Pollard v Commissioner of Police, NSW Police Force

[2021] NSWCATAD 227

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Pollard v Commissioner of Police, NSW Police Force [2021] NSWCATAD 227

Hearing dates:

On the papers

Date of orders:

09 August 2021

Decision date:

09 August 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Dr J Lucy, Senior Member

Decision:

1. The time for the applicant to lodge his application to the Tribunal for administrative review of the respondent’s decision to revoke his firearms licence is extended to 3 June 2021.

2. Disclosure to the applicant of the respondent’s confidential submissions, the confidential statement of Nigel Turney and the information report filed in accordance with Order 5 made on 29 June 2021, is prohibited, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW).

3. Publication of the respondent’s confidential submissions, the confidential statement of Nigel Turney and the information report filed in accordance with Order 5 made on 29 June 2021, is prohibited, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW).

4. The respondent’s application under s 59 of the Administrative Decisions Review Act 1997 (NSW) is to be determined at the hearing on 19 August 2021.

Catchwords:

ADMINISTRATIVE LAW – Where respondent applied for order under s 59 of the Administrative Decisions Review Act 1997 that it not be required to lodge a confidential document - Where respondent also applied for non-publication and non-disclosure orders – Where it appeared that respondent wanted to rely upon the confidential document but not to disclose it to applicant – Whether application for order under s 59 misconceived – Where document could reveal a confidential source of information

EXTENSION OF TIME – Where respondent did not conduct an internal review in the four months following the internal review application - Where applicant lodged application to Tribunal out of time in absence of internal review report – Where respondent did not object to extension of time

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

Grant v Commissioner of Police [2020] NSWCATAD 158

Witness v Marsden (2000) 49 NSWLR 429

Category:

Consequential orders

Parties:

Howard Pollard (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors: Tankard’s Law (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2021/00159311

Publication restriction:

Non-publication orders have been made in respect of certain confidential material pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

1. The Commissioner of Police (“the Commissioner”) has made an application, under s 59 of the Administrative Decisions Review Act 1997 (NSW), for an order relieving the Commissioner of the obligation to lodge an information report with the Tribunal (“the s 59 application”). The Commissioner claims that the information report could reveal the source of confidential information supplied to the Commissioner. The Commissioner has also applied for related non-disclosure and non-publication orders.

2. Orders were made for the s 59 application to be determined on the papers.

3. I have decided to defer the determination of the s 59 application to the hearing, because it appears to me that it may be misconceived. This is because it appears, on the material before me, that the Commissioner does wish to lodge the information report with the Tribunal, but on a confidential basis. I have, however, made the non-publication and non-disclosure orders sought by the Commissioner.

Background

4. Mr Pollard first obtained a firearms licence in 1998. His firearms licence was issued for various purposes including for recreational hunting/vermin control and primary production. He then renewed it every few years.

5. On 15 March 2020, licensing police attended Mr Pollard’s property. On an inspection, police found that Mr Pollard had stored firearms and ammunition together. They also found a single barrel semi-automatic shotgun, in a gun cabinet, which was loaded with six live cartridges, and ammunition sitting on top of the cabinet. Mr Pollard was charged with firearm storage offences.

6. Mr Pollard’s firearms licence was suspended shortly after this incident.

7. The Commissioner’s delegate made a decision, on 20 November 2020, to revoke Mr Pollard’s Category ABC firearms licence. This decision was based primarily upon safe storage breaches identified by police on 15 March 2020.

8. Mr Pollard sought internal review of the revocation decision. The Commissioner’s delegate granted him an extension of time to make his internal review application. Mr Pollard, through his solicitors, made submissions in support of his internal review application on 25 January 2021.

9. The Commissioner did not respond to Mr Pollard’s internal review application or provide him with an internal review report.

10. On 3 June 2021, Mr Pollard lodged an application with the Tribunal for administrative review of the revocation decision.

