Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2)
[2016] SASCFC 72
•22 July 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
REGISTRAR OF FIREARMS v MARKSMAN TRAINING SYSTEMS PTY LTD (No 2)
[2016] SASCFC 72
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Stanley)
22 July 2016
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
Appeal against orders of the Administrative and Disciplinary Division of the District Court of South Australia.
A Delegate of the Registrar of Firearms cancelled the firearms licence and firearms dealer’s licence of Marksman Training Systems Pty Ltd, after being satisfied that Marksman was not a fit and proper person to hold such licences; that it had contravened or failed to comply with provisions of the Firearms Act 1977; and that it would be contrary to the public interest for it to hold a firearms licence. Upon a review, the Firearms Review Committee affirmed the decision of the Delegate and provided brief reasons in the form of dot points. Marksman appealed against the decision of the Delegate to the District Court.
The District Court Judge made numerous findings of fact which exposed substantial errors underlying the decision of the Delegate; found there were cogent reasons to depart from the decision to cancel the licences; and determined that Marksman’s appeal should be allowed and the licences reinstated.
The Registrar of Firearms appealed to the Full Court of the Supreme Court. The Registrar pursued five grounds of appeal contesting the Judge’s determinations, and sought to add a further ground 8 of appeal asserting that the Judge erred in failing to examine the decision of the original decision-maker on the evidence or material before the original decision-maker, which it contended was jointly the Delegate and the Firearms Review Committee. In the alternative, the Registrar contended that even if the original decision-maker was the Delegate, the Judge was nonetheless required to have regard to the reasons of the Committee.
Held, per Stanley J (Gray J agreeing) (allowing the appeal):
1. The decision appealed against is the decision of the Registrar, affirmed by the Committee, to cancel the respondent’s licences, and the District Court was required to give due weight to both the decision and the reasons for it; those reasons included not only the reasons of the Registrar but also the reasons of the Committee.
2. The Judge’s decision is infected by jurisdictional error. The Court was required to obey the imperative provision in s 42E(3) of the District Court Act 1991 and the statutory obligation to consider the reasons of the Committee is unconditional and mandatory.
3. The matter is remitted for further consideration by Judge Tilmouth, including for his Honour:
- to “examine” the decision and reasons of the Registrar of Firearms, giving due weight both to those reasons and to the reasons of the Firearms Review Committee in accordance with the reasons of this Court; and
- to give consideration to whether the parties should be given the opportunity to call further evidence pursuant to s 42E(1), District Court Act 1991; and
- to decide and dispose of the appeal by Marksman Training Systems Pty Ltd to the District Court and to pronounce new orders to that end having regard both to [3.1] and [3.2] above and to the reasons of members of this Court, which new orders may be the same as, or different from, the orders originally pronounced by his Honour.
4. The orders made by the Delegate of the Registrar of Firearms on 8 April 2013 to cancel the Firearms Dealers Licence 280511L of Marksman Training Systems Pty Ltd and to cancel the Firearms Licence 315699D of Marksman Training Systems Pty Ltd are stayed until the making of new orders by Judge Tilmouth.
Per Peek J (dissenting):
5. The correct construction of s 26C, Firearms Act 1977 is that the subject of the appeal is the Registrar’s decision. The “original decision-maker” in s 42B(2), District Court Act 1991 can only mean the Registrar of Firearms and there is nothing in the legislative scheme to suggest that a Judge is required to have regard to any reasons of the Firearms Review Committee.
6. Even if the Registrar’s contended construction were correct, proposed ground 8 of appeal should nonetheless be rejected for the following reasons, inter alia:
- The Judge did examine the Committee’s reasons and all of the subjects referred to in those reasons;
- There has been no miscarriage of justice; it is inevitable that, even if the Judge had expressly stated that he had examined the Committee’s dot points, his Honour would still have come to the same conclusion;
- The failure of the Delegate to afford Marksman procedural fairness and the refusal by the Committee to consider this important matter (thus abnegating its statutory responsibility) were in themselves cogent reasons to depart from the Committee’s decision to affirm;
- In all the circumstances it would be harsh and unconscionable to now deprive Marksman of the benefit of the disposition effected by the orders made by the District Court.
7. No appellable error is established concerning the Judge’s findings as to the degree of culpability of Marksman; fitness and propriety; or the public interest.
8. No appellable error is established concerning the Judge’s exercise of the discretion to award partial costs.
9. Permission to amend the grounds of appeal by adding ground 8 of appeal should be refused.
10. All grounds of appeal should be rejected and the appeal should be wholly dismissed.
11. If there is to be a majority in favour of allowing the appeal, but a difference between the members of that majority as to the consequential orders, I would join with the orders proposed by Stanley J remitting the matter for further consideration by Judge Tilmouth, rather than an order remitting the matter to the Registrar.
Firearms Act 1977 ss 6(1), 6(2), 11, 13, 17, 18, 20, 20(1)(a), 20(1)(b), 20(1a), 25, 26B, 26B(1), 26B(1)(d), 26B(2), 26B(6), 26B(7), 26B(8), 26B(8)(a), 26C, 26C(1), 26C(1)(a), 26C(1)(b), 26C(1)(c), 26C(2), 26C(4), 36A; District Court Act 1991 ss 42B, 42B(1), 42B(2), 42E, 42E(1), 42E(2), 42E(3), 42F, 42G, 42G(2), 43, 43(3); Supreme Court Act 1935 s 17; Supreme Court Civil Rules 2006 rr 286, 286(2), 294(2); Federal Court of Australia Act 1976 (Cth) ss 28, 28(1)(f); Firearms Regulations 2008 (SA); Motor Vehicles Act 1959 s 98ZA(1), referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; R v Berchet (1690) 1 Show KB 106, 89 ER 480; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Commonwealth v Baume (1905) 2 CLR 405; Commonwealth v Verwayen (1990) 170 CLR 394; Conway v The Queen (2002) 209 CLR 203; Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; Giumelli v Giumelli (1999) 196 CLR 101; Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 479; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Registrar of Motor Vehicles v Thiele [2012] SASCFC 51; Roebuck v Mungovin [1994] 2 AC 224; Stokes v The Queen (1960) 105 CLR 279; Tabcorp Holdings Ltd v Victoria [2016] HCA 4; Windoval Pty Ltd v Donnelly (2014) 226 FCR 89; Zheng v Cai (2009) 239 CLR 446, discussed.
