Marksman Training Systems Pty Ltd v The Registrar of Firearms (No 3) - [2015] SADC 16

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MARKSMAN TRAINING SYSTEMS PTY LTD v THE REGISTRAR OF FIREARMS (No 3)
[2015] SADC 16
Reasons for Ruling of His Honour Judge Tilmouth
20 February 2015
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
Examination of the jurisdiction and powers of the District Court to make ancillary or consequential orders relating to appeals within the Administrative and Disciplinary jurisdiction of the Court and consideration given to the circumstances in which it is appropriate to order costs thereunder.
Held 1: That s 42G(1) of the District Court Act 1991 (SA) which provides that on an appeal the Court 'may ... make any ancillary or consequential orders', supplies the source of power to make such orders, but it does not vest jurisdiction to make orders over subject matter not otherwise within the jurisdiction of the Court.
2: In the usual circumstances it was 'necessary in the interests of justice' to make a partial order for costs in favour of the appellant, within the meaning of s 42G(2) of the District Court Act.
District Court Act 1991 (SA) ss 42D(2), 42E(3), 42F(b), 42G(1) Part 6 Division 2; Firearms Act 1977 (SA) ss 20(1)(a), 20(1)(b), 26C(1)(a); District Court Civil Rules 2006 (SA) DCR 6 264(5)(c); Evidence Act 1929 (SA) ss 69A(1)(a), 69AB(1)(a)(vi), 69AB(3), referred to.
Harris v Caladine (1991) 172 CLR 84, applied.
Moore v The Registrar of the Medical Board (No 2) (2001) 219 LSJS 448, discussed.
Connelly v DPP (UK) [1964] AC 1251; Ex parte Farrel, Re Austin (1960) 77 WN (NSW) 743; Dwyer v National Companies and Securities Commission (No 2) (1988) 15 NSWLR 285; Kalifair Pty Ltd (Australia) v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; Yirrell v Yirrell (1939) 62 CLR 287; Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; Marin v The Chiropractic & Osteopathy Board of South Australia (No 2) (2009) SADC 43; Registrar of the Veterinary Surgeons Board of SA v Mooney & The Veterinary Surgeons Board (SA) (No 2) [2009] SADC 69; Ghafournejad v Passenger Transport Standards Committee Master Norman, unreported 1 June 2012; Advertiser Newspapers Ltd v Bunting (2001) 212 LSJS 12; Bissett v Deputy State Coroner (2011) 83 NSWLR 144, considered.

MARKSMAN TRAINING SYSTEMS PTY LTD v THE REGISTRAR OF FIREARMS (No 3)
[2015] SADC 16
Proceedings for final orders

Following the protracted and fragmented hearing of these appeals against decisions of a Delegate of the Registrar of Firearms to cancel the appellant’s firearms licences, the Court delivered judgment on 29 August 2014, making numerous primary findings of fact and resolving a number of issues of statutory construction.[1] The appeals were then adjourned to enable the parties to advance further submissions as to the appropriate course of disposition as a result thereof, and as to what conditions or directions might be appropriate as a consequence, if any. In a second judgment delivered on 22 January 2015, the Court determined Marksman’s appeals should be allowed, the determinations to cancel its Dealers and Range firearms licences be rescinded, and that they be reinstated. Liberty was given for the parties to be further heard on the fine detail of the proposed conditions of licence before final orders were entered, as to the fate of firearms belonging to Marksman (or third parties) in the custody of the Registrar of Firearms, and as to the question of costs.[2] These reasons deal with those issues and finalises the appeals.
[1] Marksman Training Systems Pty Ltd v The Registrar of Firearms [2014] SADC 150 (the first judgment).
[2] Marksman Training Systems Pty Ltd v The Registrar of Firearms (No 2) [2015] SADC 5 (the second judgment).
Conditions of Licence
The proposed conditions upon reinstatement of the licences were partly fashioned from the terms of a consent order entered by Master Blumberg on 4 June 2013.[3] This order is Appendix A to the first judgment. The terms of that order were submitted by way of an ex-curial agreement between the parties as an expedient for maintaining the status quo pending resolution of the appeals. Marksman had previous control over some 600 firearms through its dealership and range licences. An aspect of the interim arrangement was to significantly reduce the number of firearms retained under each licence, as a compromise whilst the appeal remained undetermined.[4] Both parties agree that identical conditions of licence be made as part of the final orders of disposition so far as it relates to the maximum number of firearms held under each licence.
