Casella v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-10-29

REASONS FOR DECISION

On 17 July 2024 Marcello Nello Casella (the Applicant) filed an application with this Tribunal to set aside a Firearms Prohibition Order (FPO) made pursuant to s 73(1) of the Firearms Act 1996 (the Act) on 15 June 2015, and for an extension of time for the lodging of the application. As grounds for the application, the Applicant stated: Seeking leave to extend the time for the lodging of an application to set aside the decision to impose a Firearm Prohibition Order and to then consider the merits of such an application. Noting the original grounds did not concern aggravated firearms matters, that charges relating to the applicant at the time were subsequently amended, and that the applicant has been of good behaviour since the imposition of the order.
On 5 September 2024 the Commissioner of Police, NSW Police Force (the Respondent) filed an Application for Miscellaneous Matters, seeking dismissal of the Applicant's application on jurisdictional grounds: 1) The Applicant is a 'disqualified person' under s 75(1A) of the Firearms Act 1996 (the Act) and is therefore excluded from seeking administrative review of the Commissioner's decision to impose a Firearms Prohibition Order under s 75(1)(f) of the Act. 2) The Applicant has applied for administrative review of the decision on two previous occasions, in 2016 and 2019. Both applications were withdrawn by the applicant and dismissed by the Tribunal pursuant to s 55(1)(a). The Tribunal does not have jurisdiction to reinstate or consider an application that has previously been so dismissed. 3) The application has been filed out of time. Further details on the grounds for the Commissioner's application are provided in the Commissioner's written submissions.
At the hearing of both applications on 29 October 2024 the parties each made oral submissions and provided the Tribunal with written submissions. The Applicant provided the Tribunal with an affidavit which provided a history including his withdrawal of the 2016 and 2019 applications for review, his change in circumstances since 2014, his passion for sports shooting and community contributions. The Respondent filed a bundle of documents in support of their submissions including copies of the FPO dated 25 June 2015, correspondence from the Applicant's then legal representatives dated 21 July 2015 requesting an internal review of the FPO, the Respondent's Internal Review decision of 26 August 2015 affirming the FPO, the Applicant's criminal history, and the withdrawal and dismissal of the Applicant's previous applications for review to this Tribunal in 2016 and 2019.

Legal Principles

The Act provides for the regulation, control and registration of firearms. Section 3 of the Act states: (1) The underlying principles of this Act are - (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms… … (2) The objects of this Act are as follows - … (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms…
Section 73 of the Act allows for an FPO to be made: 73 Firearms prohibition orders (1) The Commissioner may make a firearms prohibition order against a person if, in the opinion of the Commissioner, the person is not fit, in the public interest, to have possession of a firearm. (2) A firearms prohibition order takes effect when a police officer serves a copy of the order personally on the person against whom it is made. (3) The Commissioner may revoke a firearms prohibition order at any time for any or no stated reason.
Under s 74 of the Act it is an offence for a person who is the subject of an FPO to acquire, possess, or use firearms, firearm parts, or ammunition. It is also an offence for a person who is the subject of an FPO to reside at premises where there is a firearm, firearm part or ammunition.
A person may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of a decision to issue an FPO under s 75(1)(f) of the Act. That right of review is limited by s 75(1A) of the Act, which provides: (1A) Despite subsection (1), a person may not apply for a review of a firearms prohibition order made against the person if the person would be required under section 11(5) or 29(3) to be refused a licence or permit (a disqualified person) had the person not been subject to a firearms prohibition order.
Section 11(5) of the Act states: (5) A licence must not be issued to a person who-- (a) is under the age of 18, or (b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or (c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked), or (d) is subject to one of the following in relation to an offence prescribed by the regulations-- (i) a good behaviour bond, whether entered into in New South Wales or elsewhere, (ii) a community correction order imposed in New South Wales, (iii) a conditional release order imposed in New South Wales, or (e) is subject to a firearms prohibition order, or (f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000 .
Clause 5(1) of the Firearms Regulation 2017 (Regulation) sets out the prescribed offences referred to in s 11(5)(b) of the Act. These include: (b) Offences relating to prohibited drugs etc An offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2008, being an offence in respect of which the penalty imposed included any term of imprisonment (whether or not suspended), a community service order, a good behaviour bond or a penalty of $2,200 or more, and committed under - (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction). … (f) Offences involving fraud, dishonesty or stealing An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the penalty imposed included a term of imprisonment (whether or not suspended) for 3 months or more, a community service order for 100 hours or more of community service work, or a good behaviour bond.