Allen v Chadwick (2015) 90 ALJR 138; Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; Coulton v Holcombe (1986) 162 CLR 1; Craig v South Australia (1995) 184 CLR 163; Crofton v WorkCover Corporation (SA) (2002) 82 SASR 47; Davies v Registrar of Firearms [2005] SASC 149; R v Drummond (No 2) [2015] SASCFC 82; House v The King (1935) 55 CLR 499; Hughes and Vale Pty Ltd v New South Wales (1955) 93 CLR 127; Jaworski v Police [2009] SASC 284; Johnson v Registrar of Firearms (2001) 79 SASR 353; R v Keogh (No 2) (2014) 121 SASR 307; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; L, G v Minister for Families and Communities (2012) 113 SASR 152; Maritime Electric Co Ltd v General Dairies Ltd [1937] AC 610; Mayer v Marchant (1973) 5 SASR 567; Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; Moses v Parker [1896] AC 245; Norcock v Bowey [1966] SASR 250; Offe v Police (2002) 84 SASR 1; Pirrotta v Citibank Ltd (1998) 72 SASR 259; Pitchers v Police [2012] SASC 171; Pollitt v Police [2007] SASC 382; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; Registrar of Firearms v Gitsham (2002) 84 SASR 72; Registrar of Firearms v Marksman Training Systems Pty Ltd [2015] SASCFC 59; Registrar of the Veterinary Surgeons Board of South Australia v Mooney [2009] SADC 62; Seers v Exhibition Centre Pty Ltd (2009) 232 FLR 415; Simpson Ltd v Arcipreste (1989) 53 SASR 9; Snell v Ryan [1951] SASR 59; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; Twist v Randwick Municipal Council (1976) 136 CLR 106; University of Woollongong v Metwally (No 2) (1985) 59 ALJR 481; Vestris v Cashman (1998) 72 SASR 449; Water Board v Moustakas (1988) 180 CLR 491; Winen v District Court of South Australia [2003] SASC 440, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"original decision-maker", "decision-maker", "justice of the case", "cogent reasons", "further evidence", "due weight", "fit and proper person"
REGISTRAR OF FIREARMS v MARKSMAN TRAINING SYSTEMS PTY LTD (No 2)
[2016] SASCFC 72Full Court: Gray, Peek and Stanley JJ
GRAY J.
I would allow the appeal and set aside the orders made in the District Court. I agree with the further orders proposed by Stanley J. I agree with His Honour’s reasons and do not wish to add to those reasons.
PEEK J.
This is an appeal by the Registrar of Firearms (the Registrar) against orders made by a District Court Judge allowing an appeal against the decision of the delegate of the Registrar (the Delegate) to cancel the firearms licence and the firearms dealer’s licence of Marksman Training Systems Pty Ltd (Marksman).
This judgment is structured as follows:
·Part A: Background and the course of events
·Part B: Proposed ground 8: Construction of the legislation
·Part C: Marksman’s further contentions that proposed ground 8 must be rejected - in overview
·Part D: Marksman’s first contention - the Judge did not fail to examine the Firearms Review Committee’s reasons
·Part E: Marksman’s second contention – both the Delegate and the Firearms Review Committee failed properly to consider the possibility of conditional licences.
·Part F: Marksman’s third contention - The Firearms Review Committee abnegated its responsibility
·Part G: Marksman’s fourth contention - Waiver and estoppel
·Part H: The Registrar’s other grounds of appeal
·Part I: Appropriate orders
PART A: BACKGROUND AND THE COURSE OF EVENTS
One may commence with the following summary by his Honour Judge Tilmouth (hereafter the Judge or the District Court Judge):[1]
[2] The course of these proceedings and the events giving rise to them has a lengthy history. The underlying facts, for the most part, date back to late 2011. The appeals were launched in mid-May 2013 and first heard on 5 and 6 September 2013, and then adjourned to enable the respondent to present his case. To outward appearances the relationship between the parties is characterised, by suspicion and mistrust on both sides, as will become apparent. There are numerous grounds of appeal on procedural and substantive issues. The facts are complex and the history of numerous firearms involved, is difficult to trace. What follows during the course of this judgment is an endeavour to distil some 1,500 pages of dense materials into the salient points.
Brief background
[3] Marksman operates a family owned and operated business as a firearms dealer from premises on Franklin Street, within the Adelaide CBD. It is also a recognised commercial firing range operator, housed adjacent to but within the same property as the dealership and from which it conducts regular firearms activities. The court was told by the respondent that it is the only recognised commercial range in this State. The dealership contains an armoury or strong room and associated security infrastructure, designed for the secure storage of firearms.
[4] A principal Director of Marksman, Mr Andrew Marks, was enlisted in the Australian Army between 1968 and 1988, retiring at the honorary rank of Major, during which he undertook various kinds of extensive firearms training. Since that time and up to 1994, he was involved in aviation, security, counter terrorism, firearms and security training. Such facts, and no doubt others, are relevant to the fitness of Marksman to hold the licences.
[5] The relationship between the two licences is basically as follows. The operator of a firearms range storing firearms on the premises for use either by the operator or by others, must hold a firearms licence authorising the possession and use of firearms, pursuant to s 11 of the Firearms Act 1977 (SA). An approved range may be operated by a recognised commercial range operator, either holding, or without holding, a firearms licence. When services are provided by the range operator to licensed firearms holders bringing their own firearms to the range, then no firearms licence is required. This occurs at the subject premises with respect to members of the Adelaide Indoor Firearms Association and the Sporting Shooters Association of Australia for instance, who regularly use and shoot at the range. However, when the commercial range operator provides firearms to unlicensed members of the public for use at the range, it must hold a firearms licence. Marksman offers both kinds of services from the Franklin Street premises.
[6] It has held the dealer’s licence since mid-1994, and the firearms licence since early 2008. The businesses employ nine full-time staff. It conducted what was described by counsel as over 2,000 transactions per year. The permanent cancellation of these licences will have a significant financial effect on it and may lead to closure of the businesses. Indeed the Delegate accepted the licences were ‘essential to the livelihood of Marksman’s directors and employees’. Since the decisions to cancel were made, Marksman has continued to trade on conditions imposed or agreed between it and the Registrar, pending the outcome of the appeals, reflected in an order of the court made by consent, dated 4 June 2013. That order was made on an interim basis pending resolution of the appeal, pursuant to s 42D(2) and (3) of the District Court Act 1991 (SA).
[7] An audit of the Franklin Street premises was conducted in June 2013 pursuant to those orders. Marksman itself voluntarily invited SAPOL to conduct audits in 2009 and in 2011. These exposed a number of anomalies between the records of the dealership and those maintained by the Registrar. As a consequence, the South Australian Police (SAPOL) wrote to Marksman on 4 January 2011 concerning allegedly missing firearms and conducted itself an examination of further firearms produced by Marksman on 19 January 2012.
[8] An internal audit of handguns was undertaken between 23 and 25 April 2012, unbeknown to SAPOL at the time. A spread sheet of same was delivered to them in late August of that year. After examining it, SAPOL considered 26 firearms registered to Marksman were not then accounted for. This state of affairs ultimately led to ‘show cause’ letters issued to Marksman on 3 December 2012 and 1 March 2013, to which it responded on 24 January and 18 March 2013. These exchanges ground the principal source of the materials giving rise to the cancellations, the focus being on unaccounted for firearms and record keeping short-comings and inadequacies, amongst others.
