Blacktown Pistol Club Ltd v Commissioner of Police, NSW Police Force

Supreme Court of NSW|2013-07-24

reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Respondent seeks leave from the Tribunal to re-open its case for the purpose of presenting additional evidence. The Application is made at a time when the hearing on the substantive case has concluded but the Tribunal's decision has not yet been delivered. 2If leave is granted to reopen its case, the Respondent seeks to adduce evidence contained in the statement of Senior Constable Wayne Jackson dated 2 May 2013.

Background to the Application 3The Applicant has been in operation at its present location since 1963. Its Range operations are regulated by of the Firearms Act 1996 ("the Act"), and the Firearms Regulation 2006 ("the Regulation"). The decision under review relates to the Range Danger Area of the Applicant's Range. In general terms, a Range Danger Area is an area surrounding a range in which it could be expected that some danger might arise from ammunition fired from the range. A Range Danger Area is sometimes called a Range Safety Template or Fallout Zone. 4The Range Danger Area of the Applicant's Range is in land that is privately owned by Air Services Australia. The Applicant does not lease the Range Danger Area, although the grounds of the Club and the Range itself are on land that is leased from Air Services Australia. 5On 31 August 2012 officers from the Firearms Registry carried out an inspection of the Applicant's range. They found a large hole cut in the fence wire at the north-western corner of the Applicant's range complex. The also observed a number of children on foot and motorcycles either entering or in the northern end of the Range Danger Area. 6On that same day a delegate of the Commissioner of Police, Range Inspector Jenkins, determined to impose a condition on the Applicant's range approval pursuant to clause 87 of the Regulation. The condition was that there be "no live firing until such time as procedures are put in place to ensure no member of the public is within the range danger area whilst shooting is in progress". 7The Applicant has applied to the Tribunal for review of the determination to impose that condition. The Applicant is able to continue its operations subject to conditions imposed by the Tribunal. The conditions required improved signage and monitoring of access to the Range and the Range Danger Area. The Applicant has introduced the use of two security guards as "lookouts" but asserts that this is impractical as a long-term option for the Club. It has decreased the amount of time the Range is open due the financial commitment of having to employ those guards.

The Respondent's Position 8The Respondent has concerns in relation to the Applicant's ability to control the Range Danger Area. It has previously filed evidence of advice that it was given by the Applicant's President, Mr Craig Ginger, that the Applicant had "control" of the Range Danger Area. The Applicant's Vice-President, Mr Allan Harriman, subsequently indicated that that was not the case. The discrepancy was explained on the basis that Mr Ginger had understood that the Applicant only needed to control the immediate area adjacent to its boundaries. 9The Respondent contends that if the Applicant lacks control of the Range Danger Area then the use of security guards, as lookouts, would be futile. 10In December 2012 the Respondent sought information from the Applicant in regard to whether Air Services Australia, as owner of the Range Danger Area, had provided or would provide the Applicant with a "permissive shooting rights" letter indication that the Applicant has permission to enter and use the Range Danger Area. 11Senior Constable Jackson has subsequently checked the progress of the permissive shooting rights letter and the statement that the Respondent seeks to adduce addresses that issue. 12The Respondent submits that leave should be granted for a number of reasons. It submits that:

The issue of whether the Applicant has a "permissive shooting rights" letter is fundamental to the determination of its application. It submits that: (a) if the Applicant has no access to the Range Danger Area, it cannot "control" the use of such area. The Respondent contends that it is no answer to say that persons entering the Range Danger Area will be committing a trespass, whether civil or criminal. Nor is it an answer to say that there is no legislative requirement for such letter. The Respondent's evidence is that children and young persons frequent the Range Danger Area; (b) the Manager of the Firearms Registry, Mr John Howcroft had raised the issue of the Applicant lacks control of the Range Danger Area with Mr Harriman on 21 September 2012; (c) Having previously relied upon advice by Mr Ginger to the effect that the Applicant had "control" over its Range Danger Area, the statement that the Respondent seeks to adduce is relevant additional evidence.
While the requirement for a permissive shooting rights letter is not expressly set out in legislation, it is required by the Respondent to confirm that the Applicant "has control of the land that they shoot over". The Respondent points to the express requirement of clause 86(3)(d) of the Regulation, which provides: "86 Application for approval of shooting range ... (3) The Commissioner must not grant an approval unless: ... (d) the applicant has control over the use of the shooting range ..." The Respondent submits that in this context, the "use" of the shooting range cannot be confined to control over the range only for at least two reasons. First, textually, the ordinary meaning of "control over the use of the shooting range" is broader than "control over the shooting range". Secondly, even if there were any ambiguity about the meaning of those words (and the Respondent submits that there is not), the construction that would better promote the purpose or object of the Act and Regulation must be preferred. That is, the public interest in ensuring public safety is paramount and the Applicant's responsibility does not stop at the edge of the shooting range - it extends to the Range Danger Area.
The need for finality of these proceedings. The Respondent submits that the statement that it seeks to adduce supports the position that the Respondent will either require that shooting cease on affected ranges pending renovations or revoke the range approval.

