Sydney Pistol Club v Commissioner of Police, NSW Police Force

[2010] NSWADT 285

CITATION:	Sydney Pistol Club v Commissioner of Police, NSW Police Force [2010] NSWADT 285
DIVISION:	General Division
PARTIES:	APPLICANT Sydney Pistol Club RESPONDENT Commissioner of Police, NSW Police Force
FILE NUMBER:	103257
HEARING DATES:	21 October 2010
SUBMISSIONS CLOSED:	21 October 2010
EXTEMPORE DECISION DATE:	21 October 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Firearms Act – impose a condition on licence or permit – preliminary matter – stay
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997Firearms Act 1996
CASES CITED:	Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37 Williamson v Director General, Department of Transport [2000] NSWADT 165
REPRESENTATION:	APPLICANT S Mainstone, solicitor RESPONDENT J Tillott, agent
ORDERS:	The stay is granted subject to the conditions referred to in paragraphs [27] –[29] of these reasons.

REASONS FOR DECISION

1 The Sydney Pistol Club (“the Applicant”) is the oldest Pistol Club in NSW, being formed in 1956. The Applicant's shooting range has been approved since at least 1992. It holds a Shooting Range Approval under the Firearms Act 1996 (“the Act”), issued pursuant to clause 87 of the Firearms Regulation 2006 (“the Regulations”). The Applicant also holds a Category H licence under the Act. The Applicant holds a Pistol Range Approval issued for the period 29 August 2009 to 28 August 2012.

2 On 3 September 2010 the Commissioner imposed a condition on the Approval in the following terms:

SPECIAL RANGE CONDITIONS:
All shooting activities are suspended indefinitely until notified otherwise in writing by the General Manager Firearms Registry.

3 The Applicant has applied to the Tribunal for external review of the determination to impose that new condition. The Applicant also sought a stay of the determination.

4 The Application for a stay of the determination came before me for hearing on 21 October 2010. On that occasion I granted the stay subject to conditions and I gave brief reasons for my decision. At the Commissioner’s request I now publish more comprehensive reasons for my decision. The Applicant has also sought clarification of one of the conditions of the stay and I will also address that issue in these reasons.

Background

5 The background to the determination is not in dispute. On Sunday 22 August 2010 an unlicensed shooter (“the unlicensed shooter”) stole a pistol which was registered to the Applicant and which had been on loan to the unlicensed shooter. The unlicensed shooter who stole the pistol was undergoing Club training. That pistol, and ammunition obtained from the Applicant, was subsequently used in a murder. As a result of this incident, Police used their discretion to impose the condition that is the subject of this application. Action was also taken in relation to the Applicant’s Category H licence. This application does not concern the Category H licence.

6 The Tribunal's powers to grant a stay are set out in section 60(2) of the Administrative Decisions Tribunal Act 1997 ("ADT Act") in the following terms:

(2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of a determination of the application.

7 Section 60(3) of the ADT Act goes on to say:

(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:
(a) the interest of ay person who may be affected by the determination of the application, and
(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and
(c) the public interest.

8 Judicial Member Rice discussed the meaning of section 60 of the ADT Act in Williamson v Director General, Department of Transport [2000] NSWADT 165 at paragraphs [12] – [19]

12 I understand the overall effect of section 60 to be this. The Tribunal's power is limited to making orders "appropriate to secure the effectiveness of the determination of the application". Although in considering whether to order a stay the Tribunal must take account of the interests of affected people, submissions by the administrator, and the public interest, the power to order a stay at all does not arise unless the Tribunal considers a stay is "appropriate to secure the effectiveness of the determination of the application".

13 The Commonwealth Administrative Appeals Tribunal has stay powers in similar terms under section 41 of the Administrative Appeals Tribunal Act 1975 (the `AAT Act'). The AAT in Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 79 at para 13 demonstrated the reasoning process when it found in the circumstances that:

if a stay is not granted . . . the hearing will not be fully effective. Thus I do have power to grant a stay if I consider it desirable to do so after taking into account the interests of any persons who may be affected by the review.
Meaning of an `effective' determination

14 The Administrative Appeals Tribunal in Re Repatriation Commission and Delkou [1985] AATA 297; (1985) 8 ALD 454 said at para 8:

The power . . . to make an order 'staying or otherwise affecting the operation or implementation of the decision or a part of the decision' sought to be reviewed . . . enables the Tribunal to preserve the status quo pending the hearing and determination of the application for review where the 'effectiveness' of the review may be jeopardized if the decision, in the meantime, is carried into operation. Thus the power may be exercised when it is appropriate to do so to ensure that the application for review, if successful, is not rendered nugatory: cf Polini v Gray (1879) 12 Ch D 438 at 446 per Colton LJ; cf J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (1983) 2 Qd R 243.
15 A stay will guard against situations where the Tribunal sets aside the decision under review, only to find that while waiting for the decision the applicant has, because of the effect of the original decision, ceased trading or is unable to restart operations. In such circumstances the Tribunal's decision would, in the terms of s60, not be an effective one.

16 The AAT in Delkou gave further examples at paragraph 9:

The Tribunal commonly grants a stay in respect of deportation orders. Otherwise the effectiveness of the review would almost certainly be jeopardized because the applicant would be unable to attend the hearing and to enjoy the benefits of his application for review, if successful: cf Kioa v West (1984) 6 ALN N21. On occasions, the Tribunal has stayed the operation of decisions cancelling social welfare benefits where, deprived of that support, the applicant faces serious hardship . . . the Tribunal has recognised that, in a very practical sense, the review may be rendered nugatory unless the applicant is provided with the means of sustenance pending the hearing: cf Re Dart and Director-General of Social Services (1982) 4 ALD 553.
17 As well, a final determination will not be effective if, but for a stay, the applicant would be likely to suffer "irreparable loss":
if (the decision to suspend an authority), before the facts have been established, is likely to cause him or the company serious irreparable harm (irreparable in the sense that no recompense for it can be obtained if the application for review is successful) and so to affect adversely the effectiveness of the hearing and determination of the application under review, it may be appropriate to stay the implementation of the decision pending the hearing and decision of the application. ( Re Pelling and Secretary, Department of Aviatio n [1984] AATA 179; (1984) 5 ALD 638 at 639. See also Australian (NDT) Services Pty Ltd and Civil Aviation Safety Authority [1999] AATA 796 at para 8, and Roy Frederick Griffiths, Grfi-Air Helicopters Pty Ltd v Civil Aviation Authority [1993] AATA 274; (1993) 31 ALD 380 at para 41 and 42).
18 The removal of a child because of a care order, or the loss of reasonable employment prospects because of a licence suspension, might, depending on the circumstances, be examples of "irreparable loss" in some of the review matters in this Tribunal's jurisdiction.

Other factors

19 If the threshold test is passed, and there is power to grant a stay because the Tribunal considers such an order appropriate to secure the effectiveness of a final determination, the Tribunal then engages in a balancing exercise. The appropriateness of a stay so that a determination is effective may, in the circumstances, be outweighed by the factors in s60(3) of the ADT Act, including the public interest and the effect on people's interests.

9 Also see Avilion Group Pty Ltd v Commissioner of Police, NSW Police Force [2009] NSWADT 37.

10 The issues can be summarised as follows:

1. Is a stay appropriate to secure the effectiveness of the determination of the application?
2. Is it desirable to grant a stay pending the Tribunal’s determination of the substantive application taking into account:
(a) the interests of any persons who may be affected by the determination of the application, and
(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and
(c) the public interest.

Is a stay appropriate to secure the effectiveness of the determination of the application?

11 If the stay application is refused, it is to be expected that the process of renewal of memberships will be affected. Members who are unable to participate in club activities could be expected to seek alternatives and this would most probably result in their joining other clubs. It is also probable that a proportion of those members who join another club would not rejoin the Applicant if the application was ultimately determined in the Applicant’s favour.

12 Apart from being a major inconvenience to the members, is also detrimental to the ongoing training of new members who need continuity in their induction program. It is also detrimental to the external range users such as the Police and Security organisations that utilise the range for training purposes as it is the only facility in that part of Sydney that meets their requirements.

13 If the Applicant ceased its operations as a result of the condition, there would be no point in the Tribunal subsequently making an order that the imposition of the condition was not the "correct or preferable" decision.

14 If the Tribunal grants the stay, the Applicant will be able to process membership renewals and continue to conduct club activities. When the Tribunal comes to assess the merits of the decision, the immediate threat to its continued operation will not be a factor for consideration.

Evidence and submissions of the Applicant.

15 Mr Ian George, the Applicant’s senior vice president, gave evidence in regard to the potential impact on the Applicant if the condition remains in place. His evidence is that the ultimate impact would be that the Club would have to close. The Club has already had to cancel a scheduled competition. In his opinion, it is improbable that existing members will renew their membership if the Applicant cannot conduct club activities. The would most likely join another club and most would be reluctant to pay the membership fees associated membership of more than one club.

16 Mr George also gave evidence in regard to the layout of the Applicant’s premises and the general processes involved in accepting applications from new members and supervision provided to unlicensed persons wishing to tryout the Applicant’s facilities and activities.

17 Mr George pointed to changes to its range procedures and to its By-Laws in an effort to address the Commissioner’s concerns. The following provisions are now included in the By-Laws.