Whether the Applicant is a 'disqualified person'

The Applicant was arrested and charged with the following offences on 22 September 2014: 1. Cultivating a prohibited plant (being a large commercial quantity of cannabis) contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW); and 2. Participating in a criminal group / assisting criminal activity - T2 contrary to s 93T(1) of the Crimes Act 1900 (NSW).
Ultimately, those offences were withdrawn and the Applicant entered a plea of guilty to an offence of 'conceal serious indictable offence of another person - T1', under s 316(1) of the Crimes Act 1900 (NSW).
At the time, s 316(1) of the Crimes Act was in the following terms: 316 Concealing serious indictable offence (1) If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.
The Respondent submitted: 28. The circumstances of the concealment offence related to the Applicant knowing that five co-offenders had committed a serious indictable offence and knowing that he had information which might be of material assistance in securing the prosecution of those individuals, failed without reasonable excuse to bring that information to the attention of a member of the police force or other appropriate authority. 29. The serious indictable offence the subject of the charge was, in the case of three of co-offenders, the offence of cultivating a large commercial quantity of a prohibited plant, namely cannabis, and in the case of two of co-offenders, the offence of cultivating a commercial quantity of a prohibited plant, namely cannabis.
On 21 September 2018, the Applicant was sentenced to a term of imprisonment of 8 months. A severity appeal was lodged in the Court of Appeal. On 29 August 2019, the Applicant's sentence was quashed and he was sentenced to imprisonment for 6 months, to be served by way of Intensive Correction Order (ICO).
Relying on Nguyen v Commissioner of Police [2020] NSWCATOD 150 (Nguyen) at [41], the Respondent submitted that the Applicant's offence was an offence involving dishonesty within the meaning of cl 5(1)(f) of the Regulation, following the Appeal Panel's decision in Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23, at [39]-[42], that the approach to determining whether a particular offence is an offence "involving dishonesty" is to examine the elements of the offence, and determine whether any act or omission involved in the offence comes within the ordinary meaning of dishonesty.
The Respondent also submitted that the Applicant's offence was an offence "relating to" prohibited drugs within the meaning of cl 5(1)(b) of the Regulation, because cl 5(1)(b) does not require that the relevant offence be an offence under the Drug Misuse and Trafficking Act 1985, merely that it be "an offence in respect of a prohibited plant… within the meaning of" that Act, and the Applicant's offence involved the concealment of the cultivation of prohibited plants. The Respondent submitted that the penalty imposed on the Applicant of 6 months' imprisonment to be served by an ICO fell within the meaning of cl 5(1)(b) which required a term of imprisonment, whether or not suspended; and that the offence was committed under the law of NSW which is within the required Australian jurisdiction.
The Applicant submitted that he was not a 'disqualified person' within the meaning of the Act and cl 5(1)(b) of the Regulation because the offence under s 316(1) of the Crimes Act 1900 (NSW) (Crimes Act) was not, on its face, an offence "in respect of" a prohibited plant or drug. He also submitted that the offence under s 316(1) of the Crimes Act was not an offence involving fraud, dishonesty or stealing within the meaning of the Act and cl 5(1)(f) of the Regulation, because Nguyen was wrongly decided.
Despite the Applicant's detailed submissions (which I will not repeat here), I am not convinced that Nguyen was wrongly decided. I agree with the Respondent's submissions that, on its face, and on the basis of the elements of the offence, an offence under s 316 of the Crimes Act involves dishonesty. The act of concealing a serious indictable offence must involve dishonesty, within its ordinary meaning. The Act and the Regulation provide that offences involving "fraud, dishonesty or stealing" result in the disqualification of persons from holding licences under the Act, because the regulatory regime relies on the candidness of those subject to its obligations. The Applicant's lack of candour with law enforcement in the context of his s 316 Crimes Act offence could have serious consequences on public safety if replicated in the context of firearm possession and ownership.
On the basis of his conviction of an offence under s 316 of the Crimes Act I therefore agree that the Applicant is a disqualified person within the meaning s 11(5) of the Act, cl 5(1)(f) of the Regulation, and his FPO is therefore not reviewable pursuant to s 75(1A) of the Act.