[3] Second judgment [58].
[4] Orders (e) and (f) therein.
The introductory words to the consent order ‘be stayed pending the determinations of this appeal’, pick up s 42D(2) of the District Court Act 1991 (SA), which provides:
42D—Stay of operation of decision appealed against
(2)However, on the making of an appeal, the Court or the original decision-maker may, on application or at its own initiative, make an order staying or varying the operation or implementation of the whole or a part of a decision appealed against pending the determination of the appeal if the Court, or the original decision-maker, is satisfied that it is just and reasonable in the circumstances to make the order.
There can be no doubting the capacity of the Court to order an interim stay in the circumstances, so as to preserve the subject matter of the underlying proceedings on appeal, or of the practicalities of resolving the matter in that way. The power to stay originates from the inherent jurisdiction of the Court to control its own proceedings so as to prevent injustice: Connelly v DPP (UK),[5] Ex parte Farrel, Re Austin.[6] Stays are often utilised when the outcome of an appeal would otherwise be rendered nugatory: Dwyer v National Companies and Securities Commission (No 2);[7] Kalifair Pty Ltd (Australia) v Digi-Tech (Australia) Ltd.[8]
[5] [1964] AC 1251.
[6] (1960) 77 WN (NSW) 743, 744.
[7] (1988) 15 NSWLR 285, 287.
[8] (2002) 55 NSWLR 737.
Another aspect of the order of June 2013, was the surrender of those firearms exceeding the maximum agreed in respect of each licence.[9] The orders further provided a mechanism facilitating Marksman’s access to and exchange of the surrendered firearms, so as to keep the number within the prescribed limits.[10] Between about 100-122 such firearms of considerable value are at stake. It is however contended by the Registrar that the Court lacks the jurisdiction to make such orders with respect to the surrended firearms.
[9] Order (j).
[10] Order (n).
The District Court sitting in its Administrative and Disciplinary Division is invested with jurisdiction to determine appeals of the present nature by virtue of s 26C(1)(a) of the Firearms Act 1977 (SA). The powers it may exercise in hearing and determining those appeals are contained within Part 6, Division 2 of the District Court Act. By allowing the appeals the Court has necessarily determined there are ‘cogent reasons’ for departing from the decisions of the Registrar within the meaning of s 42E(3). By its second judgment, the Court exercised the powers of disposition furnished by s42F(b) of the District Court Act, in rescinding the decisions of the original decision–maker, and by substituting therefore the decision the Court considered appropriate, namely the reinstatement of the licences. Since the matter was not remitted, the capacity under s 42F(c) to impose ‘any directions or recommendations’ upon remission simply does not arise.
Accordingly the power to make orders of the kind proposed with respect to the surrendered firearms cannot be found in the stay power furnished by s 42D of the District Court Act, or any of the adjunct powers of disposition referred therein. Moreover it is clear the consent of the parties cannot confer that jurisdiction which the court otherwise lacks: Yirrell v Yirrell,[11] Thomson Australian Holdings Pty Ltd v Trade Practices Commission.[12] It is here that the appellant seeks to invoke the powers contained in s 42G(1) of the District Court Act. This provides:
[11] (1939) 62 CLR 287, 295, 305-306, 314.
[12] (1981) 148 CLR 150, 163.
Subdivision 3—Other proceedings
42G—Costs and ancillary orders etc in other proceedings
(1) The Court may, on an appeal, make any ancillary or consequential order that the Court considers appropriate.
It can be seen that s 42G(1) predicates the making of ‘ancillary or consequential orders’ in appeals over which the court has validly assumed jurisdiction. Properly construed, this section confers power but it does not confer jurisdiction. The distinction is an important and fundamental one, as observed by Toohey J in Harris v Caladine,[13] in a passage quoted with approval by Gleeson CJ, Gaudron and Gummow JJ in Australian Securities and Investments Commission (ASIC) v Edensor Nominees Pty Ltd:[14]
The distinction between jurisdiction and power is often blurred, particularly in the context of "inherent jurisdiction". But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and "such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred": Parsons v Martin (1984) 5 FCR 235, at 241; see also Jackson v Sterling Industries Ltd (1987) 162 CLR 612, at 630-631.
[13] (1991) 172 CLR 84, 136, refer also to Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602, 632-633, Hookham v The Queen (1994) 181 CLR 450, 460-462.
