TONKIN and COMMISSIONER OF POLICE - [2011] WASAT 24

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION: TONKIN and COMMISSIONER OF POLICE [2011] WASAT 24

MEMBER: DR B DE VILLIERS (MEMBER)

DELIVERED : 10 FEBRUARY 2011

FILE NO/S: CC 72 of 2010

BETWEEN: NEVILLE TONKIN
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearm licence Effluxion of time of a firearm licence Whether there is any practical benefit to continue proceedings when the period for which a licence was granted expires Whether a review proceeding before the Tribunal stays or extend the period for which a firearm licence was issued If the firearm licence expires during the review process, whether an application lacks substance

Legislation:

Firearms Act 1973 (WA), s 9A(3), s 9A(4), s 9A(6), s 22, s 22(2), s 47
Security and Related Activities (Control) Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3), s 29, s 29(1), s 29(3), s 31

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Applicant: Mr P Marsh
Respondent: Snr Constable S Bagley

Solicitors:

Applicant: Paul Marsh
Respondent: Commissioner of Police

Case(s) referred to in decision(s):

Dulzurah Pty Ltd and Fisheries Department of WA [2005] WASAT 144
Dunbar and Commissioner of Police [2007] WASAT 90
Tonkin and Commissioner of Police [2010] WASAT 181

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Commissioner of Police sought an order to dismiss the application for review of a decision of the Commissioner of Police on the basis that the 12 month period for which Mr Tonkin's firearm licence had been issued had expired during the hearing. The Commissioner contended that the Tribunal only has power to hear an application for review of a decision to revoke a firearm licence or a refusal to renew a firearm licence within the period for which the licence had been issued. The commencement of the review process in the Tribunal does not have the effect to stay or extend the period for which the licence had been issued. As a result, as soon as the period for which a licence has been issued expires through effluxion of time, the review function of the Tribunal ceases.
Mr Marsh, who acted for Mr Tonkin, chose not make any submissions in reply to those of the Commissioner regarding the expiry of the firearm licence.
Mr Marsh highlighted, however, that there was some confusion as to whether the decision under review in these proceedings was the refusal for a firearm licence to be renewed, or whether it was a review of a decision to revoke the firearm licence.
The Tribunal found that there was no practical benefit to continue proceedings after Mr Tonkin's firearm licence expired. When an existing firearm licence expires, the Tribunal's ability to reinstate a licence ceases and the application, in effect, lacks substance. The effect of the review process is therefore not to extend the time for which a licence is issued, or to stay the expiry of time for which it had been issued. If the Tribunal were to make a determination after a licence had expired, it would amount, in effect, to a new licence being issued, which the Tribunal cannot do, since such a decision falls within the original jurisdiction of the Commissioner.
The application for the matter to be dismissed for lack of substance was therefore successful.

Issue: Whether the application for review of the decision of the Commissioner of Police (Commissioner) should be dismissed on the basis that firearm licence no 3045109 (firearm licence), the subject of these proceedings, had expired through effluxion of time, and therefore the application lacks substance since it has no practical effect

Background

The application for review was lodged on 18 January 2010. After several adjournments, the hearing commenced on 13 September 2010 and evidence of several witnesses was heard over a period of two days. The hearing was again adjourned at the conclusion of the second day of evidence for the remaining two witnesses (Mr Tonkin, and Dr Jobson as the expert) to be heard at a later stage. Before the evidence of these witnesses was heard, the Commissioner sought from the Tribunal an order to reinstate the firearm licence. The Tribunal refused to reinstate the firearm licence on the basis that it had not yet heard all the evidence and, on the basis of the available evidence, it was not satisfied that the correct and preferable decision would be to reinstate the firearm licence: Tonkin and Commissioner of Police [2010] WASAT 181.
The matter was subsequently set down for a directions hearing to make programming orders for the remainder of witnesses to be heard and for closing submissions to be made.
The Commissioner wrote to the Tribunal on 10 January 2011 seeking an order for the proceedings to be dismissed due to the jurisdiction of the Tribunal having ceased when the firearm licence, the subject of the proceedings, expired. The Commissioner contended that the firearm licence, the subject of these proceedings, had expired during the course of the hearing and, as a result, the review process has no practical benefit.
The Tribunal requested the Commissioner to provide: the date on which the firearm licence was issued the first time; the date upon which it was renewed; and the date upon which it expired. The Commissioner, by letter of 4 February 2011, informed the Tribunal that the firearm licence was first issued on 11 September 1989. The last time it was renewed was from 20 October 2009. The date of expiry of the firearm licence was 20 October 2010.
Mr Marsh, for the applicant, did not file a response to the application by the Commissioner for the application to be dismissed, and he indicated during the hearing that he would remain silent on the issue and that he preferred not to make any written or oral submission.

