring these proceedings, and such an order was sought in the Amended Originating Application filed 28 September 2017.
Rule 3557(4) of the Rules provides that the Court may extend the time in which an application may be filed in ‘special circumstances’.
The applicable principle guiding the exercise of the Court’s discretion was discussed in Cressy v Miloriad (No 2) [2016] ACTSC 339; 317 FLR 267 by Mossop AsJ (as his Honour then was) at [49]:
A similar phrase, ‘special reasons’ has been interpreted in Jess v Scott (1986) 12 FCR 187 at 195 as involving “an elastic test, suitable for application across a range of situations ...”. The Court went on to say that “[i]t is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule ...”.: Jess at 195; see also Eastman v Director of Public Prosecutions (No 3) [2014] ACTSCFC 3 at [4]. As to “special circumstances”, Burchett J said in Minister for Community Services and Health v Chee Keong Thoo [1988] FCA 54; (1988) 78 ALR 307 at 323:
Examination of the numerous instances of the use of the expression "special circumstances", in acts and regulations, contained in the fourth edition of Stroud's Judicial Dictionary suggests that, though occasionally used in a neutral sense (eg to express grounds for a change of venue), it is almost invariably used to express grounds of excuse, leniency, allowance or relaxation of some requirement.
This passage was referred to with approval by Higgins J inRe Kavanagh (1995) 125 FLR 138 at 145. Therefore, in my view, the plaintiff must establish that the circumstances were sufficiently out of the ordinary to warrant a departure from the default rule.
The explanation for the delay in commencing proceedings came through the affidavit of Mr Glenn Desmond Kable, solicitor for the plaintiff. Essentially, the plaintiff’s explanation is that he had been pursuing review proceedings as permissible under s 260A of the Act in the ACT Civil and Administrative Tribunal (Tribunal). He commenced those proceedings on 3 December 2015. The proceedings would have permitted the question of the proper construction of s 81(1)(b)(ii) of the Act to be considered as part of the underlying merit of the decision.
However, on 19 April 2016, at the hearing of the application, the defendant warned the plaintiff that any evidence presented in the Tribunal proceedings could be used in anticipated future criminal proceedings.
The parties (and the Tribunal member hearing the case) took the view that an adjournment was necessary because the Tribunal lacked the power to issue a certificate concerning the privilege from self-incrimination, such as an ACT court has power to issue under s 128 of the Evidence Act 2011 (ACT) (Evidence Act).
I interpolate that the issue arose because ‘ACT court’ is defined in the Dictionary to the Evidence Act as meaning ‘the Supreme Court or Magistrates Court, and includes an entity that, in exercising a function under a territory law, is required to apply the laws of evidence.’ Under s 8 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act), the Tribunal need not comply with the rules of evidence applying in the ACT. Further, under s 26 of the ACAT Act, the Tribunal may inform itself in any way it considers appropriate in the circumstances.
It does not appear (from a review of the transcript of the Tribunal proceedings in evidence) that consideration was given by the parties at that time to s 83 of the ACAT Act, which provides that if the parties to an application jointly apply to have the matter removed to the Supreme Court, the Tribunal must order that the matter be removed to the Supreme Court. That may have been the most appropriate course given the evidentiary difficulties faced by the plaintiff in not being able to avail himself of a certificate and the statutory construction issues that are now before the Court by way of the grounds of review.
Returning to the procedural history, it then took until November 2016 for criminal charges to be laid against the plaintiff, one of which (relevantly to the judicial review application), was the charge that the plaintiff knowingly had possession of a borrowed licence, in contravention of s 256(c) of the Act.
On 28 February 2017, the plaintiff was committed to this Court to stand trial and the criminal proceedings are listed for hearing on 30 April 2018. The delay between March and August 2017 (when these judicial review proceedings were commenced) can be seen as attributable to the procedural ping pong that the parties were engaged in, moving between the Tribunal and this Court in respect of evidence supporting the criminal charges, including an interlocutory application brought by the defendant seeking to use material filed in the Tribunal in this Court: see Kazolis v ACT Registrar of Firearms [2017] ACAT 48, delivered on 3 July 2017.