[1] Marksman Training Systems Pty Ltd v The Registrar of Firearms [2014] SADC 150 (judgment 1).
The power to cancel licences or impose conditions
The Registrar’s power of cancellation (relevant to the present case) appears in s 20 of the Firearms Act 1977 (“the Act”) as follows:
20—Cancellation, variation and suspension of licence
(1) If the Registrar is satisfied that the holder of a licence—
...
(a) has contravened or failed to comply with a provision of this Act or a condition of the licence; or
(b) is, for any reason, not a fit and proper person to hold the licence; ...
...
the Registrar may, by notice in writing served personally or by registered post on the holder of the licence, cancel the licence.
(1a) Where the Registrar is satisfied that—
(a) it would be contrary to the public interest to permit the holder of a firearms licence to continue to possess and use firearms; …
...
the Registrar may, after giving the holder of the licence at least 14 days written notice—
(c) where paragraph (a) applies—cancel the licence; …
The Registrar’s power to impose conditions in a dealer’s licence (relevantly to the present case) appears in s 17 of the Act as follows:
17—Dealer’s licence
…
(4) A dealer’s licence is subject to—
(a) a condition that the licensee must not deal in prescribed firearms; and
(b) any conditions prescribed by the regulations; and
(c) any conditions imposed by the Registrar.
(4a)The Registrar may impose licence conditions pursuant to subsection (4) on the grant or renewal of the licence or at any time during the term of the licence.
The Registrar’s power of imposition of conditions in a Firearm’s licence (relevantly to the present case) appears in s 13 of the Act as follows:
13—Provisions relating to firearms licences
…
(4) Subject to this section, a firearms licence is subject to—
(a) any licence conditions prescribed by the regulations; and
(b) any licence conditions imposed by the Registrar.
(5)The Registrar may impose licence conditions pursuant to subsection (4) on the grant or renewal of the licence or at any time during the term of the licence.
The Delegate’s letter of decision to cancel licences of 8 April 2013
The Delegate’s letter to Marksman of 8 April 2013 announced his decision to cancel Marksman’s licences. The Delegate cancelled the dealer’s licence pursuant to ss 20(1)(a) and 20(1)(b) and cancelled the firearms licence pursuant to ss 20(1)(a), 20(1)(b) and 20(1a) of the Act. The Delegate stated as follows:
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 315599D
61.In accordance with section 20(1)(a) I am satisfied that Marksman has contravened or failed to comply with provision 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.
The Delegate largely rejected or ignored the various submissions of Marksman, although making some corrections in the light of them. He concluded that ten firearms were unaccounted for (all of which are suggested by Marksman to have been stolen by a then employee, Mr C). Although the letter itself is not particularly long (11 pages), it is difficult to follow in that it deals with various matters of detail in 11 separate appendices (a further 24 pages).
The Firearms Review Committee process
On 9 April 2013, Marksman made an application pursuant to s 26B(1)(d) of the Act for the Registrar to refer the cancellation decision to the Firearms Review Committee (“the Committee”). That was done and the decision of the Registrar was stayed pending such review. The review hearing was set for 1 May 2013 at 2:15pm. On the review hearing, Marksman was represented by counsel, as was the Registrar. At the conclusion of proceedings that afternoon, the Committee reserved its decision and adjourned.
The “reasons” of the Firearms Review Committee
On 15 May 2013, the Committee affirmed the decision pursuant to s 26B(8)(a) of the Act. It forwarded a document to the solicitors for Marksman the substantive content of which was as follows:[2]
[2] The numbering of the dot points has been added for convenience of reference.
Your client’s application for a review of the Delegate of the Registrar of Firearms decision to cancel Firearms Licence Numbers 288511L [sic] and 315699D was considered by the Firearms Review Committee on 1st May 2013.
After due consideration the Committee have agreed to AFFIRM the decision of the Delegate of the Registrar of Firearms to cancel your client’s firearms licences due to the following reasons.
It is considered that the FRC should not make judgement on the considerable criticisms and allegations levelled at the Delegate of the Registrar of Firearms by the Counsel and Marksman. Those issues are matters that should be left for the District Court – if it comes to that.
· [1] However, the committee had a responsibility to consider the appropriateness of the Delegate’s decision to cancel the Marksmans’ Dealer’s Licence #280511L & Firearms Licence #315699D.
· [2] It is evident that in the more recent audits that there were many firearms (handguns and long arms) that were unaccounted for but subsequently located following considerable toing and froing between the Police and the Marksman’s Dealership where firearms were found with their owners locally and interstate, in the shooting range and (unknown to the Committee) other places. In the end 10 firearms (9 Semi auto handguns & 1 rifle) were still outstanding. Some found by the Police in the hands of Criminal elements and, it is understood that enquiries are still under way in that regard.
· [3] The Committee can only speculate but commonsense [sic] indicates that, with adherence to the legislation, firearms would be easy to check (Mini Audit) on a daily basis and the likelihood of mistakes, thefts etc would be identified quickly. Furthermore, the likelihood of mistakes/errors in Record keeping would be identified and corrected thus resulting in accurate details being sent to the Police at the end of every month. Thus reducing error rate on the data base.
· [4] Marksman claims that an ex-employee (Mr [C]) was responsible for the 10 firearms and this may be so but the Committee are not aware of any evidence except a statement (the detail of which is not known by the Committee) from a female employee who claims that she knew of [Mr C] stealing one handgun.
· [5] It is important to note that Mr Andrew Marks’ response to one of the Committee about the [Mr C] involvement was “There is nothing to say he did or did’nt [sic], we just do not know”.
· [6] The Firearms Act and Regulations have made it quite clear about the responsibility of Firearms Dealers maintaining movement by records of firearms and indemnity records of Firearms in their possession by way of attaching “Tags” to all Firearms in their possession and scrupulously recording the details of people and firearms in their In & Out Record Books. These requirements are very simple and easy to maintain.
· [7] Marksman’s Counsel suggested that the incidence of missing/misplaced firearms should be considered against the more than 2000 firearms transactions in 12 months. In fact this translates to approximately 7 transactions per day. Hardly large numbers, particularly if the Dealership attends to its Legislated simple requirements for Identifying & Recording details of Firearms. In the Legislation the term MUST is used regularly and clearly emphasizes the Parliament’s expectation of the Dealer and the importance of efforts to avoid firearms reaching the hands of the wrong people in the community.
· [8] It is felt, by the Committee, that the audit related difficulties experienced by marksman people and Police in locating firearms can only be attributed to the Dealer not meeting the legislated requirements over time. Not just a short term aberration or momentary lapse. One can only wonder the level of importance that Andrew MARKS gave to the legislated imperative to maintain records and Tagging of all Firearms even though some may have only moved a few metres from the Range.
· [9] There is also the failure to report suspected stolen or missing firearms earlier, deciding instead to conduct their own investigations of sorts. This resulted in important records NOT being placed on the Police Data Base in a timely manner and reducing the chances of locating the firearms.
