TONKIN and COMMISSIONER OF POLICE

[2010] WASAT 181

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION:   TONKIN and COMMISSIONER OF POLICE [2010] WASAT 181

MEMBER:   DR B DE VILLIERS (MEMBER)

HEARD:   1 DECEMBER 2010

DELIVERED          :   Edited reasons delivered orally on

1 DECEMBER 2010

FILE NO/S:   CC 72 of 2010

BETWEEN:   NEVILLE TONKIN

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Making of orders to give effect to settlement reached between parties after proceedings have commenced - Discretion of Tribunal to consider all the information before it before it gives effect to a settlement - Can the Tribunal in review proceedings refuse to make orders of settlement agreed to by the parties  - Tribunal must be satisfied that the draft consent orders submitted to it is the correct and preferable decision and that it is in compliance with the enabling Act - Tribunal must take into account the public interest prior to making orders to give effect to a settlement especially if a matter is part heard and all the evidence heard has not been taken into account by the decision-maker when it consented to the settlement

Legislation:

Firearms Act 1973 (WA), s 11, s 11(1)(c)
State Administrative Tribunal Act 2004 (WA), s 56

Result:

Application for settlement orders 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):

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Mr Tonkin seeks a review of the decision to revoke his firearm license. The application is part heard with two witnesses remaining to give evidence. The Commissioner of Police and Mr Tonkin have agreed on a settlement. A minute of proposed orders to give effect to the settlement was submitted to the Tribunal for its consideration pursuant to s 56 of the State Administrative Tribunal Act 2004 (WA).

2. The Tribunal explained to the parties that it has a discretion whether orders are made to give effect to the settlement. Since the proceedings are de novo, the Tribunal must, as final decision-maker, be satisfied that the orders as proposed constitute the correct and preferable decision, that the orders are in the pubic interest and that Mr Tonkin is, pursuant to s 11(1)(c) of the Firearms Act 1973 (WA), a fit and proper person to be licensed. In essence, the Tribunal is not a mere rubber stamp to give effect to the settlement.

3. The Commissioner of Police, in making its decision to consent to the terms of settlement, relied entirely on an expert report by Dr Steve Jobson, a psychologist, who recommended that the firearm license be reinstated.  In its internal memorandum, the Commissioner of Police's Inspector RR Corkill makes no reference to the extensive evidence heard so far in the proceedings nor does he weigh all the information disclosed in the hearing.  He merely concludes that:

   ... having regard to the extensive nature of Jobson's report using a multiplicity of assessment tools I am of the view there is no value to be added by having Tonkin evaluated by a medical practitioner nominated by the WA police.  For those reasons I am of the opinion the revocation order against Neville Tonkin's firearms license should be withdrawn.

4. The Tribunal asked from Senior Constable Bagley, who acted for the Commissioner of Police, whether the report of Dr Jobson had been submitted to a psychologist expert of the Commissioner of Police for comment and assessment; whether Inspector Corkill is an expert in the field of psychology; whether Inspector Corkill had the expert knowledge to assess the methodology used by Dr Jobson; and whether Inspector Corkill had access to transcripts of all the evidence heard in the proceedings before he made his recommendation for the licence to be reinstated.

5. Senior Constable Bagley's reply to all the questions was in the negative.

6. The Tribunal decided to refuse to make the orders proposed by the parties since the Tribunal was not satisfied that with the information available, such a decision would at this stage of the proceedings be the correct and preferable decision.  The Tribunal emphasised that although it has an open mind about the eventual outcome of the proceedings, it was not satisfied that Inspector Corkill had taken into account all the information before him before agreeing to the terms of settlement.  The Tribunal emphasised that it would be greatly assisted to hear the evidence of Dr Jobson, to put questions to him and also to hear the evidence of Mr Tonkin, and his reply to the many issues raised during the hearing.  If the Commissioner of Police had demonstrated that all the questions put above to Mr Bagley had been responded to in the positive and that Inspector Corkill had applied his mind to all of the evidence, the Tribunal may have consented to the settlement.  The Tribunal expressed its surprise that Inspector Corkill consented to the reinstatement of the licence without having considered all the evidence before the Tribunal, without having heard the evidence of Dr Jobson and without having submitted the report of Dr Jobson to an expert for advice and analysis.

7. The application for consent orders to be made was therefore dismissed.

1. Issue

1. Can the Tribunal refuse to make consent orders pursuant to s 56 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) if the parties have reached agreement on the content of the settlement?

1. Statutory framework

1. Section 56 provides as follows:

   (1)If the parties agree in writing to settle a proceeding that is before the Tribunal, the Tribunal may make any orders necessary to give effect to the settlement.