The Applicant's Position 13The Applicant opposes the Respondent's application for leave to re-open its case. It submits that the attempts by the Respondent to re-open its case and present what it says is "new evidence" has taken the Applicant by surprise and has caused embarrassment and is prejudicial to it. 14It submits that the evidence regarding the issue of a permissive shooting rights letter is not "new evidence" of which the Respondent has only become aware recently. The Applicant contends that this information was available to Senior Constable Jackson as early as 24 November 2012. The Respondent therefore had ample opportunity to adduce further evidence, either in Senior Constable Jackson's statement of 3 December 2012, at the further hearing of the matter on 19 December 2012 or in submissions to the Tribunal that were filed on 31 January 2013. 15The Applicant further submits that the Respondent has prejudiced any opportunity for the Applicant to obtain a permissive shooting rights letter from Air Services Australia. It submits that Senior Constable Jackson has acted inappropriately and unfairly to the Applicant in the manner in which he has corresponded with Air Services Australia. 16The Applicant contends that there is no legislative requirement for a permissive shooting rights letter. It is simply a guideline set by the Commissioner of Police for new ranges, not existing ranges such as the Applicant's range. The Applicant has been in existence at its current location for well over 30 years. 17The Applicant also submits that the evidence that the Respondent seeks to adduce is not fundamental to the main issue in the case and that it would not affect the outcome of the case. It argues that if that were to be the case the Respondent would have advised the Applicant at the very outset that the need for a permissive shooting rights letter was required at the time it initially suspended all shooting activities on the Range. The Respondent did not raise that issue when the Applicant sought an immediate stay of that decision in the Tribunal on 4 October 2012. Again, the Respondent did not raise the issue during the entire course of the proceedings or in submissions that were filed on 31 January 2013. 18The Applicant further submits that the Respondent has not produced sufficient reasons as to why the evidence was not presented during the course of the hearing, despite it being known to them at the time. It submits that Senior Constable Jackson took a deliberate tactical decision to contact Air Services Australia on 30 April 2013 and that it was not an oversight, error or misunderstanding. 19The Applicant argues that it has been affected by these proceedings to the point of it becoming financially unviable should a determination not be made at the earliest available opportunity following the hearing of evidence and submissions. It submits that if the Respondent is able to re-open its case it would unduly prolong the proceedings and incur additional expense. 20The Applicant submits that fairness and the interests of justice would be better served by rejecting the Respondent's application to re-open its case.