Contentions

Ms Atkins, for the Commissioner, says she understands that it may be unfair to Mr Tonkin if the application was dismissed or struck out at this late stage of the proceedings, but it must be acknowledged at the same time that if a decision of the Tribunal has no practical effect, a matter must be dismissed or struck out. The Tribunal cannot, in effect, grant a new firearm licence once a previous firearm licence has expired, and the Tribunal cannot review a decision if the licence the subject of the review has ceased to exist.
Ms Atkins acknowledges that the way in which the Commissioner had dealt with the firearm licence of Mr Tonkin had been confusing, but she says as follows:
a)A firearm licence is issued for a year, whereafter it must be renewed. If it is not renewed, the firearm licence lapses and ceases to exist. The period for renewal of this firearm licence had lapsed.
b)According to the decision of the then Deputy President of the Tribunal, Judge Chaney, in the matter of Dulzurah Pty Ltd and Fisheries Department of WA [2005] WASAT 144 (Dulzurah), there is no practical benefit for the Tribunal to consider an application for review of a decision where a firearm licence had ceased to exist due to effluxion of time.
c)The decision, the subject of these proceedings, is 'a reversal of the decision to revoke the [firearm] licence and renewal of the [firearm] licence' (Letter dated 10 January 2011).
d)The Tribunal may 'split the application for the review, to consider whether it is possible to look at the decision to revoke, and decide whether, on the basis of the information before you, what is the correct and preferable decision that should be made, and then deal with the question of renewal. Of course you can't renew because it appears that the [firearm] licence has expired' (T:3, 21.1.11).
Although Mr Marsh indicated to the Tribunal that he would remain silent on the merit of the application of the Commissioner for the matter to be dismissed due to an effluxion of time, he nevertheless drew the attention of the Tribunal to some confusing aspects of the Commissioner's decisionmaking process in regard to this firearm licence. For example, he pointed to the following:
a)Mr Tonkin's firearms were confiscated in September 2009 after the domestic incident on 5 September 2009 which eventually gave rise to these proceedings. At the time of the confiscation of the firearms, the firearm licence was not revoked.
b)Mr Tonkin applied in October 2009 for a renewal of his firearm licence and the cheque he sent as part of the renewal was presented by the Commissioner shortly thereafter. Mr Tonkin, however, did not receive written confirmation that the firearm licence had been renewed. Snr Constable Bagley, for the Commissioner, explained during these proceedings that it appeared that the renewal of the firearm licence had not been successful, since a record had been inserted in the electronic database of the Commissioner 'not to issue' Mr Tonkin with the renewal of the firearm licence. It is not, however, clear, according to Snr Constable Bagley, who made the decision not to reissue (if indeed a decision was made), who inserted the record on the database, and why the decision not to renew (if indeed there was a decision) was not communicated to Mr Tonkin.
c)Regardless of the alleged nonrenewal of the firearm licence, Mr Tonkin was informed by letter dated 8 January 2010 that the firearm licence had been revoked as from the date of service of the letter of revocation. It is not clear when the letter of revocation was actually served, but Mr Tonkin lodged an application for review on 18 January 2010, so it can be assumed that the letter of revocation was served on him between 8 January 2010 and 18 January 2010.
d)The decision to revoke the firearm licence was referred back by the Tribunal to the Commissioner on 19 February 2009 pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) pursuant to a request by the Commissioner. In the letter of the Commissioner dated 19 February 2009, the Commissioner requested that the matter be referred back to it in order for the 'appropriate delegate' to reconsider the decision. There is no record of the outcome of such reconsideration, but these proceedings continued and it is assumed that the Commissioner's delegate affirmed the decision to revoke the firearm licence.
e)It is therefore not clear, according to Mr Marsh, whether these proceedings are for the review of the refusal to renew the firearm licence or a review of the revocation of the firearm licence. If it is for the refusal to renew the firearm licence, it is not known, according to Mr Marsh, who the decisionmaker was and what exactly was the basis for the decision.