Whether the Tribunal should extend time

Even if the decision was reviewable, contrary to s 75(1A) of the Act, the application for review made by the Applicant was filed nearly 9 years late. The FPO was made on 15 June 2015. An internal review of that decision was made on 26 August 2015.
Section 55 of the ADR Act provides the Tribunal with jurisdiction to hear an application for administrative review of an administratively reviewable decision. Section 55(2) of the ADR Act relevantly provides that "subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules". The "procedural rules" referred to in s 55(2) are the Civil and Administrative Tribunal Rules 2014 (the CAT Rules). Unless the Tribunal grants an extension under s 41 of the CAT Act, an application under s 75 of the Act must be made by the end of the "default application period".
Pursuant to r 24(4)(a) of the CAT Rules, the default application period is "the period of 28 days after the day on which the internal review is taken to have been finalised" under s 53(9) of the ADR Act, which expired on or around 23 September 2015. This application was instead made on 17 July 2024.
In his evidence the Applicant explained that he first applied to seek review in this Tribunal of the FPO decision on 25 September 2015, but withdrew that application because his solicitors believed he was a 'disqualified person' and would therefore "need to wait until 10 years had passed before I could apply for a firearms licence". Then on 17 October 2019 he again applied for review to the Tribunal of the FPO decision because "my circumstances had changed", but withdrew the application because the Respondent had "asserted the Tribunal did not have jurisdiction". His solicitors wrote to the Respondent seeking a revocation of the FPO on 28 November 2019, which the Respondent responded to on 10 December 2019, stating: Given your client's criminal history and the circumstances surrounding the offences, I am satisfied that he is not fit in the public interest to have access to firearms, firearms parts or ammunition and therefore support the continuance of the FPO.
The Applicant's evidence was that: …not being satisfied with that position, and the Commissioner refusal to revoke the FPO decision, I sought out Senior Counsel's advice as to what my available options were, which I received on 28 June 2024. … Having received Senior Counsel's advice on 28 June 2024, I promptly filed the Application on 17 July 2024.
The Respondent submitted that the Applicant had been represented in relation to both the 2016 and 2019 application. His failure to obtain advice from this particular Senior Counsel (who held a differing view to his previous representation and the Respondent) until mid 2024 could not provide a reasonable basis upon which to extend the time for him to seek review of the FPO decision.
Further, the Tribunal had dismissed both the applications withdrawn in 2016 and 2019 pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (CAT Act), and the Tribunal has previously held that it lacks the power to reinstate proceedings dismissed under s 55(1)(a): see Seven Network v Commissioner of Police, NSW Police Force [2017] NSWCATAD 31 at [11]-[16]; EDC v Children's Guardian [2020] NSWCATAD 261. The Tribunal has also held that it does not have the power to review a decision the subject of dismissed proceedings: Seven Network at [19]-[21].
The Respondent submitted that the intention of the legislative scheme was to allow for an Applicant to have one opportunity to apply for review of an FPO, within 28 days of the order being made. Beyond that, the power to revoke an FPO was exclusive to the Respondent and there was no avenue for review. The Respondent submitted the Applicant was using the proceedings as a collateral attack on the Respondent's decision not to revoke the FPO.
Pursuant to s 41 of the CAT Act, the Tribunal has a discretion to extend the time in which Applicant can file an application. The principles relevant to the exercise of the discretion in s 41 of the CAT Act were set out in Daoud v Chief Commissioner of State Revenue [2013] NSWCATAD 53 (Daoud) at [14] to [16]: 14. Accordingly, the discretion to extend time is broad and unfettered. However, it must be exercised judicially and having regard to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 15. The grant of an extension of time is not automatic. The discretion to extend time is given for the sole purpose of enabling the Tribunal to do justice between the parties. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. It is also necessary to consider the prospects of the Applicants succeeding in their application. In order to justify the Tribunal extending the time, there must be some material upon which the Tribunal can exercise its discretion: see Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2] per McHugh J. and the authorities referred to therein. See also Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16] and Chand v Rail Corporation of New South Wales No 3 [ 2010] NSWADTAP 11 at [20]. 16. Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted.
In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22], applying the same principles to an appeal brought out of them, the Appeal Panel stated: (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
The onus is on the Applicant to establish that the Tribunal should exercise its discretion to extend the timeframe within which to seek review: Choy v Rugsat [2020] NSWCATAP 88 at [27].