11. On 29 June 2021, the Tribunal held a directions hearing which was attended by the parties’ representatives by telephone. It appears from a review of the Tribunal file that the Commissioner’s representative informed the applicant and the Tribunal at the directions hearing that the Commissioner was applying, under s 59 of the Administrative Decisions Review Act, for an order that the Commissioner not be required to lodge certain documents under s 58 of that Act.

12. The Tribunal made orders at that directions hearing for both parties to provide it with material relevant to s 59 application and ordered that the s 59 application “will be decided without the need for the parties to be present” (see NCAT Act, s 50(2)). The Tribunal also made orders to prepare the matter for hearing and it set the matter down for hearing on 19 August 2021.

Application to the Tribunal

13. A person is entitled to apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of a decision to revoke a firearms licence (other than a revocation on the basis that the holder of the licence is subject to a firearms prohibition order or an apprehended violence order) (Firearms Act 1996 (NSW), s 75(1)(c)). Mr Pollard’s licence was not revoked on the basis that he was subject to a firearms prohibition order or an apprehended violence order.

14. An application to the Tribunal is to be made in the time and manner prescribed by the procedural rules (Administrative Decisions Review Act, s 55(2)). Unless the Tribunal grants an extension of time under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), an application must be made by the end of the period of 28 days after the day on which the internal review is taken to have been finalised under s 53(9) of the Administrative Decisions Review Act (Civil and Administrative Tribunal Rules 2014 (NSW), r 24(3) and (4)(a)).

15. Section 53(9) of the Administrative Decisions Review Act provides:

(9) When an internal review is finalised An internal review is taken to be finalised if:

(a) the applicant is notified of the outcome of the review under subsection (6), or

(b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).

16. Although Mr Pollard sought an extension of time to lodge his internal review application in December 2020, his internal review application was not made until he provided the Commissioner with his submissions in support of the application for internal review on 25 January 2021.

17. The internal review was taken to have been finalised on 15 February 2021 (21 days after the date of the internal review application). Mr Pollard then had until 15 March 2021 to apply to the Tribunal (28 days after 15 February 2021). He did not apply to the Tribunal until 3 June 2021 (about three and a half months later).

18. Mr Pollard has not applied for an extension of time. On his administrative review application form, he ticked a box indicating that the application was lodged within time (which it was not).

19. The Commissioner has indicated, in submissions, that the Commissioner does not oppose an order being made extending the time to lodge the application to 3 June 2021.

20. It may be inferred that the reason why Mr Pollard did not apply to the Tribunal earlier is that he was waiting on the Commissioner to conduct the internal review. It may also be inferred, from Mr Pollard’s application to the Tribunal, that Mr Pollard did not understand that his application to the Tribunal would be out of time if he waited for the Commissioner’s internal review and it was not forthcoming.

21. It appears that neither party drew to the Tribunal’s attention, at the directions hearing on 29 June 2021, the circumstance that the application was out of time.

22. In these circumstances, and given that the Commissioner does not object to the grant of an extension of time, I have decided to extend the time for the making of the application (on the Tribunal’s own motion). I have made an order extending the time for the lodgement of the application to the Tribunal to 3 June 2021, pursuant to s 41 of the NCAT Act.

Section 59 application

23. The Commissioner identified the documents the subject of the s 59 application, in open submissions, as being a “COPS report” and an information report (“the Information Report”).

24. After lodging the s 59 application, the Commissioner’s legal representatives informed the Tribunal that the Commissioner no longer presses the application in respect of the COPS report. Accordingly, I have considered the application only in respect of the Information Report.

25. The Commissioner has filed and served, in support of the s 59 application, open submissions and an open statement of Sergeant Nigel Turney, dated 12 July 2021.

26. Mr Pollard was given an opportunity to provide material in response to the Commissioner’s material but did not do so.

27. The Commissioner also filed confidential submissions and a confidential statement of Sergeant Turney in support of the s 59 application and has sought non-publication and non-disclosure orders in respect of that material.

28. Sections 58 and 59 of the Administrative Decisions Review Act relevantly provide as follows:

58 Duty of administrator to lodge material documents with Tribunal where decision reviewed

(1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal:

(a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and

(a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and

(b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.