The above recitation of the procedural history establishes that the cause of the delay in commencing proceedings in this Court was not through the plaintiff’s inertia or neglect. The plaintiff has sought to challenge the Cancellation Decision since it was made, but the issues arising on administrative and judicial review were intermingled with criminal consequences and the resolution by means of commencing the more limited judicial review proceedings in this Court was not straightforward. Part of the delay is attributable to the time it took for the defendant to lay charges against the plaintiff and in the interlocutory application made to the Tribunal to use documents filed in the Tribunal in the criminal proceedings. I am satisfied that the circumstances of this case are sufficiently out of the ordinary to warrant a departure from the requirement to commence proceedings within 60 days of the decision being given.
Accordingly, it is appropriate to extend the time in which the plaintiff may commence judicial review proceedings to 28 August 2017, when the Originating Application was filed.
Relevant provisions of the Act
Section 5 of the Act sets out the principles and objects of the Act. The material parts of s 5(1) of the Act are:
Principles and objects of Act
(1) The underlying principles of this Act are –
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety; and
(b) to improve public safety –
(i) by imposing strict controls on the possession and use of firearms; and
(ii) by promoting the safe and responsible storage and use of firearms; and
(c) to facilitate a national approach to the control of firearms.
One of the objects of the Act provided in s 5(2) of the Act is to provide strict requirements that must be satisfied in relation to the licensing of firearms and the acquisition and sales of firearms: s 5(2)(d).
Relevant to the consideration of Ground 2 below, and the issue of procedural fairness, s 79 of the Act provides:
Adult firearms licences—immediate suspension
(1) This section applies if the registrar—
(a)is considering whether a ground for cancellation of a licence exists under—
(i) section 81 (Adult firearms licences—cancellation generally); or
(ii) section 82 (Adult firearms licences—cancellation of category H licences); and
(b) believes on reasonable grounds that it is in the public interest to suspend the licence until the registrar decides whether to cancel the licence on the ground.
Note 1 The Minister may make guidelines about the making of a decision whether it is in the public interest to suspend a licence (see s 37).
Note 2 If the registrar suspends a licence under this section, the registrar must give written notice of the decision to the licensee (see s 260).
(2) The registrar's notice of the suspension must—
(a)include a statement about the effect of subsections (3) and (4); and
(b) state that the licensee may, before the end of a stated period, give the registrar written reasons why the licence should remain in force.
Note See s 83 (Adult firearms licences—when suspension or cancellation takes effect).
(3)The suspension ends when the earliest of the following happens:
(a) the registrar gives the licensee a written notice revoking the suspension;
(b) if the licence is cancelled under this Act or another territory law, or suspended (the later suspension ) under another provision of this Act or another territory law—the cancellation or later suspension takes effect;
(c)12 weeks have elapsed after the day the suspension takes effect.
(4) The licensee is not authorised to possess or use any firearm (not only firearms held under the licence) during the suspension.
Section 80 of the Act concerns mandatory suspension for family violence offences and is not material to the facts of this case.
Section 81 of the Act then provides (relevantly) as follows:
Adult firearms licences—cancellation generally
(1) The registrar must cancel an adult firearms licence—
(a) …
(b) if satisfied on reasonable grounds that the licensee—
(i) gave information that was (to the licensee's knowledge) false or misleading in a material particular in relation to the application for the licence; or
(ii) has contravened this Act, whether or not the licensee has been convicted of an offence for the contravention; or
...
Section 256 of the Act, being the contravention in question here, provides:
Misuse of licences and permits
A person must not—
(a) falsely represent himself or herself to be the holder of a licence or permit (whether or not it is in force); or
(b) give possession of a licence or permit to another person for the purpose of using it unlawfully; or
(c) knowingly have possession of a borrowed or stolen licence or permit.
Maximum penalty: 100 penalty units, imprisonment for 1 year or both.
Nature of the Court’s power on judicial review
The decision under challenge is the Delegate’s satisfaction under s 81, on reasonable grounds, that the plaintiff had contravened the Act.
During the hearing, both parties sought to rely on evidence or make submissions that went outside the confines of the application for judicial review. The parties were at odds as to the motive of the plaintiff in attending upon the ACT Firearms Registry. The plaintiff said that he attended the Registry merely as an agent of his son to lodge a form and pick up a permit on his son’s behalf. He had letters of authorisation from his son, dated 18 October 2015 and 17 November 2015, giving permission to the plaintiff to collect and submit gun permits and gun acquisitions on his behalf.
The defendant argued that the plaintiff was using the son’s licence dishonestly to obtain firearms for himself, as a means of circumventing the limitation on the number of permits for firearms that had previously been placed upon him.