36. CLUB PISTOLS
.22 pistols will be issued on the 'live fire' ranges, Air pistols will be issued on the Air Range. A member who has booked out a Club Pistol and fails to have it signed back into the register and leaves the range with the pistol will have their membership terminated.

37. CLUB PISTOL REGISTERS

Any firearms booked out to unlicensed members or Probationary Photo licence holders who are not yet eligible to obtain a firearm, at the time of booking out a pistol, their range shooting bay number will also be recorded so range officers together with the Duty Person who is in charge of Club Pistols on the day can further ensure compliance with By Law 36.

18 Mr Mainstone submits that the Tribunal could have confidence that there is no risk to public safety if the condition that has been imposed is lifted.

Evidence and submissions of Commissioner.

19 The Commissioner relies on the facts sheets and the transcripts of interviews concerning the theft on 22 August 2010 and the subsequent murder and charges brought against the unlicensed shooter and two senior members of the Applicant.

20 Ms Tillott submits that the Commissioner has identified safety issue associated with the practices of the Applicant and that the level of knowledge of senior members of the club is a relevant factor to be considered by the Tribunal. She contends that the events of 22 August 2010 clearly demonstrate the cause for that concern. She says that Mr George’s answers under cross-examination were illustrative of the deficiency in the level of knowledge of senior members of the Applicant.

21 Ms Tillott submits that the underlying principle of the Act is public safety. The Commissioner accepts that 150 people will be inconvenienced as a result of the imposition of the condition, but the Commissioner says that that is a very small price to pay when ensuring public safety. Ms Tillott submits that it is in the public interest for shooting to be suspended at that particular range, until all of the safety issues are able to be addressed. The Commissioner contends that the accounts that have been provided from various witnesses and interviewees, along with the answers given by Mr George as the senior vice president, indicate a disturbing lack of knowledge of the relevant legislation and the requirements of the club itself.

22 For these reasons, the Commissioner opposes the application for a stay of the determination.

23 The persons most affected by the application are the members of the Applicant and their associates. Others affected would include members of the general public and of other clubs who have an interest in participating in the activities offered by the Applicant. If the stay application is refused, it would obviously have an effect, at least in the short term, on the current members of the Applicant in that they would need to look elsewhere for opportunities to pursue their interests that were previously met through activities offered by the Applicant. There may be some financial impact from the need to join a new club or to travel further to participate in activities. Prospective members and members of other clubs would be less inconvenienced but would miss out on the possibility of participating in activities and competitions.

24 The most difficult and contentious issue in these proceedings is the effect on the public interest of granting a stay. There is clearly a significant public interest in the Applicant complying with all the required standards in order to ensure public safety. The Commissioner is rightly concerned about the potential risks associated with the grant of a stay.

Conclusion.

25 In my view the Applicant will suffer irreparable loss if a stay is not granted because it is likely that it would have to cease operation. It is likely that it will suffer a loss of which could not be overcome by any order of the Tribunal. For those reasons I am satisfied that a stay is appropriate to secure the effectiveness of the determination of the application.

26 However, it is my view that the stay should be subject to conditions that will reduce the possible risk to public safety.

27 I note that the Applicant has made changes to the By-Laws an effort to address the Commissioner’s concerns. The Commissioner submits that the amended By-Laws would not have prevented the theft on 22 August 2010. The Commissioner submits that the theft was possible because of inadequate supervision of the unlicensed shooter. This is a matter that will be considered in the hearing of the substantive matter. However, it will not be a cause for concern during the period of the stay if no unlicensed persons are permitted to access the range or related facilities while firing activities are under way. I propose that the stay should be subject to that condition.

28 In clarification of that condition, I note that it is my intention that, for the period of the stay, unlicensed persons are not to be permitted on those parts of the Applicant’s premises that are concerned with firearm activities. That includes the area where firearms are stored and the range. It is not my intention that those persons be excluded from the club house or from social functions that do not involve firing activities if access is available to those parts of the premises without the need to access those parts of the Applicant’s premises that are concerned with firearm activities. Procedures should be put in place to ensure that unlicensed persons are not permitted to access those parts of the Applicant’s premises that are concerned with firearm activities from the club house or from social functions that do not involve firing activities.

29 I also note the assertion that the unlicensed shooter was loaned a firearm by a licensed member of the Applicant. There appears to be some uncertainty about what actually took place in that regard on 22 August 2010, however it is my view that a record should be maintained where there is lending of firearms by a licensed member of the Applicant. I propose that the stay should also be subject to that condition.

Order

The stay is granted subject to the conditions referred to in paragraphs [27] –[29] of these reasons.