[14] (2001) 204 CLR 559, [64] - refer also to paras [63], [169]-[171].
Whether the Court has jurisdiction in this instance depends upon the underlying subject matter of the appeals. These appeals involved the cancellation of Marksman’s dealers and firearms range licences pursuant to ss 20(1)(b) and 20(1)(a) respectively of the Firearms Act. The power to cancel was essentially premised and exercised upon proven contraventions of the Firearms Act and the Firearms Regulations 2008 (SA), coupled with determinations that Marksman was not a fit and proper person to hold such licences within the meaning of s 20(1)(b) of the Firearms Act, and that it was no longer in the public interest for it to retain its firearms licence under s 20(1)(a).
The firearms currently retained by the Registrar of Firearms were not ‘seized’ in the course of the licence investigation or cancellation process. For that matter they were not ‘seized’ under any other statutory power furnished by the Firearms Act. Accordingly the mechanism for forfeiture and disposal provided for in ss 34 and 35 of the Firearms Act are of no avail under the circumstances. They formed no part of the decision-making process to cancel the licences either. As the firearms were voluntarily handed over, they comprise no part of the subject matter of the appeals over which the court has the power to make ancillary or consequential orders. Accordingly, the application for the inclusion of orders relating to the surrendered firearms must be declined for want of jurisdiction.
This conclusion stands in contrast to the orders of the first kind limiting the number of firearms retained by Marksman under the respective licences. The capacity to impose those conditions derives from the power of the original decision-maker to impose conditions of the firearms licence ‘at any time’, furnished by ss 13(4), 13(5) and 17(4a) of the Firearms Act. The requirement to give notice of the proposal to impose conditions is in substance satisfied here by the advance written submissions of the parties: ss 13(b) and 17(4b) respectively. It might be recalled that the Delegate considered and rejected the imposition of conditions on the merits, not because of the lack of power.[15] As noted in the second judgment, these conditions ‘should be seen and enforced as if they were conditions of licence imposed by the Registrar’.[16]
[15] Reasons paras 59 and 69 respectively.
[16] At [60].
So far as other miscellaneous conditions were contemplated, it is conceded that it is not appropriate to require that Marksman to decline to accept firearms for surrender, as that situation is independently regulated anyway. As to the proposal to provide records to the Registrar of Firearms of incoming and outgoing firearms movements, and print-outs of current stocks lists, there are sufficient extant powers of inspection and audit available to the Registrar when appropriate, such as ss 30 and 32 of the Firearms Act and r 22(1)(j)(k) of the Firearms Regulations. That conclusion is in accordance with the determination in the second judgment that it would be ‘inappropriate to impose conditions because there are effective powers of inspection in the Firearms Act itself…’.[17] It is also conceded that a third condition regarding storage of the firearms was inappropriate, since that contingency is catered for by r 22(1)(f) of the Firearms Regulations.
[17] Second judgment [57].
As a result the appropriate orders are as follows:
1.   The appeal is allowed and the decisions of the respondent to cancel the appellant’s Firearms Dealers Licence 280611L and Firearms Licence 315699D are rescinded, and in lieu thereof decisions imposing the following conditions are substituted:
a.     Firearms Dealers Licence 280611L: the total number of firearms (including firearms for sale, safekeeping, consignment or repair) held under or connected to the licence at any one time is not to exceed 275;
b.     Firearms Licence 315699D: the total number of firearms registered under this licence at any one time is not to exceed 86;
c.     Each of conditions set out at (a) and (b) are imposed for a period of 12 months from the date of this order at which time the conditions lapse.
2.   The stay imposed on 4 June 2013 is revoked.
Costs
Extensive submissions followed as to costs, particularly in light of the protracted nature of the proceedings, the large quantity of material before the Court and the complexity of the issues involved. The original two days allocated for hearing, were completely consumed by submissions for the appellant. Thereafter the appeals were adjourned for various reasons a number of times, producing a prolonged and disjointed litigation history. It might be recalled here that the decisions of the Delegate were made on 8 April 2013 and the appeals first came before the Court on 5 September that year.
There is no provision enabling costs orders relating to the cancellation process under s 20 of the Firearms Act. The power to order costs at this stage of proceedings is regulated by s 42G(2) of the District Court Act. This provides:
42G—Costs and ancillary orders etc on appeals
…
(2)However, no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice.