However, when the Court’s supervisory jurisdiction is invoked, as it is here, the Court does not look to the factual merit of the issue underlying the decision being reviewed. All the Court has power to determine is whether the decision-maker acted lawfully, and if he or she did not, to exercise discretion to grant relief (discussed in more detail below).
This limit on the Court’s power is encapsulated in the oft-cited statement of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
Putting this limit on the Court’s power into the context of the present case, the Court is not reviewing whether the contravention under s 256(c) of the Act actually occurred. The Court’s focus is not on the plaintiff’s conduct or motive; it is on the Delegate’s conduct. The Court reviews the decision of the Delegate and the decision-making process that led to it, including the procedure adopted by the Delegate and the reasons given for the conclusion reached. What matters on a review of the Delegate’s satisfaction is what the Delegate thought, as disclosed by the reasons he gave.
The parties agreed that if the Delegate’s satisfaction was based on an erroneous construction of the law, the Delegate would not have had reasonable grounds under s 81 of the Act. It is thus necessary to consider whether the Delegate construed the meaning of the word ‘borrow’ in s 256(c) of the Act correctly.
The meaning of ‘borrowed’
The Macquarie Dictionary, Fifth Edition, includes the following meaning in its definition of ‘borrow’:
To take or obtain (a thing) on the promise to return it or its equivalent; obtain the temporary use of.
The Shorter Oxford English Dictionary on Historical Principles, Third Edition, includes among its definitions:
a. To take (a thing) on security given for its safe return;
b. To take (a thing) on credit on the understanding of returning it or an equivalent; hence, to obtain the temporary use of.
Obtaining the temporary use of something denotes a benefit. If a person borrows a book, he or she obtains the pleasure or otherwise of reading the book before returning it. If a person borrows money, he or she receives the money to purchase something on the promise of repaying the equivalent sum (and usually at the price of paying interest).
Importantly for the present case, mere possession of a thing owned by someone else does not of itself constitute borrowing. Drawing an analogy closer to the present circumstances, a person who is requested to bring to the office a forgotten wallet from home does not ‘borrow’ the wallet or its contents while it is in that person’s possession. He or she does not have the temporary use of the item, only the temporary possession of it.
The context and purpose of the section supports a construction of the term ‘borrowed’ that is consistent with its ordinary dictionary definition. The section is a criminal offence directed at misuse of documents, being licences and permits. The offence is to knowingly have possession of a borrowed or stolen licence. If borrowed were construed to include mere possession of the licence, the earlier inclusion of the word ‘possession’ as part of the offence would be otiose. Such a construction is contrary to the principle that every word of the section must be given work to do: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
As submitted by the defendant, the Act is expressly directed to improving public safety through the tight regulation (or ‘strict control’, to use the language of s 5(1)(b)(i) of the Act) on the possession and use of firearms. One of the ways this is achieved is by making it an offence for people to have the use of the licences (and permits) obtained by others, even if the holder of the licence gives permission. A construction of s 256(c) of the Act that permits a person to have the document in their possession without gaining the temporary use of it (to either possess or use a firearm) does not impinge upon public safety.
It appears to me to be a matter of common sense that mere knowing possession of the licence must be insufficient to amount to an offence under s 256(c) of the Act. If the position were otherwise, even handing the licence over to the police officer at the Registry of the defendant for the purpose of photocopying the licence could fall within the terms of the section and that result would be absurd.
Ground 1
The Delegate’s brief reasons have been set out above. No evidence was put before the Court to give any content to the conversation that was had between the plaintiff and the Delegate, referred to in the Delegate’s reasons.
The sole reason given by the Delegate in the notification of 18 November 2015 for the Cancellation Decision was the contravention of the Act, and the only section referred to by the Delegate was s 256(c) of the Act.
The only basis given for the Delegate being ‘satisfied’ that the plaintiff had contravened that section of the Act was one sentence:
I note that you came into the ACT Firearms Registry on the same day with the firearm licence belonging to Constantine Kazolis, firearm licence number N0013133.
There was much material before the Court, led through affidavits of other people, none of whom were the Delegate, as to events leading up to the making of the Cancellation Decision, what happened after the Cancellation Decision had been made, and the nature of criminal charges now pending in this Court. The defendant alleges that authorising the plaintiff to collect a firearms permit on his son’s behalf was a device used by the plaintiff to circumvent the firearms limit placed on him.