The Applicant submitted the following in support of the extension of time being granted: a. the delay in filing these proceedings was due to the Applicant's original misunderstanding that he was a disqualified person under the Act and that he was unable to lodge a fresh identical application; b. once the above misunderstanding was corrected, the Applicant promptly lodged the Substantive Application; c. The explanation for this delay, as above, militates against a finding that the length of the delay is significant; d. The Applicant has at least a claim with reasonable prospects that demonstrates he is fit and proper to hold a firearms by dint of the following: i. the sentences imposed upon the Applicant all reflect a lower objective seriousness in relation to the relevant offences; ii. a majority of the offences are historical; iii. the Applicant since his last conviction has demonstrated that he is a reformed member of the community; iv. the Applicant holds a position of great responsibility in the Business; v. the Applicant and the Business make significant contributions to the community; vi. the reason for wishing to have the FPO Decision revoked is because the Applicant wishes to reengage with sports shooting with his family; e. Despite several requests to revoke the FPO Decision, the Commissioner has refused to do so; f. Strict compliance to the current rules of the Tribunal would work an injustice to the Applicant in circumstances in respect of a continuation of the FPOR Decision and where there is no identifiable prejudice to the Commissioner; g. The continuation of the FPO Decision will result in arbitrary searches to take place on the Applicant's property for an indefinite period.
In Commissioner of Police, New South Wales Police Force v Holdsworth [2019] NSWCATAP 167 (Holdsworth) the Appeal Panel considered the Tribunal's 32 year extension of time for an application to review the making of an FPO. There, the original Tribunal had granted the extension of time on the basis that the Applicant had forgotten that he was subject to an FPO, didn't really understand the consequences of the FPO at the time the order was made, didn't know that he could bring an application for review of the FPO, had limited education, and had no legal advice available to him at that time. The Appeal Panel held at [47] to [51] that consideration of the Applicant's lack of understanding of the legal ramifications of the FPO was an error of law in the exercise of the discretion to extend time.
I do not accept the Applicant's submission that the delay in these proceedings was due to the Applicant's "original misunderstanding". As discussed above, the Applicant was legally represented and the fact that he has now obtained an advice from a Senior Counsel that differs to the previous legal advice he received does not amount to a "misunderstanding". There is also a significant delay by the Applicant in seeking that advice from Senior Counsel. On his own evidence, even putting aside the application and advice he received in 2016, he was last informed in 2019 by his legal representation and the Respondent of the position he currently militates against. He did not obtain Senior Counsel's advice to the contrary until more than 4 years after that time. The length of the delay and the reason for the delay count heavily against the Tribunal exercising its discretion in favour of granting the extension of time.
The Applicant's counsel submitted that because the Applicant had not been cross-examined on his affidavit, the Respondent could not argue against the extension of time being granted. The Respondent submitted in response that there was no contrary or adverse finding of fact being invited by the Applicant's evidence, so his lack of cross examination was not an issue. I agree with the Respondent. I accept the Applicant's evidence, but I do not agree that his evidence provides sufficient justification for the length of delay in issue. Nor do I accept that the Applicant's explanation provides a sufficient reason for the delay, in circumstances where he was legally represented on both occasions when he previously made applications to the Tribunal for review of the same FPO, and then withdrew them.
As stated in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]: …In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195.
It cannot be said that the Applicant suffers an injustice by the time limit being imposed in circumstances where he has made the same application for review on two previous occasions, and has withdrawn those applications.
I accept that there was no specific prejudice identified by the Respondent in relation to the delay caused by the Applicant. However, I agree with the Respondent's submission that there is a strong public interest in not allowing lengthy extensions of time and refer back to the principles expressed above in Daoud at [16], that "time limits should generally be strictly enforced unless the interests of justice require that the extension be granted". Whilst I accept that the Applicant suffers various consequences as a result of the maintenance of the FPO, including being unable to participate in sports shooting activities and having his property searched by the NSW Police, this prejudice is caused by the imposition of the actual FPO, not the Tribunal's failure to extend time in which to bring an application for review.
To the extent that it is necessary to do so, I also find that the Applicant has no prospects of success in seeking review of the FPO, for the reasons expressed above. The Applicant remains a disqualified person. The Applicant's submissions in relation to his fitness and propriety, and his contributions to the community, are irrelevant in the circumstances. The Applicant's submissions in relation to the oppressive nature of an FPO and the evidence that the Applicant's residence continues to be regularly searched as a result of the FPO are also irrelevant.

Conclusion

For the reasons discussed above, I do not exercise the Tribunal's discretion to extend the time within which the Applicant can file an application for review of the FPO made 15 June 2015.
The Applicant remains a disqualified person within the meaning of s 75(1A) of the Act and the Tribunal has no jurisdiction to consider the Applicant's application for review filed 17 July 2024. The Tribunal therefore dismisses the proceedings on the basis that it does not have jurisdiction to hear and determine the Applicant's application.

Orders 1. The proceedings are dismissed for want of jurisdiction.

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: 13 January 2025

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