Taylor v Commissioner of Police, NSW Police (GD)

[2006] NSWADTAP 60

Appeal Panel - Internal

CITATION:	Taylor v Commissioner of Police, NSW Police (GD) [2006] NSWADTAP 60
PARTIES:	APPELLANT Raymond Weeah Taylor RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	069046
HEARING DATES:	09/11/06
SUBMISSIONS CLOSED:	11/09/2006
DATE OF DECISION:	11/24/2006
BEFORE:	O'Connor K - DCJ (President); Fitzgerald K - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	leave to file Application out of time - relevant/irrelevant considerations - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	063180
DATE OF DECISION UNDER APPEAL:	08/01/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Firearms Act 1996 Firearms and Dangerous Weapons Act 1973
CASES CITED:	Taylor v Commissioner of Police, New South Wales Police [2006] NSWADT 48 House v The King (1936) 55 CLR 499 Hargrave v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 24
REPRESENTATION:	APPELLANT S Mainstone, solicitor, Mainstone Lawyers RESPONDENT A Venditti, agent
ORDERS:	Appeal dismissed

REASONS FOR DECISION

1 The appellant is the subject of a firearms prohibition order. In this instance the order was issued by the Commissioner of Police on 30 April 1985 pursuant to the Firearms and Dangerous Weapons Act 1973 and served on 28 May 1985 at Corowa. Orders made under earlier legislation continue to have force: see Firearms Act 1996 (Firearms Act) Schedule 3, cl 11.

2 Section 75(1) of the Firearms Act gives the Tribunal jurisdiction to review various types of decision including firearms prohibition orders:

‘ 75 Review by Administrative Decisions Tribunal of certain decisions

(1) A person may apply to the Administrative Decisions Tribunal for a review of any of the following decisions:

(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,

(b) a condition imposed by the Commissioner on a licence or permit issued to the person,

(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),

(d) the refusal of or failure by the Commissioner to register a firearm,

(e) the cancellation of the registration of a firearm by the Commissioner,

(f) a firearms prohibition order made against the person,

(g) a decision made under the regulations concerning the person that belongs to a class of decisions prescribed by the regulations for the purposes of this paragraph.’

3 This is the second attempt by the present appellant to have the Tribunal quash the Commissioner’s order. On the earlier occasion the appellant applied to the Tribunal following an application to the Commissioner for revocation of the order. The Commissioner refused to revoke the order (8 August 2005). The Tribunal declined to hear the application as refusal to revoke a firearms prohibition order was not one of the heads of jurisdiction given to the Tribunal by s 75(1). The Tribunal remarked in passing that s 75 did confer jurisdiction in respect of the review of the making of the order. See Taylor v Commissioner of Police, New South Wales Police [2006] NSWADT 48 (record of an ex tempore decision given 25 October 1995).

4 That led the appellant to apply formally on 6 March 2006 to the Commissioner for internal review of the decision to make the order. The Commissioner replied on 12 April 2006, refusing to deal with the application on the basis that it was out of time.

5 Section 53(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) imposes the following time requirement on applications for internal review of reviewable decisions:

‘ (2) Requirements for an application

An application for an internal review is: …

(d) to be lodged at the office (or an office) of the administrator within 28 days (or such later date as the administrator may allow) after the person:

(i) if the person has requested reasons under section 49—was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or

(ii) if the person has not requested reasons under section 49—was notified of the making of the reviewable decision, …’

6 The appellant lodged the application for review underlying this appeal with the Tribunal on 27 April 2006. Normally, the ADT Act requires that an internal review be finalised before an application can be lodged with the Tribunal. Applications for external review must be lodged within 28 days from the day on which the internal review is taken to be finalised under s 53(9) of the ADT Act: Rule 15(3) of the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 , made pursuant to s 55(1)(d) of the ADT Act.

7 The Tribunal may dispense with the requirements for internal review and timely filing in some circumstances. The ADT Act, s 55(2) and (3) provides:

‘(2) However, subsection (1) (b) [requiring internal review] or (d) [the related time requirement] does not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under section 53 if the Tribunal is satisfied that:

(a) the person was not at any time entitled to apply for an internal review of the decision, or

(b) the person made a late application for an internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned, or

(c) it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned.

(3) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (2), the Tribunal is to have regard to:

(a) the time when the applicant became aware of the making of the decision, and

(b) in a case to which subsection (2) (b) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c) such other matters as it considers relevant.’