Whether that is a fact, and the material directed to proving an ulterior or dishonest purpose on the part of the plaintiff, may be put to one side here because it was not the Delegate’s stated reason for making the Cancellation Decision. The Delegate says nothing in his reasons about any letter of authority from the son, or any belief that the plaintiff was attending the Registry of the defendant in his own interest, not as an agent for his son.
The lack of any reference in the reasons is unsurprising because of the view the Delegate took of s 256(c) of the Act. It is clear in the reasons of the Delegate that the Delegate construed s 256(c) of the Act to mean that mere possession of someone else’s licence was sufficient to constitute the offence. It was the simple fact that the plaintiff had attended the Registry with someone else’s licence that was given as the reason for cancelling the plaintiff’s licence.
On the proper construction of the word ‘borrowed’ in the Act as set out above, that was an error of law. The consequence of that error is that the Delegate did not have the requisite ‘reasonable grounds’ for being satisfied that a contravention of the Act had occurred and accordingly, the Cancellation Decision was not lawfully made.
As the plaintiff has succeeded on the first limb of Ground 1, it is unnecessary to consider the second limb about a course of conduct engaged in by other members of the defendant’s staff. In particular, it is unnecessary to address the lawfulness or otherwise of the change in procedures and policies adopted by the defendant, requiring a permit to be collected in person by the person who applied for it.
Ground 2
Given my finding in relation to Ground 1, it is also unnecessary to give consideration to Ground 2. However, as the ground was fully argued and the relationship between the parties is ongoing, it may be of some assistance to the parties to set out brief reasons indicating that I would also have accepted that there had been a denial of procedural fairness in relation to the Cancellation Decision.
There was no issue as to the principle that a consideration of whether procedural fairness was afforded in a particular case must always be moulded to the particular circumstances of that case. It is well established: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [25]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 (Ex parte Lam) at [37] per Gleeson CJ, [48] per McHugh and Gummow JJ; Kioa v West (1985) 159 CLR 550 (Kioa v West) at 585 per Mason J; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553; Mobil Oil Australia Pty Ltd v Commissioner of Taxation (1963) 113 CLR 475 at 503-504; Russell v Duke of Norfolk [1949] 1 All ER 109 at 118.
The issue was whether this particular statutory regime, being the Act, required the Delegate to afford procedural fairness to the plaintiff at all.
Matters such as the content of any such obligation, whether any obligation had been breached and if so, what the consequences of the breach might have been, were understandably only lightly addressed. Given that the Cancellation Decision was made immediately during a conversation upon the plaintiff attending the Registry of the defendant, it is clear that if procedural fairness was required to be afforded to the plaintiff under the Act, the obligation had not been met.
The defendant contended that the provisions of the Act do not indicate that procedural fairness is to be afforded when decisions under s 81 of the Act are being made, submitting first, the objects of the Act are very much focused on community protection and public safety and as I understood the submission, the defendant needs to be able to make urgent decisions in a criminal or investigatory setting, which may result in the modification of natural justice, relying on Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 at 241. The defendant relied on the principles and objects of the Act contained in s 5 of the Act, the material parts of which have been set out above.
As part of that overarching argument, it was submitted the Act clearly differentiates between discretionary and mandatory considerations in the context of granting or taking away licences, drawing attention to ss 18 and 19 of the Act by way of contrast, the terms of which are unnecessary to set out here. It suffices to note that those sections contain discretionary considerations, with s 19 of the Act setting out mandatory considerations for the exercise of the discretion.
The argument for the defendant continued that, given the power under s 81 of the Act is concerned with determinations as to breaches and enforcement of the criminal law, it is difficult to conceive of a process of decision making that would create an opportunity for hearing to be given at the point of the original decision making that:
(a)Would not prejudice an investigation of potential criminal conduct; or
(b)Would not alert those who may have breached the criminal law to the possibility of concealing evidence of those breaches; or
(c)Would not involve a breach of the protections set out in pt 1C of the Crimes Act 1914 (Cth) (Crimes Act); or
(d)Otherwise may cause people to incriminate themselves in respect of criminal offences carrying penalties involving terms of imprisonment.
I have taken the reference to the protection in pt 1C of the Crimes Act to be a reference to a person’s right to remain silent, confirmed in s 23S which falls within pt 1C of that statute.
There are a number of reasons why I would not have accepted these submissions. First, s 81 must be read in the context of the Act and this includes s 79 of the Act, the terms of which are set out above. Section 79(1)(a)(i) expressly applies where the defendant is contemplating a decision to cancel a firearms licence pursuant to s 81 of the Act.