Consideration 21The Tribunal's procedural power that are relevant to the Respondent's application to re-open its case are set out in section 73 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). Section 73 provides: " 73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and ... 22I am satisfied that section 73 of the ADT Act gives the Tribunal the discretionary power to allow a party to re-open his or her case, even after the hearing has concluded and the Tribunal's decision has been reserved, provided it does so in accordance with equity, good conscience and the substantial merits of the case. For a discussion of various relevant authorities see French v Sydney Turf Club Ltd [2002] NSWADT 24 and Z v University of A, Dr D and B (No 6) [2003] NSWADT 260. 23The question of whether a party should be permitted to re-open its case to adduce further evidence is essentially one for the discretion of the Tribunal. The guiding principle in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 per Clarke JA at 478. 24In the High Court decision in Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Brennan, Dawson, Toohey and Gaudron JJ stated at paragraph [32]: " 32. It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application (7) Barker v. Furlong (1891) 2 Ch 172, at p 184; Hughes v. Hill (1937) SASR 285, at p 287. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete (8) As, for example, in Watson v. Metropolitan (Perth) Passenger Transport Trust (1965) WAR 88; Murray v. Figge (1974) 4 ALR 612. or one in which reasons for judgment have been delivered (9) As, for example, in In re Scott and Alvarez's Contract (1895) 1 Ch 596. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side (10) As suggested by Sheppard J. in Joyce v. G.I.O. (N.S.W.) reported in Ritchie's, op cit, vol.2, pp 8551-8552. But cf. Watson v. Metropolitan (Perth) Passenger Transport Trust; Murray v. Figge; Hughes v. Hill. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. But those considerations bearing on re-opening are not decisive of the question whether, a matter having been re-opened by reason of error, further evidence can be called. 25The principles were more recently discussed in N M Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 1561 at paragraphs [24] - [28]. 26In French v Sydney Turf Club Ltd, at paragraph [43], the Tribunal listed a number of relevant factors that it considered should be taken into account when exercising the discretion to re-open a party's case, in circumstances where the hearing has concluded but the Tribunal's decision is reserved. The Tribunal stated: 43 Based on the decided cases and s 73 of the Tribunal Act, we consider that relevant factors to take into account in the exercise of the Tribunal's discretion to re-open a party's case, in circumstances where the hearing has concluded but the Tribunal's decision is reserved, include: -The nature and relevance of the proposed additional evidence. -The extent to which it could affect the outcome of the case. -Whether the evidence is important or peripheral to the main issues in the case. -The reasons why it was not presented at the hearing (if known) eg, whether it was overlooked, the result of error or misunderstanding, or a deliberate tactical decision. -The nature and extent of the surprise, embarrassment and prejudice (if any) to the opposing party. -Whether additional costs would be incurred by the opposing party. If so, to what extent. -Whether reception of the evidence would unduly prolong proceedings and / or require witnesses to be recalled or new evidence to be gathered by the opposing party. -The extent to which fairness and the interests of justice would be better served by allowing or rejecting the evidence. 27As noted above, the evidence that the Respondent seeks to adduce is in regard to the issue of whether the Applicant has control over the Range Danger Area. In my view that issue is fundamental to the outcome of the case. It is not merely peripheral to the main issues. A "permissive shooting rights" letter is relevant to that issue in that it would clarify the extent of the Applicant's access to and control over the Range Danger Area. 28The Respondent's explanation for why the evidence was not presented during the course of the hearing is not strong. However, there is nothing to suggest that the Respondent failed to present the evidence at the hearing because of a deliberate tactical decision. It contends that the evidence was not available at that time. 29It is common ground that the Respondent raised the issue of the Applicant's control of the Range Danger Area in September 2012. It was therefore open to the Respondent to adduce evidence prior to the hearing in December 2012. Similarly, it was open to the Applicant to adduce evidence in regard to its compliance with clause 86(3)(d) of the Regulation. 30I accept that some embarrassment and prejudice would flow to the Applicant if the Respondent were granted leave to reopen its case. It would prolong proceedings and this would have consequences for the Applicant at both a financial level and at the practical level of its ability to remain in operation. 31If the Respondent is not granted leave to reopen its case, the potential exists for further action to be taken against the Applicant's range approval on the basis of its assertion of non-compliance with clause 86(3)(d) of the Regulation. In my view, the need for finality is best addressed by allowing the application. 32I accept that the Applicant's ability to obtain a permissive shooting rights letter from Air Services Australia is affected but I do not agree that any opportunity do so is necessarily fatally prejudiced. I am not aware that negotiations between the Applicant and Air Services Australia have been exhausted in that regard. 33In my view, compliance with clause 86(3)(d) of the Regulation is fundamental to the public interest in ensuring public safety. If the Respondent were granted leave to reopen its case the Applicant would have an opportunity to respond to the issue of its compliance with the clause. It could also further explore the question of its ability to obtain a permissive shooting rights letter from Air Services Australia. 34In my view, the interests of justice are better served by allowing the application so that these issues can be further addressed. 35In order to ensure that the time needed to finalize the matter is minimised, the parties are invited to attempt to agree on a timetable for the further progress of the matter. If that is not possible, the matter will be listed for further Directions Hearing on 8 August 2013 at 9.30am.

Order Leave is granted to the Respondent to reopen its case in regard to adduce further evidence in the statement of Senior Constable Wayne Jackson dated 2 May 2013.

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: 24 July 2013

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