…

(7) Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following:

(a) an order made under section 59 (Objections to lodgment),

(b) an order made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013,

(c) section 66 (Effect of Government Information (Public Access) Act 2009) or section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act).

…

59 Objections to lodgment

(1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58.

(2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:

(a) it is satisfied that section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as not to require the disclosure of the document, or

(b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.

29. The Commissioner made the s 59 application within 28 days after receiving notice of Mr Pollard’s application as required by s 59(1) of the Administrative Decisions Review Act.

30. Section 58(1)(b) of the Administrative Decisions Review Act requires an administrator to lodge documents with the Tribunal which the administrator considers to be relevant to the determination of the application for review by the Tribunal. That provision does not require the administrator to provide those documents to an applicant. In most administrative review proceedings, the Tribunal makes directions requiring documents lodged under s 58(1)(b) of the Administrative Decisions Review Act to be provided to the applicant. That is generally required, as a matter of procedural fairness. However, there may be circumstances where such a direction is not appropriate.

31. The administrator’s obligation to lodge relevant documents within 28 days applies by operation of statute, irrespective of whether the Tribunal has directed the administrator to lodge such documents. The only way in which the administrator may be relieved of that obligation is by way of an application under s 59 of the Administrative Decisions Review Act.

32. The effect of an order under s 59 of the Administrative Decisions Review Act is that the administrator is not required to lodge the document or documents the subject of the order with the Tribunal at all. The effect of a s 59 order is similar, in this respect, to an order which a court might make following a successful public immunity claim. The effect of the order is not that the Tribunal and the respondent have access to the relevant documents in the substantive proceedings, but the applicant does not; the effect is that the document is not available for the Tribunal’s consideration at all.

33. In circumstances where an administrator wishes to lodge a document confidentially, such that the Tribunal and the administrator have access to the document but the applicant does not, the proper course is to seek a non-disclosure order in respect of that document under s 64(1)(d) of the NCAT Act.

34. It appears from the Commissioner’s open submissions that the Commissioner has misconceived the effect of s 59 of the Administrative Decisions Review Act. The Commissioner has submitted:

“In order for the Tribunal to properly stand in the shoes of the Respondent in reaching the correct and preferable decision, the Tribunal will need to consider the confidential information available to the Respondent.”

35. The Tribunal is to decide what the correct and preferable decision is when determining an application for administrative review (Administrative Decisions Review Act, s 63(1)). When determining such an application, it “stands in the shoes” of the administrator. However, that analogy does not apply when the Tribunal is determining an application under s 59 of the Administrative Decisions Review Act.

36. It appears from the passage of the Commissioner’s submissions quoted above, and from the Commissioner’s open and confidential submissions more generally, that the Commissioner does want to rely upon the Information Report in evidence, but does not want the applicant to be able to see it. If this is the case, I would not be inclined to make the order sought under s 59 of the Administrative Decisions Review Act.

37. Given my concern that the s 59 application may be misconceived, I have decided to defer the determination of that application to the hearing on 19 August 2021. It may be that, in light of these reasons, the Commissioner does not press the application. Alternatively, the Commissioner may provide a more detailed explanation of why orders under s 59 are sought. Deferral of the determination of the s 59 application to the hearing will also provide Mr Pollard with a further opportunity to be heard in respect of that application.

Non-publication and non-disclosure orders

38. The Commissioner seeks orders under s 64(1)(c) and (d) of the NCAT Act prohibiting the disclosure of the Information Report, the confidential statement of Sergeant Turney and the confidential submissions to Mr Pollard and prohibiting publication of that material.

39. Section 64(1)(c) and (d) of the NCAT Act provide:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

…

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

40. I set out some of the relevant principles in Grant v Commissioner of Police [2020] NSWCATAD 158 at [18]-[20]:

“[18] Subsections 49(2) of the NCAT Act, which authorises the holding of private hearings, and s 64(1) of the NCAT Act are to be applied bearing in mind the principle of open justice and the rules of procedural fairness. The general rule is that “[a] hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise” (NCAT Act, s 49(1)). This provision reflects the principle of open justice (CYL v YZA [2017] NSWCATAP 105 at [96]). As the Appeal Panel has commented, “the ordinary and orthodox rule in the Tribunal is that it sits in the open, the proceedings are public, and its reasons for decision are given publicly, sometimes orally, more commonly in writing” (CYL v YZA [2017] NSWCATAP 105 at [94]).

[19] The Tribunal is ordinarily bound by the principles of procedural fairness or natural justice. It “may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice” (NCAT Act, s 38(2)). Section 64(1)(d) provides an express exception to this, permitting the Tribunal to make an order that evidence be withheld from a party if the Tribunal considers this to be “desirable.” The word “desirable” should be interpreted with regard to the basic common law precept of open justice (State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61], with reference to the predecessor to s 64(1) of the NCAT Act, being s 75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)).

[20]   In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d):

‘Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proceedings in the Tribunal are ordinary adversarial proceedings and in those proceedings the rules of natural justice generally apply so as to require the Tribunal to afford various procedural safeguards to the parties. One elementary safeguard is that, except in extraordinary circumstances, the rules of natural justice prevent a party from being deprived of an opportunity to make full submissions on the issues to be decided by not being provided with all of the evidence which is before the Tribunal.’”

41. I consider that it is desirable to make orders under s 64(1)(c) and (d) of the NCAT Act prohibiting the disclosure to Mr Pollard of the confidential statement of Sergeant Turney and the confidential submissions and prohibiting publication of that material. This is desirable because those documents were filed on a confidential basis in support of the s 59 order and the application for non-publication and non-disclosure orders in respect of the Information Report. If these documents were to be published or make available to Mr Pollard, administrators would be deterred from making similar applications in future or including confidential material in support of such applications. It is desirable that administrators include confidential material in support of any such application and that this material remain confidential, irrespective of the outcome of the application.

42. Sergeant Turney states, in his open statement, that he considers, based upon his experience as a police officer, that disclosure of the Information Report would or could reveal specific information, the disclosure of which could identify confidential sources of information to law enforcement and place identified persons at risk of harm, and reveal police methodology.

43. I have reviewed the Information Report. I am satisfied that it would or could reveal specific information, the disclosure of which could identify confidential sources of information to law enforcement. I am not satisfied that the document would reveal police methodology.

44. I consider that it is desirable to make orders under s 64(1)(c) and (d) of the NCAT Act prohibiting the disclosure and publication of the Information Report, because disclosure of the Information Report could identify confidential sources of information. In a long series of cases, courts have treated persons providing confidential information to police as in a special category, usually requiring special protection (see, for example, Witness v Marsden (2000) 49 NSWLR 429 at 432 [15]). There is a real possibility that the disclosure of the identity of such a person could result in harm to that person, and discourage the provision of similar information to law enforcement officers in the future.

45. Notwithstanding that I have made the non-publication and non-disclosure orders sought by the Commissioner in respect of the Information Report, there is a separate question as to whether that report should be admitted into evidence. That question will be determined at the hearing. In determining whether to admit the Information Report, I will have regard to the requirements of procedural fairness, as well as to any submissions the parties may wish to make.

Orders

46. I make the following orders:

1. The time for the applicant to lodge his application to the Tribunal for administrative review of the respondent’s decision to revoke his firearms licence is extended to 3 June 2021.

2. Disclosure to the applicant of the respondent’s confidential submissions, the confidential statement of Nigel Turney and the information report filed in accordance with Order 5 made on 29 June 2021, is prohibited, pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW).

3. Publication of the respondent’s confidential submissions, the confidential statement of Nigel Turney and the information report filed in accordance with Order 5 made on 29 June 2021, is prohibited, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW).

4. The respondent’s application under s 59 of the Administrative Decisions Review Act 1997 (NSW) is to be determined at the hearing on 19 August 2021.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 09 August 2021