Pannach v Chief Commissioner of Police
[2016] VSC 227
•12 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT LIST
S CI 2016 00677
| NICHOLAS JOHN PANNACH | Plaintiff |
| v | |
| CHIEF COMMISSIONER OF POLICE | Defendant |
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JUDGE: | GINNANE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 12 May 2016 |
CASE MAY BE CITED AS: | Pannach v Chief Commissioner of Police |
MEDIUM NEUTRAL CITATION: | [2016] VSC 227 |
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JUDICIAL REVIEW – Firearms – Application to be deemed not to be a prohibited person – Applicant subject to South Australian restraining order – Revocation of order – Whether applicant could apply for a declaration that he was not a prohibited person under the Firearms Act – Application dismissed – Firearms Act 1996 ss 3, 189; Summary Procedure Act 1921 (SA) s 99(1); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 26.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
| For the Defendant | No appearance |
HIS HONOUR:
In September 2015, Mr Nicholas Pannach made an application to the Chief Commissioner of Police to be issued a firearms licence. The Chief Commissioner refused the application on the ground that Mr Pannach was a ‘prohibited person’ within the meaning of the Firearms Act 1996. Section 17(1)(a) of the Firearms Act states that the Chief Commissioner must not issue a firearms licence to a prohibited person.
Mr Pannach now seeks a declaration that he be deemed not to be a ‘prohibited person’ under s 189 of the Firearms Act.
Mr Pannach requested that the proceeding be determined ‘on the papers’. The Chief Commissioner consented to that request. Mr Pannach filed written submissions and Mr N Lopez, solicitor for the Chief Commissioner, also filed submissions.
Under the Firearms Act, the term ‘prohibited person’ includes persons who are currently subject to a family violence or personal safety intervention order, or an order of a corresponding nature made in another State or a Territory. Persons who have been subject to any such order within the last five years are also prohibited persons.
On 23 June 1997, the Mount Gambier Magistrates Court, South Australia, made an interim restraining order against Mr Pannach. A certificate of record records that the interim restraining order imposed restrictions on Mr Pannach’s contact or communications with a particular person and relevantly stated:
4.That any firearm in your possession be confiscated and held by the Registrar of Firearms, to be returned to you if this Restraining Order is not confirmed.
5. That a member of the police force is authorised to enter any premises in which any firearm in your possession is suspected to be and to search for and take possession of any such firearm.
6. That you be disqualified from holding or obtaining a licence or permit to be in possession of a firearm.
7. That any license or permit to be in possession of a firearm that you currently hold be suspended until a court determines whether to confirm this Restraining Order.
On 30 June 1997, the Mount Gambier Magistrates Court confirmed the interim restraining order, including the conditions disqualifying Mr Pannach from holding or obtaining a licence or permit to be in possession of a firearm and suspending any such licence or permit he may have held at the time. The Mount Gambier Magistrates Court made the final restraining order pursuant to s 99(1) of the Summary Procedure Act 1921 (SA).
In 1997, the Summary Procedure Act 1921 (SA) provided for the making of restraining orders against respondents who were not family members of the protected person. The Domestic Violence Act 1994 (SA) provided for the making of domestic violence restraining orders, where parties were ‘family members’. The final restraining order issued against Mr Pannach was similar to an order which may be made by a Victorian Court under the Personal Safety Intervention Orders Act 2010.
On 28 July 2015, following an application from Mr Pannach, the Mount Gambier Magistrates Court revoked the restraining order pursuant to s 26 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).[1]
[1]The Intervention Orders (Prevention of Abuse) Act 2009 (SA) consolidated domestic and non-domestic intervention orders into one Act and repealed s 99 of the Summary Procedure Act 1921 (SA) and the entirety of the Domestic Violence Act 1994 (SA).
Mr Pannach’s case is that because the South Australian restraining order made against him has been revoked he should be deemed not to be a prohibited person under the Firearms Act. He recognises that under s 3 of the Firearms Act he is automatically declared a prohibited person, because he was the subject of a final intervention order until 28 July 2015.
Mr Pannach wishes to obtain a firearms licence for hunting, sport or target shooting, primary production and professional pest control. He has acquired a 268‑acre farm, and a firearms licence will enable him to control vermin and, possibly, to euthanise stock. He states that, as the restraining order was revoked in its entirety and he has never been found guilty of violent or intimidatory conduct, he is now eligible to apply for and be granted a firearms licence in South Australia. He says that any conditions in the intervention order were specific to South Australian legislation and, because the order was never registered in Victoria, the laws of South Australia should apply.
He also relies on the principles of Wednesbury[2] unreasonableness, in that it has been 18 years since the order was made and he has not violated it, nor had any interaction with the protected person.
[2]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”).