   (2)The Tribunal cannot make an order under subsection (1) unless it is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.

   (3)The Tribunal may, with the consent of the parties, vary the terms of an order under subsection (1) if to do so would reflect the intention of the agreement.

   (4)Subsections (2) and (3) also apply to an order under section 52(6) or 54(8).

1. Background

1. The Tribunal refused, on 1 December 2010, the application by the parties for consent orders to be made to give effect to a settlement reached.  The Tribunal provided brief oral reasons for the decision but after Mr P Marsh, counsel for the applicant, suggested the exercise of the discretion was irregular on the part of the Tribunal (he later withdrew the comment), the Tribunal undertook to provide the parties with detailed reasons for its decision.  These are the reasons for the decision.

2. Mr Tonkin, the applicant, seeks review of the decision of the Commissioner of Police to revoke his firearm license.  The matter was part heard when the settlement was reached.  At that stage, the Tribunal had heard evidence over a period of three days involving 10 witnesses.  Two witnesses remain to be heard, namely a psychologist, Dr S Jobson, called by Mr Tonkin as well as Mr Tonkin himself.  The conclusion of evidence will be followed by closing submissions by counsel for the respective parties.

3. Dr Jobson submitted an expert report on 12 November 2010 in which he recommends that Mr Tonkin's license be reinstated.  Dr Jobson based his recommendation on interviews he conducted with Mr Tonkin, witness statements provided to him, interviews with Mr Tonkin's wife and son as well as tests that Mr Tonkin had completed under his supervision.  According to Dr Jobson he has spent approximately four hours in consultation and assessment.

4. At a hearing that took place on 15 November 2010, Senior Constable Bagley requested for the proceedings to be adjourned to enable the Commissioner to seek expert advice in regard to Dr Jobson's report and to possibly call the Commissioner's own expert to give evidence about issues raised in Dr Jobson's report.  The Tribunal consented to Snr Constable Bagley's request and adjourned the proceedings.  The final hearing day for Dr Jobson and Mr Tonkin to give evidence was set for 1 December 2010.

5. On 23 November 2010, the Tribunal received a letter from the Commissioner of Police signed by Senior Constable Bagley in which the Tribunal was informed that the Commissioner had considered Dr Jobson's report; that it had accepted the evidence of Dr Jobson, and that it therefore consented for the review to succeed and the firearm license to be reinstated.  A minute of proposed consent orders signed by Senior Constable Bagley and Mr Marsh for Mr Tonkin was attached to the letter.

6. The Tribunal vacated the hearing of 1 December 2010 and substituted it with a directions hearing to consider the request of the parties for orders to be made to give effect to the settlement.  The Tribunal also ordered the Commissioner of Police to file, prior to, or at the directions hearing, a detailed submission to explain the reason for its decision to consent for the license to be reinstated.

7. The directions hearing took place on 1 December 2010.

8. At the directions hearing, Senior Constable Bagley informed the Tribunal that he had not prepared the detailed explanation of reasons as ordered by the Tribunal since he had only received the Tribunal's order a day or two prior to the hearing.  His explanation was that order may have gone astray due to the absence of some staff.  He nevertheless tabled an internal memorandum signed by Inspector Corkill in which it is recommended by Inspector Corkill that the review be successful and the license be reinstated.

9. Senior Constable Bagley informed the Tribunal that he had nothing more to add to the internal memorandum of Inspector Corkill and that the orders should be made on the basis of the reasoning of Inspector Corkill.

1. Consideration

1. The Tribunal explained to the parties that a request for orders to be made to give effect to a settlement of a dispute does not mean that such a request will automatically be acceded to by the Tribunal.  The Tribunal is not a mere rubber stamp, especially in review proceedings where so much evidence has been heard but with key persons yet to give evidence.

2. The Tribunal has a discretion, pursuant to s 56 of the SAT Act, to consider the terms of settlement, the requirements of the enabling Act, in this matter s 11 of the Firearms Act 1973 (WA) (Firearms Act), the public interest, and to make a decision whether the proposed order should be made.

3. It is especially in a matter that is part heard and so advanced such as the case is in these proceedings where 10 witnesses have given evidence, where the Tribunal must be satisfied that: (a) taking into account of all the evidence before it; (b) considering the witnesses that are yet to be called; and (c) the provisions of s 11(1)(c) of the Firearms Act, that the making of settlement orders are justified and in the public interest. This does not mean that the Tribunal is pre­judging the outcome of the proceedings. It merely means that the Tribunal considers whether in light of the information before it, a settlement along the lines as proposed by the parties, can be justified.