There has been very little close examination of the scope and proper interpretation of this section. In most circumstances Judges of the District Court do not generally make any orders as a matter of practice with respect to costs falling within its purview. It is obvious that the primary import of s 42G(2) of the District Court Act is to do away with the ordinary rule that costs follow the event. Furthermore, the section is indiscriminate as to costs of an appeal, as distinct from proceedings conducted before an original decision-maker. The sole trigger for engaging the power to award costs is what is ‘necessary in the interests of justice.’ On this construction of the section the capacity to make orders for costs is not confined to the costs of an appeal. Sections 42G(1) and 42H(2) are not expressed in that way. For example it would be open in the prescribed circumstances for the Court to make orders for costs of proceedings before the original decision-maker, to adjust, vary or rescind costs orders considered inappropriate, as well as the costs of an appeal itself.
The expression ‘necessary in the interests of justice’ imposes a limitation on the exercise of the power to award costs unconfined by such qualifications as ‘exceptional’, ‘unique’ or ‘rare’ and the like,[18] but once satisfied furnishes a discretion at large to award costs. The decision of Judge Smith in Moore v The Registrar of the Medical Board (No 2)[19] is frequently referred to in this context: see for instance Marin v The Chiropractic & Osteopathy Board of South Australia (No.2);[20] Registrar of the Veterinary Surgeons Board of SA v Mooney & The Veterinary Surgeons Board (SA) (No 2),[21] Ghafournejad v Passenger Transport Standards Committee.[22]
[18] R v Fowler (2006) 248 LSJS 285 [18], R v O’Toole [2013] SASCFC 18, [50].
[19] (2001) 219 LSJS 448.
[20] [2009] SADC 43, [5]-[6].
[21] [2009] SADC 69, [15].
[22] Master Norman, unreported 1 June 2012 [21].
In Moore Judge Smith considered that ‘success alone will not make “it necessary in the interests of justice” that a favourable order for costs follow’.[23] He concluded that ss 42G and 42H(2) of the District Court Act required:
…there be some unusual or out of the ordinary feature of the contest which demonstrates that one party in the interests of justice is entitled to an order for costs.[24]
[23] At [12].
[24] At [16].
This observation was borrowed by analogy from the circumstances in which courts are prepared to award costs on a higher scale than on a party/party basis.[25] An order for costs in favour of the appellant was made in Moore on account of what His Honour described as ‘compelling and unusual background circumstances’. These included the underlying merits of the appeal, but more importantly, what might be generically described as the ill-treatment of the appellant before an appeal was launched.
[25] At [17].
In this particular case Marksman fastens upon a number of findings adverse to the Registrar of Firearms. For the sake of economy it is only necessary to refer to those matters identified in paragraph [178] of the first judgment. By the same token a number of substantial issues were resolved in favour of the Registrar, summarised at paragraph [180] therein. Counsel for Marksman, Ms Charlesworth, emphasised the fundamental impediment facing Marksman in adequately presenting its case. It was impossible to identify the precise issues under deliberation, it was not duly informed of the proposed findings, and was supplied ‘voluminous accompanying material [which was] neither indexed nor …cross-referenced.’[26] Marksman’s solicitor, Mr McCarron, proffered the following criticism on 24 January 2013:[27]
Our client should not be required to guess which adverse material buried in particular statements might be relied upon by you and to address each and every combination of opinion, speculation or circumstances arising out of the statements. In preparing these submissions, our client will refer to parts of the material annotated in the footnotes of the November report as constituting the material to be relied upon by you, namely on those parts that appear to be relevant to the findings that were footnoted. You are otherwise obliged, as a matter of fairness, to draw our client’s specific attention to any additional material that might be relied upon by you and to invite our client’s submission in relation to that additional material. Our client would not otherwise have a reasonable and fair opportunity to respond to your letter.
[26] Exhibit PMR-65, p1196.
[27] Exhibit PMR-43, p549.

It is not difficult to sympathise with that position. The Court laboured under a distinctly similar disadvantage. The scheme of the letter of cancellation was to defer the essential findings of fact from the body of the reasons, to the appendices.[28] The appendices recited various matters referenced from numerous footnotes, mostly comprising statements of police officers involved in the inquiry. The breaches and contraventions found proven at the conclusion of the letter singularly failed to cross-reference to any particular firearm, occasion or event.
[28] Exhibit PMR-43, p549.