Statutory framework

The following excerpts provide the statutory framework against which the application is considered.

State Administrative Tribunal Act 2004 (WA)

The Tribunal has, in accordance with s 29(1) of the SAT Act, the same jurisdiction, functions and discretions as those of the delegated officer pursuant to the regulations.
The Tribunal is not limited to the statement of reasons given by the delegated officer (s 27(3) of the SAT Act). The Tribunal may also take into account any additional or new information that was not at the disposal of the delegated officer at the time the decision was made (s 27(1) of the SAT Act).
The review hearing is therefore de novo (s 27(1) of the SAT Act), and is not confined to the matters and information that were before the decisionmaker at the time of the decision.
The powers of the Tribunal, according to s 29(3) of the SAT Act, are to:
a)affirm the decision;
b)vary the decision; or
c)set aside the decision; and
d)make appropriate orders.

Firearms Act 1973 (WA)

Section 9A(3), s 9A(4) and s 9A(6) of the Firearms Act 1973 (WA) (Firearms Act) provides as follows:
9A(3)Any other licence under the Act is valid for a period of 12 months from the day on which it was issued or last renewed.
9A(4)The Commissioner may, on payment of the prescribed fee, renew a licence from time to time for further periods on application made within one month before, or within 12 months after, its expiry.
9A(6)Where a licence is renewed on application made more than 3 months, but not more than 12 months, after its expiry, the renewal takes effect on and from the day on which it is effected, but for the purposes of determining the day when the renewed licence expires, it is deemed to have been renewed immediately after it previously expired.