4. The Tribunal explained to Senior Constable Bagley that since these are de novo proceedings, the Tribunal is guided by all the information at its disposal.  If the Commissioner, as original decision-maker, is of the view that proceedings should be concluded and that settlement orders should be made prior to all the evidence being heard, the Tribunal may request the Commissioner to explain why it has come to such a conclusion in the absence of all the available evidence.  This is to ensure that the Tribunal, as final decision­maker, discharges its functions in a proper and responsible manner in order to come to the correct and preferable decision.

5. In its inquiry, the Tribunal put several questions to Senior Constable Bagley so as to establish and understand the basis why the Commissioner had consented to the proposed orders.

6. The key questions the Tribunal put, and the responses of Senior Constable Bagley thereto, can be summarised as follows:

   a)Did the Commissioner submit the report of Dr Jobson to its own expert in psychology or psychiatry for comment or assessment and if so can that assessment be provided to the Tribunal?  Senior Constable Bagley replied that to the best of his knowledge, Inspector Corkill had not submitted the report to an expert employed or retained by the Commissioner for comment or assessment.

   b)Does Inspector Corkill have the expert training or specialist knowledge to assess the methodology employed by Dr Jobson in testing Mr Tonkin and assessing the appropriateness and outcome of the tests?  Senior Constable Bagley replied that to the best of his knowledge, Inspector Corkill had no specialist training or expertise to assess or comment on the methodology used by Dr Jobson.

   c)Has Inspector Corkill had access to the transcripts of evidence heard up to date in the proceedings?  Senior Constable Bagley replied that to the best of his knowledge, Inspector Corkill had not had access to all of the transcripts of the evidence.  In reply to a question by the Tribunal, Senior Constable Bagley confirmed that Inspector Corkill, therefore, was not in a position to take into account the evidence gave during cross­examination and re-examination in formulating his recommendation.

   d)Was Senior Constable Bagley, as representative of the Commissioner during these proceedings, invited by Inspector Corkill to provide an in­house assessment of the hearing to thus far and the evidence heard?  Senior Constable Bagley answered 'no'.  He had not been invited to provide an assessment of evidence heard and had not been consulted prior to the decision of Inspector Corkill that the licence be reinstated on the basis of the report of Dr Jobson.

   e)In light of the evidence thus far and the emphasis placed by Inspector Corkill on the expert evidence of Dr Jobson, would Senior Constable Bagley as counsel for the Commissioner have preferred for Dr Jobson to give evidence, to explain his methodology and to be cross­examined on all aspects of his statement?  Senior Constable Bagley answered emphatically, 'yes'.

7. The Tribunal expressed surprise during the hearing that Inspector Corkill had consented to the firearm licence being reinstated solely on the basis of his assessment of the report of Dr Jobson while in fact on the basis of the information before the Tribunal the following shortcomings existed in the Commissioner's decision-making process; (a) Inspector Corkill had not heard the evidence of Dr Jobson but relied exclusively on an expert report which had not yet been scrutinised in the hearing; (b) Inspector Corkill did not submit the report for internal expert assessment or comment; (c) Inspector Corkill had no personal training or expertise to assess the report or the methodology used by Dr Jobson; (d) Inspector Corkill had not had access to a transcript of all the evidence heard in the proceedings; and (e) Inspector Corkill had not sought the advice or assessment of Senior Constable Bagley who had attended the entire hearing.

8. The Tribunal explained to the parties that key evidence remained to be heard, namely that of Dr Jobson and Mr Tonkin.  In addition to the outstanding evidence, the Tribunal would also benefit from the closing submissions of the representatives since several aspects raised in evidence were not available to the parties when the original statements of issues, facts and contentions were drafted.

9. In light of the emphasis Inspector Corkill has placed on the evidence of Dr Jobson, the Tribunal is of the mind that it is essential that Dr Jobson is given an opportunity to give evidence and to be properly examined.  The Tribunal would then be in a position to weigh up all the evidence before it - in contrast to what Inspector Corkill has done - to come to the correct and preferable decision.

10. The Tribunal therefore exercised its discretion by refusing to make the orders as proposed by the parties.

11. The application for consent orders to be made was therefore dismissed.

Orders

1.The orders as sought by the parties pursuant to the letter of the Commissioner of Police dated 23 November 2010 are refused pursuant to s 56 of the State Administrative Tribunal Act 2004 (WA) on the basis of the information available to the Tribunal.

I certify that this and the preceding [28] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

DR B DE VILLIERS, MEMBER