To illustrate the point, the format of the final paragraphs of the cancellation letter are reproduced here again:[29]
[29] Taken from the first judgment at [17] and [18], emphasis in original.
Firearms Dealer’s Licence 280511L
57.In accordance with section 20(1)(a) I am satisfied that Marksman has contravened or failed to comply with provisions of the FA Act and also conditions of its dealer’s licence. I find that Marksman has:
(a)     contravened section 18 of the FA Act on multiple occasions as set out above;
(b)     contravened section 25(1)(c) of the FA Act on multiple occasions as set out above; and
(c)     contravened conditions of licence imposed by regulation 22 of the FA Regulations including breaches of the Firearm Dealer Licence Conditions Instructions to Dealers on multiple occasions as set out above.
58.In accordance with section 20(1 )(b) of the FA Act I am further satisfied that Marksman is not fit and proper to hold a dealer’s licence in that it has demonstrated an inability to conduct its business in such a way as to protect the public by ensuring firearms are accounted for and readily identified as missing.
59.I have given lengthy consideration to the imposition of conditions particularly in light of the fact that this licence is essential to the livelihood of Marksman’s directors and employees, however because of the gross negligence displayed by Marksman and my finding that Marksman lacks fitness and propriety I have determined that the imposition of conditions is not appropriate in these circumstances.
60.I have determined to cancel Marksman’s dealer’s licence effective Tuesday 16 April 2013.
…
Firearms licence 315699D
61.In accordance with section 20(1)(a) I am satisfied that Marksman has contravened or failed to comply with provisions of the FA Act and also conditions of its firearms licence. I find that Marksman has:
(a)     contravened section 18 of the FA Act on multiple occasions as set out above;
(b)     contravened section 25(1)(c) of the FA Act on multiple occasions as set out above; and
(c)     contravened regulation 21(1) of the FA Regulations as set out above.
62.In accordance with section 20(1)(b) of the FA Act I am further satisfied that Marksman is not fit and proper to hold a firearms licence in that it has demonstrated an inability to conduct its business both in relation to the dealership and the storage and location of firearms on the commercial range in such a way as to protect the public by ensuring firearms are accounted for and readily identified as missing.
63.In accordance with section 20(1a) of the FA Act I am satisfied that it would be contrary to the public interest to permit Marksman to continue to possess and use firearms.
64.I have given lengthy consideration to the imposition of conditions particularly in light of the fact that this licence is essential to the livelihood of Marksman’s directors and employees, however because of the gross negligence displayed by Marksman and my finding that Marksman lacks fitness and propriety I have determined that the imposition of conditions is not appropriate in these circumstances.
65.I have determined to cancel Marksman’s firearms licence effective Tuesday 16 April 2013.
It can be seen that the ‘multiple occasions’ were not identified, nor were they ‘set out above’.
By the time the appeals came before the court there were some 1500 pages of dense materials to collate and digest. As a consequence, I observed in the first judgment that ‘the history of numerous firearms involved, is difficult to trace’.[30] I later felt it necessary to make the further observation:[31]
It is not self-evident what precise breaches were found proven on the face of the quoted paragraphs. They are not cross-referenced to earlier passages in the reasons, or to the annexures thereto which contain the majority findings of fact. As a consequence of this structure, the parties to the appeal were in some difficulty in preparing materials that collated the numerous findings. The Registrar’s solicitor spent what must have been many hours preparing an ‘evidentiary chart’ tracking the course of some 64 firearms arising from the audit of November 2011. This chart will be referred to frequently in the course of this judgment as a reference point for the purpose of marshalling the various findings and how they relate the particular firearms.[32] Had it not been for this material, there is a distinct possibility the appeals would be destined for remission to the Delegate to complete the fact finding process.
[30] First judgment [2].
[31] First judgment [19].
[32] References hereafter by number are references to firearms 1-64, where they apply.
It was not until the chart referred to became available that the appellant was in a realistic position to make an effective response. Nor was it possible until then for the court to even begin to piece together the precise basis upon which particular breaches or contraventions were established and with respect to which firearms. It was this situation in particular which led to the appeal becoming so prolonged. The failure to clearly expose the precise basis of the decision making, thus making it practically impossible for the appellant and the court to assess the merits, forms a proper basis for concluding that it is necessary in the interests of justice to make an order in favour of the appellant, to reflect the unacceptable degree of disadvantage Marksman continued to labour under and the corresponding court time pre-occupied with dealing with it.