· [10] It is also considered that a causal factor was the blurring of the lines between the firearms range and the dealership and this was brought more strongly to the forefront with comments by Mr Marks at the FRC meeting that he had been trying to get a single licence to incorporate the firing range AND the Firearms Dealership. It was evident that Marksman did not maintain a distinct separation between the Range business and the Firearms Dealership business. Some indicators were the co-location of Range firearms and Dealer firearms. As the Dealer, there was an imperative [sic: sentence incomplete and without a full stop][3]
· [11] There was considerable discussion about the introduction of an electronic inventory system however the talk had been over a couple of years without much action. A Barcode system would not be the complete answer to the Marksman problems without Mr Andrew Marks taking a more hands on approach with constant and scrupulous adherence to the legislated requirement. (Emphasis added)
[3] There is no way of telling what the last incomplete sentence may have been and whether further sentences may have followed; perhaps it was seen as not being important enough to be checked before being sent to Marksman.
For the moment, I simply note Marksman’s important contention that in the emboldened passage above, the Committee refused to consider Marksman’s explicit complaints concerning procedural fairness in the context of the behaviour of the Delegate and SAPOL officers attached to Firearms Branch; and that this amounted to an abnegation of its statutory responsibility which was, in itself, a “cogent reason for the Judge to depart from the decision” appealed from. I return later to consider in some detail both the “dot points” and that contention.
Marksman’s appeal to the District Court
On 16 May 2013, Marksman appealed to the Administrative and Disciplinary Division of the District Court, pursuant to s 26C(1)(a) of the Firearms Act. Consent interim orders were made in the District Court on 4 June 2013 allowing Marksman to continue to trade on certain conditions pending resolution of the appeal.[4]
[4] Later, in June 2013, a further audit was conducted in accordance with those orders.
Marksman’s grounds of appeal appear in discussion below at [112] in the form of a chart. The appeal first came on for hearing before the Judge on 5 and 6 September 2013, followed by a number of other hearing days through December 2013 and February, June and July 2014. The Judge was eventually to deliver three separate judgments in the matter,[5] a process which his Honour described thus on the occasion of delivery of the third judgment (when he gave reasons for making ancillary and consequential orders concerning Marksman’s licence conditions, costs of the appeal, and a suppression order):
[1] 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 [the first] judgment on 29 August 2014, making numerous primary findings of fact and resolving a number of issues of statutory construction. 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. These reasons [the third judgment on 20 February 2015] deal with those issues and finalises the appeals.
(Emphasis added; citations omitted)
[5] Marksman Training Systems Pty Ltd v The Registrar of Firearms [2014] SADC 150 (judgment 1); Marksman Training Systems Pty Ltd v The Registrar of Firearms (No 2) [2015] SADC 5 (judgment 2); Marksman Training Systems Pty Ltd v The Registrar of Firearms (No 3) [2015] SADC 16 (judgment 3).
The Registrar’s appeal to the Supreme Court
On 13 March 2015, the Registrar of Firearms filed a notice of appeal against the orders made by the District Court Judge to the Full Court of the Supreme Court. The grounds were as of right on matters of law but required permission to appeal on factual matters. Permission to appeal on some, but not all, of those factual matters was granted on 27 April 2015.[6]
[6] Registrar of Firearms v Marksman Training Systems Pty Ltd [2015] SASCFC 59.
The grounds of appeal to the Supreme Court
The grounds of appeal eventually sought to be relied upon were as follows:[7]
[7] Grounds 1 and 6 were abandoned on the first and second days of the appeal hearing.
Ground 2
2.The learned Judge erred in law in that he held that s 36A of the Firearms Act 1977 (“the Act”) was relevant to the decision-maker’s decisions to administratively cancel the respondent’s licences (Judgment No 1 at [62, 64]). His Honour erred in that he:
(i) wrongly required the decision-maker to consider the general defence to a criminal charge provided for in s 36A of the Act before the decision-maker was entitled to conclude that the respondent had “contravened or failed to comply” with provisions of the Act (Judgment No 1 at [62-63, 122, 145] and Judgment No 2 at [18, 27]); and
(ii) wrongly conflated the requirements for determining criminal guilt of a criminal offence under the Act with the role of a regulator and administrative decision maker exercising licence disciplinary functions and powers.
His Honour should have found that the decision-maker:
(iii) was not required to consider s 36A of the Act in making his decisions; and
(iv) was entitled to conclude that the respondent had contravened or failed to comply with
(a)particular provisions of the Act and Firearms Regulations 2008 (the Regulations) for the purposes of s 20(1)(a) of the Act; and
(b)the firearms licensing regime generally as set up by the Act and the Regulations for the purposes of determining fitness and propriety to hold a licence under s 20(1)(b) of the Act and the public interest as to whether a licence ought be cancelled under s 20(1a) of the Act.
Ground 3
3.The learned Judge erred in law and in fact with respect to the determination of the respondent’s fitness and propriety under s 20(1)(b) of the Act to hold a licence.
3A. His Honour erred in law in that he wrongly characterised the process:
(i) as one of weighing the competing interests or a balancing exercise (Judgment No 1 at [172] and Judgment No 2 at [52]) as opposed to a threshold requirement; and
(ii) as requiring the decision-maker to have regard to the apparent positive reputation, honesty and integrity of Mr Andrew Marks pursuant to s 5(13) of the Act (Judgment No 1 at [171-172] and Judgment No 2 at [51]); and
(iii) impermissibly restrictively by only permitting ‘proven breaches’ to be available to the decision-maker (Judgment No 1 at [170]) flowing from his Honour’s erroneous approach to the particularity of reasons (Appeal Ground 1), the operation of s 36A of the Act (Appeal Ground 2) and the application of the act of a stranger defence (Appeal Ground 5).
3B. His Honour erred in fact in determining the question of fitness and propriety he:
(iv) placed insufficient weight on:
(a)the twelve firearms lost or stolen from the respondent’s custody and premises which remain unaccounted for; and
(b)the three firearms belonging to the respondent located by Police in the possession of known criminals; and
(c)the respondent’s failure to report any of the firearms referred to in (a) and (b) above as missing s 25 of the Act, regs 21(1)(e) and 22(1)(d) of the regulations); and
(d)the respondent’s obligation to have adequate and sufficiently robust security and auditing systems and processes to adequately protect against the risk of theft or loss of firearms in its custody on its premises as well as enabling the regulator to track licensed firearms; and
(v) placed too much weight on:
(a)the reputation, honesty and integrity of the respondent and Mr Andrew Marks; and
(b)the respondent’s recent introduction of an electronic stock management database (Epitome); and
(c) the respondent’s lack of previous negative disciplinary history.
Ground 4
4.The learned Judge erred in law and in fact in determining whether under s 20(1a) it would be contrary to the public interest to permit the respondent to continue to possess and use firearms. His Honour erred in that he wrongly:
(i) concluded, against the weight of the evidence, that the respondent’s systems and processes for managing and securing firearms mean that improper conduct is not likely to occur in the future and the public should have confidence in the respondent (Judgment No 1 at [119, 162-163] and Judgment No 2 at [11, 29, 45-46, 52, 54]); and
(ii) distinguished applicable case law concerning the public interest in firearms licensing (Hill v Commissioner of Police [2002] NSWADT 281, Sydney Pistol Club v Commissioner of Police [2012] NSWADT 121 and Davies v Registrar of Firearms [2005] SASC 149) on the incorrect basis that in the instant case there was an adequate explanation to account for missing firearms (Judgment No 2 at [53]); and
(iii) did not apply relevant and applicable case law concerning the public interest in firearms licensing (Morabito v Commissioner of Police (NSW), [2006] NSWADT 181, Martin v Commissioner of Police (NSW) [2010] NSWADT 276, Hill v Commissioner of Police (NSW) [2002] NSWADT 218, and Lynch v Commissioner of Police (NSW) [2006] NSWADTAP 43)
(iv) considered the matters set out in appeal ground 3B herein concerning weight which are repeated.
Ground 5
5.The learned Judge erred in law in that he wrongly considered the criminal law concept of ‘act of a stranger’ to be relevant to the decision-maker’s decisions (Judgment No 2 at [26]). In reaching this conclusion his Honour wrongly:
(i) did not attribute the loss or theft of 15 firearms (12 still missing in appeal ground (3B(iv)(a)) plus 3 found with known criminals in appeal ground (3B(iv)(b) from the respondent’s custody and premises to the respondent (Judgment No 1 at [121]; Judgment No 2 at [25-26, 52-53]; or
(ii) in the alternative to (i) did not hold the respondent responsible for the loss or theft of 15 firearms from its custody and premises by other persons unknown; or
(iii) in the further alternative to (i) and (ii) placed insufficient weight on the finding that the respondents omission was limited to a systems failure to detect the loss or theft of 15 firearms from its custody and premises (Judgment No 2 at [25]).
His Honour should have found that:
(iv) the respondent’s firearms in its custody and on its premises were solely the respondent’s responsibility pursuant to the licensing scheme at all times; and
(v) the loss or theft of 12 firearms from the respondent’s custody and premises between February 2009 and November 2011 and a further three firearms between November 2011 and June 2013 undetected by the respondent is relevant to the protection of the public as the primary purpose of disciplinary proceedings, the respondent’s fitness and propriety to be licensed (s 20(1)(b) of the Act) and the whether it is in the public interest for the respondent to be licensed (s 20(1a) of the Act).
Ground 7
7.The learned Judge erred in law and in fact in that he found that it was necessary in the interests of justice to award costs to the respondent (Section 42G of the District Court Act 1991) (Judgment No 3 at [14-28]). His Honour erred in that he:
(i) required of the decision-maker a level of particularity with respect to the show cause process that is not required of an administrative decision-making process and is more akin to a judicial determination (Judgment No 3 at [20]); and
(ii) wrongly characterised the decision-maker’s reasons for decision as:
(a) not clearly exposing the precise basis of the decision-making; and
(b)making it practically impossible for the respondent and the Court to assess the merits of the matter; and
(c) placing the respondent at an unacceptable degree of disadvantage; and
(d) pre-occupying excessive court time (Judgment No 3 at [24]).
(iii) wrongly relied on the conduct of the 1 November 2011, 24 November 2011 and 10 June 2013 audits which did not occur as part of the decision-making process (Judgment No 3 at [27]).
PART B: GROUND 8 – CONSTRUCTION OF THE LEGISLATION
Up until the day that this appeal was scheduled to be heard,[8] it was unquestioned that Marksman’s appeal to the District Court had correctly proceeded on the basis that the decision there appealed against was that of the Delegate of the Registrar of Firearms (the Delegate). Written submissions from both parties were submitted and considered by this Court on that basis.
[8] 14 September 2015 at 2:15pm (with the following day also set aside).
However, on the morning of 14 September, a document entitled “Amended Notice of Appeal” was supplied to this Court and, at the commencement of the hearing, permission was sought by senior counsel for the Registrar to add a proposed ground 8 of appeal as follows: The learned Judge erred in law in that he did not examine the decision of the original decision-maker in accordance with s 42E(1) of the District Court Act 1991.
Counsel for the Registrar made oral submissions in relation to proposed ground 8, as to which there was then no written outline, and commenced thus:
The only references his Honour makes to the decision of the Firearms Review Committee is at appeal book p 384, para 10 of that first judgment purely to record there the decisional history of the matter. The second reference was at appeal book p 418, para 109 recording or referring to a written submission made to the Firearms Review Committee. In his Honour’s second judgment, the first one dealing with factual disputes in the main, his Honour’s second judgment commencing at p 448, there is no reference to the Firearms Review Committee nor indeed in his third judgment which commences at p 470 and deals with costs. There is no reference. Accordingly under rule 294(2) I seek leave to amend our notice of appeal to include ground 8 as drafted. I need permission for that. In my submission to refuse permission would be to hear the appeal on a false basis. Your Honours would entertain arguments as to what the learned judge did or did not conclude on the basis of only a half if I can put it that way exercise of the jurisdiction that he was bound, it says, must to exercise. Your Honours would then compound the error.
Counsel for the Registrar took the Court to factual matters and to the dot point “reasons” of the Committee which appear above. He continued submissions as to proposed ground 8 to just prior to the usual time for adjournment, when he made a very brief reference to grounds 3 and 5 of appeal, and then stated that he relied on the written outline in relation to grounds 2, 3, 4, 5 and 7 (ground 1 having been abandoned) and that junior counsel would address ground 6 on the following day.
On resumption on the morning of 15 September, the Court indicated that it would proceed to hear all oral argument for the appellant as to all other grounds relied upon and would then adjourn to a further new hearing date and that, in the interim, the Registrar would furnish full submissions in writing on proposed ground 8 and, after their supply, Marksman would do so as well; and that on the new hearing date, the Court would hear all oral argument for the respondent and any reply for the appellant.
Counsel for the Registrar then addressed the Court briefly, including to answer some questions he had taken on notice from the previous day. He indicated that ground 6 was now to be abandoned, and put no further oral submissions on the other live grounds 2, 3, 4, 5 and 7, relying on his written outline. The Court then adjourned until the new date for hearing, fixed as 23 October 2015.
On resumption on 23 October 2015 (the further ordered written material from both parties having been duly received by the Court in the interim), counsel for Marksman put her submissions on all grounds of appeal, after which counsel for the Registrar made a short reply. Judgment was reserved (including on the question of permission to add proposed ground 8 of appeal).
The legislation governing the present right of appeal to the District Court
The relevant appellate jurisdiction is conferred on the District Court by s 26C of the Firearms Act 1977 and is also regulated by Part 6 Division 2 subdivision 2 of the District Court Act 1991, particularly ss 42B, 42E and 42F in this case. However, the general District Court provisions remain subject to the particular provisions of the Firearms Act.[9]
[9] Section 42B(1), District Court Act 1991.
The relevant provisions of Part 4A of the Firearms Act 1977
The relevant provisions of Part 4A of the Act are as follows:
26B—Review by Firearms Review Committee
(1) A person aggrieved by a decision of the Registrar—
…
(d) to suspend or cancel a licence or permit; or
…
may apply to the Registrar for the Registrar to refer the decision to the Firearms Review Committee for review of the decision.
(2) If the Registrar did not give reasons in writing at the time of making the decision, the Registrar must do so on request made within 28 days of the making of the decision.
(3) If a decision was made because of information that is classified by the Registrar as criminal intelligence, the only reason required to be given is that the decision was made on public interest grounds.
(4) An application under this section must be made—
(a) within 28 days of the making of the decision; or
(b)if a request for reasons in writing is made under subsection (2)—within 28 days after receipt of the reasons in writing.
(5) The Registrar may, in the Registrar's discretion, extend the time for making an application under this section even if the time for making the application has ended.
(6) The making of an application under this section does not affect the operation of the decision to which the application relates or prevent the taking of action to implement the decision.
(7) However, on an application under this section, the Registrar may, in the Registrar's discretion, stay or vary the decision pending the decision of the committee on the review.
(8) On an application under this section, the Registrar must refer the decision to the committee, and the committee may, on the review—
(a) affirm the decision; or
(b)remit matters to the Registrar for consideration or further consideration.
26C—Right of appeal to District Court
(1) A person aggrieved by—
(a)a decision of the Registrar that has been affirmed by the Firearms Review Committee; or
(b)if a matter is remitted to the Registrar by the Firearms Review Committee, a decision of the Registrar following remission of the matter; or
(c) a decision of the Registrar to issue a firearms prohibition order,
may appeal against the decision to the District Court.
(2) If the committee or the Registrar has not given the person reasons in writing for making the decision appealed against, the committee or Registrar must do so on request made within 28 days after the person received notice of the decision.
(3) If a decision was made because of information that is classified by the Registrar as criminal intelligence, the only reason required to be given is that the decision was made on public interest grounds.
(4) An appeal under this section must be made—
(a)within 28 days after the person received notice of the decision appealed against; or
(b)if a request for reasons in writing is made under subsection (2)—within 28 days after the person received the reasons in writing.
The relevant provisions of the District Court Act 1991
The relevant provisions of the District Court Act 1991 are as follows:
42B—Application of Subdivision and interpretation
(1) This Subdivision applies in relation to the appellate jurisdiction conferred on the Court by another Act (the special Act) subject to the provisions of the special Act.
(2) In this Subdivision—
decision includes an act (such as the giving or making of a notice, direction, determination, requirement or order) and a failure or refusal to make a decision or act;
original decision-maker, in relation to an appeal, means the person or body whose decision is appealed against, and includes, if that person or body made the decision on an appeal against, or review of, a decision made by some other person or body, that other person or body.
…
42E—Conduct of appeal
(1) The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
42F—Decision on appeal
The Court may, on an appeal—
(a) affirm the decision appealed against;
(b) rescind the decision and substitute a decision that the Court considers appropriate;
(c) remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
The Registrar’s primary contention as to construction of the legislation
As I understand it, the Registrar’s primary contention as to construction of the legislation is that:
·on the correct construction of the relevant legislation, the right of appeal is against the affirmation by the Committee of the decision of the Registrar (rather than the decision of the Registrar itself as had been thought by all counsel and the Judge below); and
·the Registrar and Committee are jointly the “original decision-maker” within the definition of that term in s 42B(2) of the District Court Act; and
·the Judge erred in law in that he did not examine the reasons of the original decision-maker (that is to say, the reasons of both the Registrar and the Committee) as he was required to do by s 42E(1) of the District Court Act; and
·the decision and orders of the Judge must ipso facto be set aside because, it is said, jurisdictional error has occurred.
The Registrar placed particular reliance upon s 26C(2) of the Act, which applies to both the Registrar and to the Committee, and requires the decision-maker to provide written reasons “for making the decision appealed against”. It was submitted that this language predicates that there must exist the possibility of an appeal against each of those entities and that, since ss 26C(1)(b) and 26C(1)(c) plainly refer only to the Registrar, then the right of appeal created in 26C(1)(a) must refer to an appeal against the decision of the Committee. It was submitted that only through this construction can s 26C(2) be given work to do; reliance was placed upon decisions such as Project Blue Sky Inc v Australian Broadcasting Authority, where the plurality of the High Court stated:[10]
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”. (Emphasis added; citations omitted)
Consideration of the Registrar’s primary contention as to construction
[10] (1998) 194 CLR 355, 381-382 (McHugh, Gummow, Kirby and Hayne JJ).
Section 26C(1) confers a right of appeal to the District Court which is delineated by reference to s 26C(1)(a), s 26C(1)(b) and s 26C(1)(c). In the cases of s 26C(1)(b) and s 26C(1)(c), the appellant must be a person who is simply aggrieved (in the sense of adversely affected) by a decision of the Registrar. However, in the case of s 26C(1)(a), the appellant must be a person who is aggrieved by a decision of the Registrar and who has also made a positive attempt to mitigate that grievance by making an application under s 26B, but has been unsuccessful (in that the Committee has affirmed the decision of the Registrar).
The meaning of s 26C(1) of the Firearms Act is not ambiguous. As applied to the present circumstances, its ordinary meaning can only be that “A person aggrieved by a decision of the Registrar that has been affirmed by the Firearms Review Committee may appeal against the decision of the Registrar to the District Court”.
I reject the Registrar’s argument as to the application of the principle in Project Blue Sky here. Section 26C(2) appears in the context of provisions of the Act that afford redress for grievances arising from decisions of the Registrar of Firearms and is addressed to that same matter. The work, or function, of s 26C(2) is to expressly confirm that an aggrieved person may, if he or she requests, have reasons from either, or both, of the Registrar and the Committee and to positively require each of the Registrar and the Committee to comply with such a request within 28 days of it being made. The meaning of s 26C(2) is that, in the case of the Registrar, requested reasons are to relate to the Registrar’s decision; and in the case of the Committee, requested reasons are to relate to the Committee’s decision to affirm the decision of the Registrar.
Thus the meaning is exactly the same as if it had been expressed in a more wordy fashion thus:
(2)If the Registrar has not given the person reasons in writing for making the decision appealed against, the Registrar must do so on request made within 28 days after the person received notice of the decision.
(2A)If the committee has not given the person reasons in writing for the decision to affirm the decision of the Registrar or to remit the matter to the Registrar, the committee must do so on request made within 28 days after the person received notice of the decision.
Unfortunately, Parliament chose to compress the words and, not for the first time, thereby left open the possibility of a technical grammatical attack on what would otherwise have been plain beyond peradventure. However, while there may be a perceived clumsiness in the drafting, the meaning is as stated above.
The Registrar also relies upon ss 42B(2) and 42E[11] of the District Court Act 1991 and submits that the Committee is thereby invested with a status of being a “joint original decision-maker” which, the argument continues, means that it is an “original decision-maker” for the purpose of the obligation upon the Judge to consider the reasons of the original decision-maker. I also reject this argument, and for several reasons.
[11](1) The court must on appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
One reason is that Parliament specifically allocated to the Registrar the role of decision-maker, and to the District Court the role of primary Court of appeal from such decisions. The role allocated to the Committee was akin to a filtering process, with a full District Court appeal being avoided if the Registrar, in the light of comments by the Committee, were to be prepared to alter or mitigate the initial decision and the prospective appellant were to be satisfied with that result. But it is the position that the Committee is given only limited powers; it can only affirm the decision of the Registrar or remit the decision to the Registrar for further consideration, after which remittal the Registrar is free to make exactly the same decision again.[12]
[12] Section 26B(8), Firearms Act 1977.
Further, as explained above, there is no obligation upon the Committee to give reasons for affirming a decision of the Registrar unless specifically requested to do so; Parliament was content to leave the matter of provision of reasons on the happenstance basis of whether the aggrieved person might choose to request them.
All in all, this pattern of legislation is quite inconsistent with a legislative intent to invest the Committee with the status of a “joint decision-maker”.
The definition of original decision-maker in s 42B(2), District Court Act 1991
Another reason for rejecting the Registrar’s primary contention is that the definition of original decision-maker in s 42B(2), District Court Act 1991 itself militates against acceptance of the Registrar’s argument. However, before considering that provision, one should first construe s 26C of the Firearms Act according to its terms since, as between the particular appeal provisions in the Firearms Act 1977 and the general provisions in the District Court Act, the former are paramount.[13]
[13] Section 42B(1), District Court Act 1991.
After having concluded that the correct construction of s 26C of the Act is that the subject of the appeal is the Registrar’s decision, for the reasons stated above, one may proceed to consider the definition of original decision-maker in s 42B(2) appears as follows”:[14]
original decision-maker, in relation to an appeal, means the person or body whose decision is appealed against, and includes, if that person or body made the decision on an appeal against, or review of, a decision made by some other person or body, that other person or body.
[14] Section 42B(2), District Court Act 1991.
I consider that the words “original decision-maker, in relation to an appeal, means the person or body whose decision is appealed against,” can only mean that the “original decision-maker” is the Registrar.[15]
[15] The further proviso immediately following (“and includes, if that person or body made the decision on an appeal against, or review of, a decision made by some other person or body, that other person or body”) is clearly not engaged because the “original decision-maker” (the Registrar) clearly did not make “the decision on an appeal against, or review of, a decision made by some other person or body”.
I would therefore reject the Registrar’s primary contention that the decision to be appealed against was that of the Committee rather than the Registrar.
The legislative history of s 26C(1)(a) Firearms Act
I note the further argument of Marksman based on legislative history. The original wording of s 26C(1)(a) specifically evinced an intention that the appeal lie against a decision of “the Firearms Review Committee to affirm a decision of the Registrar”, and that these words were amended after the following exchange between the then Attorney-General and the then shadow Attorney-General:[16]
The Hon MJ ATKINSON: ... Certainly proposed section 26C(1)(a) provides that a person aggrieved by a decision of the Firearms Review Committee to affirm a decision of the registrar may appeal against the decision. This amendment clarifies that the aggrieved person is appealing against the decision of the registrar, who makes the substantive decision about the licence, and not the committee that affirms the registrar’s decision.
MS REDMOND: In light of that fantastic explanation, I am happy to support that amendment and endorse its fast passage.
[16] South Australia, Parliamentary Debates, House of Assembly, 3 June 2008, p 3542.
Marksman submits that the original s 26C(1)(a) would have created a right of appeal against the decision of the Committee (and not the Registrar), and that the amendment to the words so as to refer to the Registrar as they currently appear in the legislation was “deliberate and deliberated upon”.
The argument is attractive, and none the less so for the fact that the Registrar is now, at later than the last minute, seeking to advance a construction of a provision enacted for the protection of the liberty of the individual in a way diametrically opposite to the express words of the former Attorney-General in Parliament. However, I abstain from placing any weight on this matter of legislative history and come to my decision solely on the basis of the other matters referred to above.
The Registrar’s alternative contention as to construction of the legislation
The Registrar’s secondary alternative contention as to construction of the legislation is put in the Registrar’s written submissions thus:
55. … in the event that the appellant’s primary construction argument is rejected, it contends in the alternative that if s 26C(1)(a) is to be read as providing for an appeal against the Registrar’s decision, then the conduct of the appeal under s 47E [sic: 42E] DCA must be read in a manner which retains a relevant role for the Committee’s decision on appeal which is consistent with its significant role in the review and appeal scheme established in the Firearms Act.
56. That is, the appellant’s contention in the alternative is that the composite phrase in s 26C(1)(a), “a decision of the Registrar that has been affirmed by the Firearms Review Committee” (emphasis added), should not be read merely as imposing the procedural condition precedent, but as identifying that the character of the Registrar’s decision has been transmogrified by the fact that it has now been reviewed and so affirmed. That is, the composite phrase refers only to a decision of the Registrar which has been imbued with the legal character of having been affirmed by the Committee.
57. The consequence which flows from this is that the s 47E(1) [sic: 42E(1)] obligation to examine the decision of the original decision-maker, must, in its application to an appeal brought pursuant to s 26(1)(a) of the Firearms Act, also carry with it an obligation to examine and give due consideration to the Committee’s review and affirmation, and its reasons therefore.
…
59. In the result, if the decision appealed against under s 26C(1)(a) is, contrary to the appellant’s contention, that of the Registrar, then the appellate judge must nevertheless examine and consider both the decision of the Registrar and the decision of the Committee which affirmed it. …
In these circumstances, it is unsurprising the judge did not have regard to the reasons of the Committee. However, in my view, none of this avails the respondent. The Court’s decision is infected by jurisdictional error. The Court was required to obey the imperative provision in s 42E(3) of the District Court Act. The statutory obligation to consider the reasons of the Committee is of an unconditional character. The provision is mandatory.[230] The admission of an estoppel against the appellant to raise the jurisdictional point would nullify the statutory provision.[231]
[230] Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21 at [20], (1988) 164 CLR 502 at 510.
[231] Maritime Electric Co Ltd v General Dairies Ltd [1937] AC 610 at 620; Crofton v WorkCover Corporation (SA) [2002] SASC 64 at [22], (2002) 82 SASR 47 at 51.
Accordingly, I reject the respondent’s submissions. The judge’s decision is infected by jurisdictional error. It must be set aside. As the judge failed to consider the reasons of the Committee, he erred in the exercise of the jurisdiction conferred pursuant to s 42E. I consider this Court must decide the question of jurisdiction without regard to the position adopted by the parties in the appeal to the District Court. I would grant permission to amend. I would allow the appeal on the basis that the judge erred in the exercise of the jurisdiction.
In these circumstances it is not open to the Court to dismiss the appeal on the basis that the judge would have come to the same conclusion if he had, as required, considered the reasons of the Committee, had I been satisfied that was the case.
Disposition of the appeal
The question then is whether this Court, having allowed the appeal, should set aside the judgment and substitute the judgment that it considers appropriate or whether it should remit the matter either to the District Court or the Registrar for further consideration. Pursuant to 6SCR 286 the Court may determine an appeal as the justice of the case requires. It may set aside the judgment subject to the appeal and give any judgment that the justice of the case requires or remit the case or part of the case for rehearing or reconsideration.
In deciding the appropriate orders for the disposition of this appeal there are five important considerations.
The first is that the judge was led into jurisdictional error by counsel for the Registrar of Firearms who submitted, contrary to the position taken before this Court,[232] that the Court should disregard the reasons of the Committee in deciding the appeal to that Court.
[232] I intend no criticism of the Solicitor-General, who was counsel for the appellant before this Court. Once he was alive to the issue of jurisdiction he properly brought it to the attention of this Court. He was not counsel for the Registrar on the appeal to the District Court.
The second is that the judge’s orders must be set aside because they are infected by jurisdictional error. The judge has heard extensive evidence and submissions on the merits of the appeal. The existence of jurisdictional error makes it unnecessary for this Court to decide the merits of the appeal.
The third is that respondent has incurred considerable expense in prosecuting the appeal before the District Court. It is undesirable that those costs should be thrown away.
The fourth is that I do not consider that the other grounds of appeal, which I have found unnecessary to decide given the jurisdictional error infecting the judge’s decision, represent an obstacle to the judge reconsidering the appeal to the District Court in light of this Court’s reasons. While I entertain some concern as to one matter, I am satisfied the judge is capable of reconsidering that matter in a fair and unbiased manner in the context of deciding whether cogent reasons exist to depart from the Registrar’s decision. That matter is the weight the judge gave to the question of whether the failure to account for the 13 missing firearms was explained by the unlawful subterfuge and interdiction of strangers,[233] which the judge described as “the unique conclusion that Marksman was the victim of aberrant circumstances beyond its control”.[234] There was no issue that on the evidence the fact of the missing firearms was in all likelihood explained by the conduct of the employee C. What was in issue was whether the respondent’s failure, over a period of many months and perhaps years, to record the missing firearms and report to the Registrar that they had been lost or stolen, resulted from gross negligence on its part, with the risk of endangering public safety, which meant that cogent reasons did not exist to depart from the Registrar’s decision to cancel the licences.
[233] [2015] SADC 5 at [53].
[234] [2015] SADC 5 at [62].
The fifth is that considerable water has flowed under the bridge since the hearing of the appeal to the District Court. The respondent’s licences were cancelled in April 2013. Nonetheless, the respondent has continued to operate its businesses under conditions imposed by the District Court.[235] In March 2013 the respondent introduced an electronic stocktake system. There have been other changes the respondent has subsequently made in its operational methods to address deficiencies identified by the Registrar. While the judge received evidence of events subsequent to the decision of the Registrar, that evidence seems to have been confined to the period prior to the commencement of the appeal to the District Court on 5 September 2013.
[235] Those conditions expired on 11 March 2016 in accordance with the terms of the order made by the District Court on 20 February 2015.
In these circumstances I consider it appropriate to remit the matter to the judge for further hearing and consideration of the appeal, pursuant to 6SCR 286. Remitting the matter to the judge will afford the judge the opportunity to decide the appeal in accordance with the jurisdiction conferred on him in circumstances where he was led into jurisdictional error. The remittal to the judge will mean that the costs incurred on the appeal heard by the judge will not, in a real and substantial sense, have been wasted. In giving further consideration to the question of whether there are cogent reasons to depart from the decision of the Registrar, the judge can give the parties the opportunity, pursuant to s 42E(1) of the District Court Act, to present further evidence of events since the hearing before the judge. That will permit the judge to have regard not only to the evidence that was before the Registrar but also the evidence of subsequent events including the conduct of the respondent pursuant to the conditions of the stay and the orders previously made by the judge which must be set aside.
Conclusion
I would grant permission to the appellant to amend the grounds of appeal to add ground 8. I would allow the appeal. I would set aside the orders made by the District Court on 20 February 2015. I would remit to the judge for further consideration of the questions whether the respondent’s firearms licence and firearms dealer’s licence should be cancelled. On remittal the judge must examine the decision and reasons of the Registrar, giving due weight both to those reasons and to the reasons of the Committee in accordance with these reasons. The judge should give consideration to whether the parties should be given the opportunity to call further evidence of events since the hearing of the appeal to the District Court pursuant to s 42E(1) of the District Court Act. I would stay the orders made by the delegate of the Registrar on 8 April 2013 to cancel the respondent’s licences pending the hearing and determination of the remitted appeal. I would hear the parties as to the costs of this appeal.
In the circumstances, I would propose the following orders:
1.Grant permission to the Registrar of Firearms to amend its grounds of appeal in action no. SCCIV-15-312 by adding proposed ground 8 of appeal.
2.Allow the appeal by the Registrar of Firearms to this Court in action no. SCCIV-15-312 and set aside the Orders made by Judge Tilmouth on 20 February 2015.
3.Remit the appeal by Marksman Training Systems Pty Ltd to the District Court in action no. DCCIV-13-1155 for further consideration by Judge Tilmouth, including for his Honour:
3.1 to “examine” the decision and reasons of the Registrar of Firearms, giving due weight both to those reasons and to the reasons of the Firearms Review Committee in accordance with the reasons of this Court; and
3.2 to give consideration to whether the parties should be given the opportunity to call further evidence pursuant to s 42E(1) of the District Court Act; and
3.3 to decide and dispose of the appeal by Marksman Training Systems Pty Ltd to the District Court in action no. DCCIV-13-1155 and to pronounce new orders to that end having regard both to 3.1 and 3.2 above and to the reasons of members of this Court, which new orders may be the same as, or different from, the orders originally pronounced by his Honour.
4.Stay the orders made by the Delegate of the Registrar of Firearms on 8 April 2013 to cancel the Firearms Dealers Licence 280511L of Marksman Training Systems Pty Ltd and to cancel the Firearms Licence 315699D of Marksman Training Systems Pty Ltd until the making of new orders by Judge Tilmouth pursuant to order 3 above.
5.The Court will hear the parties as to costs of the appeal to this Court.
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