Consideration

The Tribunal understands the frustration that may be experienced by Mr Tonkin that an application to dismiss the proceeding is brought at such an advanced stage of the process. At no stage during these proceedings did any of the parties raise with the Tribunal the possibility that the firearm licence may expire during the proceedings; nor did any party propose programming orders to be made in a manner that would provide the outcome of the review process prior to the expiry of the firearm licence. The application is part heard; only two witnesses remain to give evidence, and Mr Tonkin now faces a possibility that the Tribunal may make a finding that there is no practical purpose to be served for the matter to continue, since the firearm licence had expired. It would leave him in a situation where he may have to apply for a new firearm licence and, if necessary, request that the evidence heard during these proceedings be made available for the purposes of the new application.
The Tribunal finds it extraordinary that there is so much confusion within the office of the Commissioner regarding whether the firearm licence of Mr Tonkin had been renewed; whether the renewal had been refused, or whether the firearm licence had been renewed and subsequently revoked. It is surprising that after all these months it is not clear whether:
a)the application by Mr Tonkin in October 2009 to renew the firearm licence had failed, regardless of the fact that the cheque for renewal was presented on 22 October 2009 and a receipt was issued on 27 October 2009. It seems, however, that the Commissioner, in the letter of 4 February 2011, accepts that the firearm licence had indeed been renewed. This does not clarify the observation of Snr Constable Bagley that an inscription was made on the data base 'not to issue';
b)if the renewal had been refused, who was the delegate that made the decision not to renew and what were the reasons for the decision;
c)if the application for renewal was successful, then why the outcome was not communicated to Mr Tonkin, albeit that, in the letter of 4 February 2011, the Commissioner attached a copy of a renewal that was purportedly issued to Mr Tonkin; and
d)if the decision was not to renew the firearm licence, then why it was necessary for a decision in January 2010 to revoke the firearm licence.
It seems to the Tribunal as if the firearm licence was indeed renewed in October 2009 and revoked in January 2010. The decision for review should therefore concern the revocation of the firearm licence, but as the Tribunal explains below, the firearm licence has expired, regardless of whether the decision under review was the decision not to renew or the decision to revoke.
To add to the confusion, Ms Atkins requested the Tribunal, in motivation for the application to be dismissed, to 'split' the decision to revoke from the decision not to issue (as if there were two decisions), and then she further suggested for the Tribunal to find that the firearm licence had expired, since it had not been renewed, but she nevertheless wants the Tribunal to deal with the decision to revoke the firearm licence on its merits.
All of this may leave Mr Tonkin very disillusioned, frustrated and uncertain about what has been taking place since the firearms were confiscated in September 2009.
The picture gets even more confusing when Mr Marsh, who appears for Mr Tonkin, opts not to make any submissions in reply to the Commissioner's application for the matter to be dismissed. Mr Marsh takes issue with the jurisdiction of the Tribunal, but in response to a question by the Tribunal as to what the grounds for his concern with jurisdiction are, Mr Marsh says as follows:
Mr Marsh: … I can tell you that the jurisdiction of the Tribunal is not accepted and it will be the subject of submissions at some point. (Tribunal emphasis)
Member de Villiers: But, Mr Marsh, what I don't understand if you don't accept the jurisdiction of the Tribunal[,] what have we been doing over the past three, four months with hearings, with costs to your client? I mean, while I follow everything up to now, this part I don't follow.
Mr Marsh:Well, there are a number of explanations for that situation which again I would prefer not to put to the Tribunal. (T:12, 21.1.11) (Tribunal emphasis)
The following three possible scenarios present themselves to the Tribunal in regard to the renewal or revocation of the firearm licence.
•Firstly, the renewal of the firearm licence of Mr Tonkin was refused in or around October 2009, albeit that he was not provided with the decision.
•Secondly, the renewal of the firearm licence of Mr Tonkin for a period of 12 months was successful in October 2009 when his cheque was presented and the receipt was issued, but he was not provided with confirmation of the renewal.
•Thirdly, the firearm licence had been renewed in October 2009 but it was revoked in January 2010.
The question for the Tribunal is whether these proceedings are affected by the effluxion of time in light of the working of s 9A(3) of the Firearms Act that provides that a firearm licence of this type (being neither an Ammunition Collector's Licence nor a Firearms Collector's Licence) can only be issued for a 12 month period from the date on which it was issued or last renewed.
This brings me to the powers of the Tribunal to review a decision of the Commissioner. Section 29 of the SAT Act clothes the Tribunal with the power to affirm, vary or set aside the decision the subject of the review and to substitute the decision with its own decision or to send the decision back to the decision-maker for reconsideration and/or to make any other orders the Tribunal considers appropriate.
In considering a decision under review, the Tribunal is limited in that it can only exercise such powers and functions under the enabling Act (Firearms Act) and the SAT Act that correspond to those of the decisionmaker. Before the Tribunal can be called upon to review a decision, there must be a reviewable decision by the original decisionmaker. The Tribunal can therefore not exercise any power that falls within the original power of the decisionmaker; hence, s 22(2) of the Firearms Act provides as follows:
A person aggrieved by a decision made by or on behalf of the Commissioner may apply to the State Administrative Tribunal for a review of the decision. (Tribunal emphasis)
The power of the Commissioner to issue, renew or revoke a firearm licence is part of the Commissioner's original powers. It is only when the decision has been made by the Commissioner that s 22 of the Firearms Act allows a review by the Tribunal of the decision.
In order for the Tribunal to review a decision of the Commissioner to refuse to renew or to revoke a firearm licence, the proceeding must fall within the period for which the licence was issued (12 months, pursuant to s 9A(3) of the Firearms Act). If not, and if the period for which the firearm licence had been issued has expired, the firearm licence ceases to exist due to an effluxion of time. In such a circumstance, 'the Tribunal has no jurisdiction to grant a new licence' (Dulzurah at [29]). In the Dulzurah matter, the applicant's fishing licence had expired and he did nothing to renew it, but the principle remains relevant to these proceedings; namely, if a firearm licence expires prior to the review process being finalised, the Tribunal ceases to have a practical function to discharge, since the firearm licence the subject of the proceedings had ceased to exist.