The hearing preceding the first judgment covered 11 days. One expects that it is impossible to guess by how long the proceedings were extended by reason of this consideration and it would almost certainly be a futile task to attempt to do so. So as to do some rough justice and by adopting a broad-axe approach, whilst at the same time down-playing if anything the ‘knock-on’ effect of a deficient decision-making process, it is more than appropriate to allow the appellant some costs on a party/party basis.
Accordingly there will be an order that the respondent pay the costs of the appellant for two days covering the attendance of a solicitor (over five hours each day), the attendance of counsel (Ms Charlesworth) for two days according to item 1 of the ‘Indicator on Counsel Fees’, and for one day according to the same scale, for second counsel (as Mr McDonald appeared on some and not other days). Such costs are to be agreed or taxed, with the parties at liberty to apply to fix costs in lieu thereof, by way of a lump sum pursuant to 6R-DCR 264(5)(c) of the District Court Civil Rules 2006.
A number of criticisms were made of the conduct of the police in the cancellation inquiry. The dispute detailed in the first judgment as to the authority to enter and inspect the Franklin Street premises was one matter pointed to by counsel.[33] Although this was resolved in favour of Marksman having appropriately insisted upon its legal rights, it did not otherwise involve high-handed conduct on behalf of the police. They may well have had authority to enter as agents of those who did in fact have such authority, although that point was not pressed. It might also be acknowledged that the difficulties on appeal were compounded on account of shortcomings in relation to audits,[34] particularly as representatives of Marksman were not permitted to be present, leading the Court to suggest that course might provide for less imprecise and more reliable outcomes.[35]
[33] First judgment [125]-[141].
[34] First judgment [73]-[77].
[35] First judgment [76].
The attitude of the respondent in the appeal process itself was a perfectly reasonable and measured one. The pivotal issue was accounting for the 12 missing firearms. This was appropriately pursued and emphasised by counsel for the Registrar of Firearms. The other matters referred to by counsel, either taken alone or in their accumulative effect, do not require any, or any additional orders for costs in the interests of justice. Whilst in the result Marksman has been more successful than it has not, the resolution of the case was a relatively finely balanced one. The underlying breaches and contraventions were always matters of legitimate concern.
Suppression Orders
There is one final issue. During the course of the appeal, an order for suppression was made pursuant to s 69A(1)(a) of the Evidence Act 1929 (SA). The order essentially related to protecting from publication the identity of a former employee of Marksman, referred to by the pseudonym ‘Mr C’ during the course of the two previous judgments. These orders were made (the appellant taking no position on the question) as apposite to the prevention of prejudice to the proper administration of justice within the meaning of s 69A(1)(a), that is to avoid the risk of the potential prejudice to Mr C: Advertiser Newspapers Ltd v Bunting,[36] Bissett v Deputy State Coroner.[37]
[36] (2001) 212 LSJS 12.
[37] (2011) 83 NSWLR 144.
Application is now made by the Registrar for confirmation of those orders. They have become liable to review since these proceedings are about to be ‘otherwise concluded or terminated’ within the meaning of s 69AB(1)(a)(vi) of the Evidence Act. Section 69AB(3) thereof facilitates the representation on such review, of various parties and interests, including representatives of the media. Although making no submission as to the substance of the proposed confirmation, counsel for Marksman questioned whether such an order could be made without first notifying those potential interests and giving them the chance to be heard.
Representatives of the media sat in court during the first hearing, on occasion. Immediate requests were made by the media for copies of the first and second judgments after they were handed down, so it is evident the local media were aware when judgments were due to be delivered and of course the matter appeared regularly in the cause list. There is no reason to think otherwise with respect to the hearing of this final stage of the proceedings. The complete answer to this objection, so far as it went, is that the media can apply to vary or revoke the suppression order in any event. Furthermore, any legitimate interest in confirming, varying or revoking the suppression order is protected by the right to appeal provided for in s 69A(1)(c) of the Evidence Act. In these circumstances the previous suppression order is therefore confirmed.
Orders
For the above reason there will be orders for disposition of the appeal as proposed in paragraph [13] above, for costs in terms of paragraph [26], and in relation to the extant suppression order in terms of paragraph [31]. There will be no order with respect to the firearms presently in the possession of the Registrar of Firearms, for the reasons set out in paragraphs [5]-[10].