Section 79(2)(b) of the Act creates the obligation to afford the licensee procedural fairness, in that when a notice of suspension has been issued, the defendant must tell the licensee that he or she may, before the end of a stated period, give the defendant written reasons why the licence should remain in force.
There is no sound basis for a construction of the Act where a decision maker must afford a licensee the opportunity to be heard when a decision under s 81 of the Act is being considered, with the ability for the licence to be suspended in the meantime, and yet the same decision maker is also empowered under s 81 of the Act to immediately cancel a licence on the spot with no right at all for the licensee to be heard. Such a construction of s 81 of the Act is at odds with s 79 of the Act.
Second, the construction contended for by the defendant is contrary to the now familiar words in Kioa v West at 584, concerning whether there is a duty to accord procedural fairness:
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.
In Day v Harness Racing New South Wales [2014] NSWCA 423; 88 NSWLR 594 (Day v Harness Racing) Leeming JA (with whom McColl and Macfarlan JJA agreed) noted two updating qualifications to the above principle at [94]. The first is that it is unproductive to consider whether the source of the duty is in the common law or a matter of statutory construction, because statutory construction is part of the common law. The second is that the reference to ‘legitimate expectations’ must be refined in light of Ex parte Lam, as may be seen in the formulation in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [11]:
[I]t could now be taken as settled that when a statute confers power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power.
Here, there is no clear manifestation in the Act of an intention to exclude a common law duty to accord procedural fairness where a decision is made under s 81 of the Act but the licence was not previously suspended. Section 81 of the Act provides that the decision-maker’s ‘satisfaction’ is to be on reasonable grounds. In the absence of any clear indication in the Act to the contrary, arriving at a reasonably based satisfaction includes giving the person who is affected by the decision an opportunity to be heard.
Third, the fact that a decision might need to be made urgently does not mean that the Act impliedly excludes the right to be heard. In Day v Harness Racing Leeming JA considered whether there was a duty to afford procedural fairness prior to a decision to suspend a licence in the context of the Harness Racing Act 2009 (NSW). His Honour stated at [105]:
The duty to accord natural justice may be excluded where urgent action is required. But here it is necessary to distinguish between “powers which, by their very nature, are inconsistent with an obligation to accord an opportunity to be heard” and powers which may on occasion, but not always, need to be exercised urgently: Marine Hull …at 241; Commissioner for Police v Ryan [2007] NSWCA 196; 70 NSWLR 73 at [29]. The power to suspend the appellants’ licences is in the second category. Moreover, even where statute mandates swiftness, … that has been insufficient to exclude the obligation to accord procedural fairness.
The Cancellation Decision under s 81 of the Act also falls into the category of a power which need not always be exercised urgently. This is because the express provision in s 79 of the Act for immediate suspension of a licence accommodates the need for urgent action.
The defendant submitted that s 79 of the Act did not operate here. This was a case where the Delegate did not have to ‘consider’ whether to cancel the licence. He had already reached the requisite state of satisfaction that a contravention of the Act had occurred on the day the Cancellation Decision was made and on that basis, s 81 of the Act required that he ‘must’ act. However, the Delegate’s state of mind must be reached on reasonable grounds, and the present litigation demonstrates precisely why s 81 of the Act ought be construed as requiring procedural fairness to be afforded as part of that process. Had the Delegate given the plaintiff an opportunity to be heard as to why his licence ought not be cancelled here, even if he had a firm view about the matter, the Delegate may well have been persuaded that his opinion about the meaning of the word ‘borrowed’ in s 256(c) of the Act was wrong and the costs of these entire proceedings avoided.
Dealing with the remainder of the submissions, the fact that s 81 is in mandatory, not discretionary, terms is irrelevant, because procedural fairness arises before the mandatory requirement operates. That is, the obligation to cancel the licence only arises once a state of satisfaction has been reached. Procedural fairness provides the opportunity to the licensee to tell the decision-maker why he or she ought not reach the requisite satisfaction.
There is also no substance in the submission that a criminal investigation might be prejudiced or somehow affected if a person was notified that his or her firearms licence was at risk of being cancelled. The Act provides that where a firearms licence is suspended, the licensee must be notified. If that consequence does not prejudice an investigation, then neither does the providing of an opportunity to be heard when a firearms licence is not suspended in the meantime. Moreover, the state of satisfaction that must be reached by the decision maker under s 81 of the Act is that a contravention of the Act has actually occurred. The test is not that the Defendant merely has reasonable grounds for a suspicion and investigations might be ongoing.
As to the submissions concerning the incompatibility between affording procedural fairness to the licensee and the licensee’s right to silence where the decision is whether the licensee has committed a criminal offence, the provision of an opportunity to be head is not a requirement that the licensee respond. The licensee may choose not to be heard, but that is properly a matter for the licensee. The important point is to afford the licensee that choice.
Finally on this ground, the content of the obligation also depends on the circumstances of the individual case: National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 216; Kioa v West at 633; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366-367; Somaghi v Minister for Immigration, Local Government, and Ethnic Affairs (1991) 31 FCR 100 at 119 per Gummow J.
Here, the conduct that was thought to constitute the contravention of the Act had already occurred, in plain view at the Registry of the defendant. The Cancellation Decision was not made in circumstances that might prejudice a criminal investigation. There was no evidence to conceal. Nor were there any particularly urgent circumstances that could not have been accommodated by immediate suspension of the licence of the plaintiff. Accordingly, there were no circumstances that meant it was necessary for the plaintiff in this particular case to be denied an opportunity to at least take advice as to whether to put forward any reason why his licence should remain in place.
Accordingly, Ground 2 would also have succeeded.
The discretion to grant relief
Once jurisdictional error is established then the usual course would be to grant an order in the nature of a writ of certiorari: see Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393 at [269]-[284]; BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd (No 2) [2013] QSC 67 at [8]-[11]. A declaration of invalidity would issue ‘almost as of right’: Solution 6 Holdings Ltd and Others v Industrial Relations Commission of New South Wales and Others [2004] NSWCA 200; 60 NSWLR 558 at [135] per Spigelman CJ.
There was no submission that the error of law here was not jurisdictional. However, the defendant argued that even if the Court found legal error, the Court would decline to exercise its discretion to grant prerogative relief for a number of reasons.
The availability of an alternative satisfactory remedy
First, the defendant relied on the availability of merits review pursuant to s 260A of the Act, which was being pursued by the plaintiff in the Tribunal. The defendant relied on AWB Ltd v Cole and Another (No 2) [2006] FCA 913; 233 ALR 453 (AWB v Cole (No 2)) at [71] and the cases there-cited. To this may be added Meagher v Stephenson (1993) 30 NSWLR 736 at 738-739. The effect of the authorities is that the Court has a discretion to decline to grant a remedy by way of judicial review of an administrative action if an adequate alternative remedy exists.It can be an abuse of process to commence judicial review proceedings as of right where appellate relief is available but only by leave, such as is the case here, with appeals from the Tribunal to this Court: s 86 of the ACAT Act.
Courts have taken a range of considerations into account in deciding whether to exercise the discretion to decline to grant relief in the nature of judicial review. Young J in AWB v Cole (No 2) listed a number of matters at [71], such as whether the alternative form of review will be conclusive of the dispute, whether it is to be undertaken by a specialist tribunal that operates in a technical field, the inability of the court to provide a review on the merits, and whether any hardship or disadvantage will be caused by the applicant being forced to pursue the alternative remedy.
In Kwan v Victoria Legal Aid [2007] VSC 122, Bell J stated at [24]-[25] (citations omitted):
Perhaps the most important example of that kind of case is where the decision complained of is an administrative one and the applicant raises a significant question of law or jurisdiction, one not involving issues of disputed fact and of a kind that can only be finally determined by a court of law. In such a case, it may be appropriate, despite the existence of an adequate alternative remedy, for the question to be determined and, if appropriate, for relief to be granted.
This is not because the alternative review body may lack the jurisdiction to consider legal and jurisdictional questions, for the statutory authority of review tribunals may extend that far, even if the questions go to their own jurisdiction, although their decisions on such matters cannot be final. Rather it is because it might be cheaper, faster and more convenient, and also save the costs of what might be an inevitable appeal, for the court to hear and determine the question.
Here, the alternative remedy is not satisfactory in the particular circumstances of this case. The litigation threatened and now being conducted in this Court, being the criminal proceedings involving charges broader than the single contravention of the Act considered here, means that the giving of the plaintiff’s evidence before the Tribunal is stifled by the inability of the Tribunal to issue a certificate under s 128 of the Evidence Act.
In addition, the true meaning of s 256(c) of the Act was a pure question of construction such as would appropriately be decided in the Supreme Court (c.f. Forster v Jododex Australia Pty Ltd (1971) 127 CLR 421 at 439) and the legal error identified was dispositive of the entire proceedings. I am persuaded that it is cheaper, faster and more convenient to grant relief in this case. It would not be a just exercise of the discretion to refuse to grant relief on the basis that the extant proceedings in the Tribunal ought be continued, only to have the matter referred back to this Court under s 83 of the ACAT Act because of the evidentiary difficulty described, or by way of an appeal to have the same issue determined that has now been fully argued in these proceedings.
In any event, the defendant’s submissions accept that the jurisdictional issue is traditionally more amenable to judicial review and that is the only issue that has been determined in these proceedings. No complex matters of fact have been determined such as would justify the Court insisting on the exhaustion of an alternate merits review remedy: Kwan v Victoria Legal Aid [2007] VSC 122 at [23]-[31].
Futility
The defendant separately submitted that the proceedings are futile. While that would be a ground for refusing to grant relief, I do not accept any of the premises on which the asserted futility was based. To the extent that the argument was that resolution of the proper construction of s 256(c) of the Act was unrelated to the pending criminal proceedings that misconceives futility. The plaintiff’s entitlement to a licence is a matter entirely separate from whether any contraventions of the Act have occurred.
To the extent that the defendant (in written submissions) relied on an ‘observation’ that the plaintiff was charged with a number of different offences untouched by the present proceedings, and that a conviction for any of those offences would constitute mandatory grounds for a refusal (or revocation) of a firearms licence, there was no application for an adjournment pending the outcome of the criminal proceedings. As such, the submission rises no higher than a hypothetical, in that at some time in the future, the plaintiff’s licence may be required to be cancelled under s 81 of the Act for a different reason. That is an insufficient basis to refuse relief here.
Fraud
The defendant also raised an issue of fraud on the part of the plaintiff as a reason why the Court would not grant relief. The submission was that the plaintiff had admitted in June 2015 that he was attempting to use a permit acquired in his son’s name to acquire another firearm for his own possession, and accordingly, the Court ought not grant relief to perpetuate a fraud.
The submission seemed to me to be a re-characterisation of the argument about the underlying conduct of the plaintiff which, for reasons given above, is appropriately dealt with as part of an assessment involving the merits of the case.
However, assuming the Court entertained the submission as a basis to refuse relief, the evidence relied upon to support such a serious allegation was insufficient. Reliance was placed on a comment asserted to have been made by the plaintiff in June 2015, to a person whose affidavit evidence was adduced by way of an exhibit to the affidavit of someone else, namely the instructing solicitor for the defendant, and who therefore could not be cross-examined. Further, the comment itself (to the effect of the admission alleged) was the deponent’s opinion about what was said, rather than what was actually said by the plaintiff. Moreover, there was nothing before the Court to suggest that the plaintiff maintained the same intention when he attended the Registry of the defendant in October 2015. It fell well short of what was necessary to discharge the heavy evidentiary burden for a finding of fraud on the part of the plaintiff to be made.
Delay
Any argument about delay as a discretionary reason to refuse relief has been dealt with as part of the discretion to extend time above.
Conclusion on the exercise of discretion
As the plaintiff has established an error of law that is jurisdictional, and as the bases on which to refuse relief have been rejected, the plaintiff is entitled to relief by way of a declaration of invalidity.
Costs
The disposition of costs is in the general discretion of the Court, although ordinarily that discretion will be exercised so that costs are awarded to the successful party: Gray v Richards (No 2) [2014] HCA 47; 315 ALR 1 at [2]. There does not appear to be any basis for departing from the ordinary course here. The matter was heard within the day allocated and there were no severable issues on which the plaintiff was unsuccessful. Accordingly, the usual principle that costs follow the event will apply.
Orders
The orders of the Court are:
1. Pursuant to r 3557(4) of the Court Procedures Rules 2006 (ACT) the time in which to file the Originating Application is extended to 28 August 2017.
2. Declare that the decision of the delegate of the Registrar of Firearms made pursuant to s 81(1)(b)(ii) of the Firearms Act 1996 (ACT) to cancel the firearms licence number N0001108C held by the plaintiff is invalid and of no effect.
3. The defendant is to pay the plaintiff’s costs.
| I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: |
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