The Chief Commissioner opposes Mr Pannach’s application that he be deemed not to be a ‘prohibited person’ and submits that s 189 of the Firearms Act does not apply to Mr Pannach and, as such, the Court is unable to make the declaration he seeks. He submits that Mr Pannach has no other option but to wait five years from when he was last subject to the final restraining order.
The relevant legislation
Section 189 of the Firearms Act provides in relevant respects:
…
(1AA)A person who is a prohibited person referred to in paragraph (c)(ib) of the definition of prohibited person in section 3(1) may apply to the Court for a declaration that the person—
(a)is deemed not to be a prohibited person by virtue of being or having been subject to an order of a kind referred to in that paragraph; or
(b) is so deemed for limited purposes only.
…
The term ‘prohibited person’ is defined in s 3 of the Firearms Act and relevantly includes:
(c) a person who is subject to —
…
(ib) a final order under the Personal Safety Intervention Orders Act 2010 that does not cancel or suspend a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory; or
(ic) a final order under the Personal SafetyIntervention Orders Act 2010 that does cancel or suspend a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory; or
…
or, in relation to a person, not more than 5 years have expired since the person was subject to such an order …
As can be seen from the differences between subparagraphs (ib) and (ic) of s 3(c), the Firearms Act distinguishes between intervention orders which contain firearm conditions and intervention orders which do not contain firearm conditions.
Section 189(1AA) of the Firearms Act refers only to paragraph (c)(ib) of the definition of prohibited person. Therefore, it applies only to persons who are prohibited persons because they are subject, or have been subject within the last five years, to intervention orders which do not contain firearms conditions.[3] It does not apply to persons who have been subject to intervention orders that include firearms conditions. Persons in that latter category, including Mr Pannach, must wait until five years have expired since they have been subject to the restraining order.
[3]Stephensen v Lebessis [2014] VSC 498, [48].
While the application of s 189(1AA) is clear from its words, s 127 of the Personal Safety Intervention Orders Act 2010 also makes clear that respondents to final intervention orders which do contain firearm conditions may not make an application under s 189 of the Firearms Act. That section provides:
Relationship with Firearms Act 1996 …
To remove doubt, it is declared that if the court decides to include in a personal safety intervention order a condition [suspending or cancelling a firearms authority] –
(a) no appeal lies against the decision under the Firearms Act 1996 … ; and
(b)the respondent may not apply under section 189 of the Firearms Act 1996 for a declaration that the person is deemed not to be a prohibited person for that Act.
This Court was not provided with a copy of the original final restraining order issued against Mr Pannach. However, the extracts from the certificate of record, set out at paragraph 5 above, indicate that the restraining order contained conditions suspending or cancelling firearms licences. Such conditions would have been consistent with s 99D of the Summary Procedure Act 1921 (SA) which, at the time the final restraining order was made, provided:
Firearms orders
99D. (1) Subject to subsection (2), when the Court makes a restraining order under section 99, it must also make the following supplementary orders:
(a) if the defendant has possession of a firearm—
(i) an order that the firearm be confiscated, and disposed of or dealt with as directed by the Court; and
(ii) if the circumstances of the case so require—an order authorising a member of the police force to enter any premises in which such a firearm is suspected to be, and search for and take possession of any such firearm; and
(b) if the defendant has a licence or permit to be in possession of a firearm—an order that the licence or permit be cancelled and delivered up to the Registrar of Firearms; and
(c) an order that the defendant be disqualified from holding or obtaining a licence or permit to be in possession of a firearm.
Conclusion
Section 189(1AA) of the Firearms Act applies only those persons who are subject, or have been subject within the last five years, to final intervention orders which do not contain firearm conditions. The South Australian restraining order to which Mr Pannach was subject until 25 July 2015 did contain firearm conditions. I therefore consider that the restraining order was ‘an order of a corresponding nature made in another State or a Territory’ to the order referred to in s 3(c)(ic) of the Firearms Act. The fact that the South Australian order was never registered in Victoria does not prevent the operation of the Firearms Act because it is an order of a ‘corresponding nature’ to intervention orders that could be made under Victorian legislation.
In my opinion, Mr Pannach’s application can only be dealt with in accordance with the provisions of the Firearms Act. Whether or not Mr Pannach is eligible to apply for and be granted a firearms licence in South Australia does not assist his case, nor do the principles of Wednesbury unreasonableness. The Victorian Parliament, through the enactment of legislation, has decided what period of time should elapse before someone in Mr Pannach’s position is no longer a prohibited person. Mr Pannach is not a person to whom s 189 of the Firearms Act applies and therefore must wait five years from the date of the revocation of the South Australian restraining order to be eligible to apply for a firearms licence.
The plaintiff’s summons dated 25 February 2016 is dismissed and the proceeding is dismissed.
I will reserve liberty to apply, to be made in writing on or before 26 May 2016, if any further orders are sought.
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