Barden v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-05-10

REASONS FOR DECISION

The Applicant, Bradley Barden, seeks merits review of the decision of the Respondent to refuse his application for a category AB firearms licence under the Firearms Act 1996. The decision was made on 20 September 2021, and the letter of refusal was sent by post to the address the Applicant provided on his licence application. The Applicant sought internal review but his request was not received until 23 December 2021. On 24 December 2021 the Respondent informed the Applicant's solicitor that it declined to consider the request for internal review as it was out of time. On 1 March 2022, the Applicant filed an application for review by this Tribunal. On 12 April 2022, at the direction of the Tribunal, the Applicant filed an application under s 55(4)(a) of the Administrative Decisions Review Act 1997 (ADR Act) for an extension of time to lodge the Application for Review.

Relevant legislative provisions

Section 53 of the ADR Act sets out the general rule that an application for an internal review of an administrative decision is to be made within 28 days of the decision.
Section 55 of the ADR Act governs the manner in which applications for review by the Tribunal can be made, and provides, relevantly: … (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the 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 administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. (5) 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 (4), 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 (4)(a) 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.

Evidence

The Applicant's solicitor provided an annexure to the application under s 55(4)(a) of ADR Act for an extension of time. There he wrote that when the refusal decision was sent to the Applicant he was away contract harvesting, and that he was several hours from his home for the entire 28-day period after the decision was sent to him. It was not until 25 October 2021, that the Applicant received a copy of the decision. That day the Applicant contacted the solicitor, and an appointment was made for 3 days hence. The solicitor wrote on the application that "due to workloads, delegations and confirming instructions" the application was then not lodged until 22 December 2021. The annexure did not address the delay in lodging the Application for Review by the Tribunal.

CONSIDERATION

Section 55(3) of the ADR Act provides that, if the Applicant was entitled to seek an internal review of the administratively reviewable decision, an application to the Tribunal may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised.

Did the Applicant duly apply for an internal review?

The Applicant was entitled to seek an internal review of the Respondent's decision under s 53(1) of the ADR Act. The internal review request was required to be made within 28 days after being notified of the making of the decision: s 53(2)(d). The Respondent's decision to refuse the Applicant's licence application was notified to the Applicant by letter dated 20 September 2021. There, the Applicant was informed of his review rights.
The Applicant was therefore entitled to apply for internal review for 28 days after that notification, that is, until about 18 October 2021. However, it was not until 22 December 2021 that the Applicant's solicitor sought internal review of the refusal decision.
The application for internal review dated 22 December 2021 did not set out the circumstances of the Applicant not receiving the refusal until 25 October 2021 and it was only subsequently, in his Application for Review, the Applicant wrote that that he did not receive the notification of refusal of his licence application until he returned from harvesting activities on 25 October 2021.
I accept that the Applicant may not have received the letter of refusal until 25 October 2021, in which case, the 28-day period for lodgment of the internal review application expired on 22 November 2021. The application for internal review, however, was not lodged until 22 December 2021, which was over one month late. As discussed above, I am prepared to accept that he did not receive the decision until 25 October 2021. It should be noted that the Applicant's request addressed the substantive issue only (albeit in brief terms) and there was no acknowledgment that the request was out of time nor any explanation as to why it was only then being made. Perhaps it is unsurprising that the Respondent was disinclined to consider an application that was made so late when there was no explanation at that time for the delay. While the Applicant was under no obligation to supply more information other than just request the internal review, I think to adopt such a course to have been naïve. I do not consider that the Applicant, in failing to make the application for internal review until a month after the statutory time frame set out in s 53(2)(d), had "duly applied" for an internal review. While s 53(2)(d) also foreshadows that the Respondent may extend the time for lodgment of an application for internal review, there is no obligation to do so. The Applicant did not "duly lodge" an application for internal review.

Lodging an application for review without first duly lodging an application for Internal Review

Section 55(4)(a) of the ADR Act provides that the Tribunal may deal with an application for review of an administratively reviewable decision even though the applicant has not duly applied for an internal review if the Tribunal is satisfied that the applicant made a late application for the internal review in circumstances where the reviewer unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
Section 55(4)(b) of the ADR Act provides that the Tribunal may also deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
As can be seen, both the alternatives to the general rule require, as a starting point, that the Application for Review by the Tribunal be made within a reasonable time following the administratively reviewable decision.

Was the application to the Tribunal was made within a reasonable time following the administratively reviewable decision?

Section 55(5) provides that in considering whether an application to the Tribunal was made within a reasonable time the Tribunal is to have regard to the time when the applicant became aware of the making of the decision, the period prescribed by s 53 for the lodging of an application for an internal review, and such other matters as it considers relevant.
On 24 December 2021, the Respondent informed the Applicant's solicitor that, as the statutory period for lodgment of an application for internal review had expired, the request to conduct an internal review was refused. The Application for Review was not lodged in the Tribunal until 1 March 2022 which is over five months after the decision to refuse the firearms licence application, and, on the Applicant's evidence, about four months after he received the decision and had spoken to his lawyers. Further, it was lodged over two months after the application for internal review was rejected. The solicitor's explanation that the delay occurred "due to workloads, delegations and confirming instructions" and not seen until seen until 18 January 2022 is unsatisfactory and does not, in my view, adequately explain the significant delay. Unfortunately, before me, there was no additional evidence which might have explained the delay. As SM Leal discussed in Addison v Commissioner of Police, NSW Police Force [2019] NSWCATAD 99 at [46], referring to Bassal v Commissioner of Police [2017] NSWCATAD 276 that the Tribunal in that case had noted at [69] that while Jones v Dunkel (1959) 101 CLR 98 does not apply in NCAT proceedings, a failure to lead evidence does impact on the case that is presented to the Tribunal.
I consider that the evidence demonstrates that the application to the Tribunal was not made within a reasonable time following the decision to refuse the Applicant's licence application. Consequently, as the Applicant's circumstances do not come within either s 55(4)(a) or (b) of the ADR Act, his application for an extension of time is refused.
It is, of course, open to the Applicant to make a further application to the Respondent for the firearms licence he seeks.

CONCLUSION 1. The application under s 55(4) of the Administrative Decisions Review Act 1997 for an extension of time to lodge the Application for Review is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2022

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