8 The Tribunal below refused to exercise these powers; and dismissed the application. The Tribunal was not satisfied that the administrator ‘unreasonably refused’ to consider the application and did not consider that the appellant made the application ‘within a reasonable time following the decision of the administrator’.

9 The appeal is a ‘question of law’ appeal (see ADT Act s 113(2)(a)). The appellant applies for orders that the Panel rule in favour of the appellant on the s 55(2)(b) application, and then remit the application to the Tribunal for determination.

10 Discretionary judgments should not lightly be interfered with by an appellate body. It is not necessary on this occasion to deal at length with the relevant case-law originating with the well-known statement of the High Court in House v The King (1936) 55 CLR 499 at 505-506.

11 As he did before the Tribunal, in the notice of appeal and the accompanying submissions, the appellant refers to the change in his circumstances since the events in 1985 that led to the making of the firearms prohibition order. He contends that his change in circumstances (especially in relation to his health) are such that a fair-minded administrator would allow him once again to have a firearm. He wants to have the opportunity to put on evidence before the Tribunal as to these matters. He wishes to have considered a full psychiatric report.

12 In our view the Tribunal’s response was inescapable. The ADT Act establishes a scheme for the merits review of primary administrative decisions which has a number of steps – first a right to seek internal review by a more senior person in the agency that made the decision, a right to request the giving of reasons for decision, then a right to apply for external review by the Tribunal followed by a right of appeal to the Appeal Panel (subject to leave being granted to extend the appeal to the merits). At each point time lines are prescribed. These provisions reflect an overall aim that administrative decisions be permitted to be reviewed in a timely way; and, unless there is a strong justification, then be closed from review. Finality is important for orderly administration of licensing schemes, just as it is, more generally, for the administration of the justice system.

13 When the order in issue in this case was made the legislation did not compel the giving of reasons; but it did provide for an external right of appeal. Section 24 of the Firearms and Dangerous Weapons Act 1973 provided relevantly:

‘24. (1) For the purposes of this section a person is aggrieved by a decision in respect of him made by the Commissioner only if – …

(k) a firearms prohibition order is made in respect of him.

(2) A person who is aggrieved by a decision in respect of him made by the Commissioner may, in accordance with subsection (3) appeal against that decision to a court of petty sessions held before a stipendiary magistrate.

(3) Any such appeal may be made, within twenty days after the decision was notified to the person entitled to appeal.’

14 There is no evidence that the appellant exercised this right of appeal.

15 A firearms prohibition order only becomes operative upon personal service. This was the position under the law in 1985 (Firearms and Dangerous Weapons Act 1973, s 69); and remains so (Firearms Act s 73(3)). The appellant has alleged in these proceedings that personal service was not effected upon him in 1985. If this is the case, then the order has never been operative. The Commissioner has filed evidence in response – the affidavit of service made at the time by the constable who effected service giving 28 May 1985 as the date of service. We see no merit in the appellant’s contention.

16 It makes no difference in our view if the date from which time is calculated to run is treated as being 23 August 1996, as submitted by the appellant, as distinct from 28 May 1985. The former date is the date of commencement of the present Firearms Act. The appellant contended before the Tribunal and on appeal that one effect of the transition provisions preserving in force orders made under the former legislation is that the orders are to be treated as becoming operative under the new Act on the date of commencement of the new Act. We do not think that this interpretation can be drawn from the transitional provisions, and agree in that regard with the reasons of the Tribunal at paras [8]-[11] and [15] of its reasons. To similar effect, see Hargrave v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 24 at [17]-[26].

17 The appellant also contended in support of the exercise of the discretion in his favour that due to his mental health in 1985 he did not in fact become ‘aware’ of the order until relatively recent times. The Commissioner produced a copy of a shooter’s licence application made by the appellant in July 1990 in which he answered the question whether he had ever been the subject of a firearms prohibition order with a ‘yes’ and the details ‘Corowa 1985’. (This application was actioned by the Commissioner – mistakenly, it would seem, and the appellant did in fact hold a licence again for 3 years.)

18 There was some criticism made at our hearing of the Tribunal’s reference in paras [18]-[19] of its reasons to the appellant’s personal circumstances. There was a suggestion that the Tribunal had improperly found facts without considering relevant evidence. The Tribunal was simply providing some factual context drawn from the appellant’s submissions. It was not engaging in a fact-finding exercise. It is clear that its exercise of discretion in this case did not in any way depend on its understanding of the particulars as to change of circumstances that the applicant now wished to advance. The Tribunal found the timeliness considerations conclusive.

Order

Appeal dismissed.