The review process of the Tribunal therefore commences after a reviewable decision has been made, but it expires when the licence the subject of the review ceases to exist. Even if the review has commenced, it remains subject to the licence, which is the subject of the proceedings, being in existence. The term of the licence is not extended by the working of the review proceedings.
This is consistent with the matter of Dunbar and Commissioner of Police [2007] WASAT 90 where the question was raised whether the term of a licence issued pursuant to the Security and Related Activities (Control) Act 1996 (WA) was suspended while legal proceedings were underway. The then Deputy President of the Tribunal, Judge Chaney, found in the negative. His Honour found that if a licence is revoked and the decision is taken on review, the term of the licence is not stayed or extended. If the term for which the licence was granted expires (in that case a period of three years), the licence lapses automatically and the proceeding before the Tribunal becomes unjustified. It was concluded, at [22] [23], as follows:
The applicant contends that 'time cannot run against the licence whilst it is revoked'. It is submitted that, because the licence had a further 34 months to run when it was revoked, the applicant would be entitled to a further 34 months operation of his licences if the Tribunal were to set aside the licensing officer's decision.
There is no statutory basis for that contention. It ignores s 29(5) of the SAT Act which provides that a decision that the Tribunal substitutes for the decisionmaker's decision is to be regarded, unless the enabling Act states otherwise or the Tribunal orders otherwise, as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect. That provision is inconsistent with the proposition that the term of the licence is suspended and recommences from the date of the decision on review. …
The Tribunal will now turn to the application by the Commissioner for these proceedings to be dismissed.
Regardless of the confusion characterising these proceedings, the Tribunal finds that the firearm licence ceased to exist because of an effluxion of time and there is no practical benefit to continue with the proceedings.
The application must therefore be dismissed for lack of substance.
The reasons for this finding are as follows:
i)The firearm licence was first issued on 11 September 1989 for a period of 12 months. It was renewed on an annual basis. If the application for renewal of the firearm licence was refused, the firearm licence expired on 20 October 2009. If the firearm licence was renewed on 20 October 2009, the date of expiry of the firearm licence was 20 October 2010. Either way, the firearm licence has expired prior to or during the course of proceedings, and that removes any practical effect that a decision of the Tribunal may have.
ii)If the firearm licence was renewed on 20 October 2009 for a period of 12 months but it was subsequently revoked in January 2010, the period within which to consider the decision to revoke was affected by the effluxion of time of the firearm licence when the firearm licence (if renewed) expired on 20 October 2010.
iii)There is no ground for the Tribunal to 'split', as Ms Atkins suggested, the renewal decision from the revocation decision. In both scenarios, the firearm licence had expired by effluxion of time and the proceedings before the Tribunal have become unjustified.
iv)If the Tribunal were minded to make a decision on the revocation of the firearm licence as is suggested by Ms Atkins, it would in effect constitute a decision by the Tribunal to issue a new firearm licence but as already explained, the Tribunal has no power to make an original decision.
The application should therefore be dismissed pursuant to s 47 of the SAT Act on the basis that it lacks substance since the licence has expired and no practical purpose can be served by a continuation of the review process.

Order

The application is dismissed on grounds that it lacks substance since firearm licence no 3045109 has expired.

I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER