Clark v Chief Commissioner of Police [2010] VSC 144

1 The plaintiff makes application by originating motion dated 18 February 2010 for a declaration pursuant to s 189(1) of the Firearms Act 1996 ('Firearms Act') that the applicant be deemed not to be a prohibited person.[1]

2 At present Mr Clark is a prohibited person as defined under the Firearms Act by reason of an order made by the Magistrates' Court of South Australia on 17 September 2001. Section 3 of the Firearms Act at the time of the South Australian order defined prohibited person as including a person in relation to whom not more than five years has expired since being subject to an intervention order under s 4 of the Crimes (Family Violence) Act 1987 or an order of a corresponding nature made in another State or Territory. Section 17 of the Firearms Act provides that the Chief Commissioner of Police shall not issue a longarm or handgun licence to a prohibited person. Section 189 of the Act provides that a person who has been subject to an intervention order or comparable order within the last five years may apply to the court for a declaration that the person is deemed not to be a prohibited person by virtue of being or having been subject to such an order.

3 The application is made in the circumstances set out in Mr Clark's affidavit of 18 February 2010:

a) The applicant is currently 38 years old and resident in Shepparton, Victoria. He has never held a gun licence in any Australian State or Territory, and has not received any criminal conviction. He is currently undertaking home duties and caring for his three children, while living with Ms Bluger, his de facto spouse and mother of the children.

b) The applicant was resident in Adelaide from 1977, where he worked as an interstate truck driver for 16 years after leaving school. He met Ms Bluger in 1997. They moved in together shortly afterwards, and had two children during this period who are now aged 13 and 9.

c) Following a verbal domestic dispute in September 2001, the applicant moved to Shepparton. Ms Bluger applied to the Magistrates' Court of South Australia for a Domestic Violence Restraining Order against the applicant for herself and the couple's two sons. The order was granted ex parte on 17 September 2001.

d) The applicant and Ms Bluger reconciled in or about March 2002, whereupon Ms Bluger and the two children moved to Shepparton to live with the applicant. Another child, now 4 years old, was born.

e) Around 2007 the applicant developed an interest in sporting shooting. Aware that a firearms licence was required, the applicant completed a Firearms Training Course arranged through the Shepparton Police and passed the required test. He made a postal application for a licence to the Licensing Service Division of Victoria Police. The application was refused in writing on 21 June 2007.

f) Following advice from the Licensing Service Division the applicant applied to the Magistrates' Court of South Australia to have the order that named him a prohibited person lifted. The order was revoked on 30 August 2007 and in September of the same year the applicant was advised that this was sufficient for him to no longer be considered a prohibited person in South Australia. However, as advised by the Licensing Service Division, the applicant would have to wait another five years after revocation of the order to no longer be considered a prohibited person in Victoria.

g) The applicant initially decided to wait those five years, but has since sought legal advice and has now decided to pursue an application for declaration.

4 The Victorian Government Solicitor's Office has advised the Court that the Chief Commissioner of Police, having received notice of the application of Mr Clark, does not oppose it and does not seek to be heard on the application pursuant to s 189(2B) of the Firearms Act.

5 In Pickford v Commissioner of Police [2] Nettle J stated:

It appears to me that the [purpose of the] section was to enable a person to be relieved of the consequences of being a prohibited person when, viewed objectively, the circumstances which gave rise to that status, or developments since, or both in combination, impel the conclusion that it is not appropriate or desirable that the person be afflicted with the consequences of being a prohibited person.

6 In the present case I am satisfied that Mr Clark's application should be granted.

7 It is first to be observed that the restraining order founding the basis of his current status was made ex parte and without an expiry date. It has since been revoked. Secondly, the relationship within the context of which the restraining order was made resumed in March 2002 and it appears has since flourished. Mr Clark and his partner have had a further child in the intervening eight years and his partner is aware of and consents to the current application. Any rationale for the restraining order has thus itself ceased. Further, Mr Clark has no history of gun-related or other convictions for violence or indeed other criminal conduct. Finally, the application is not opposed by the Chief Commissioner who in effect represents the public interest in this matter.

8 Accordingly I propose to make a declaration that pursuant to s 189 of the Firearms Act the plaintiff, Bret Joseph Clark, is not by reason alone of a restraining order made against him by the Magistrates' Court of South Australia on 17 September 2001 a prohibited person for the purposes of Div 4 of the Firearms Act.

1. [1] Section 189(1) provides:

A person who is a prohibited person referred to in paragraph (c)(i) of the definition of prohibited person in section 3(1) may apply to the Court for a declaration that the person -

(a) is deemed not to be a prohibited person by virtue of being or having been subject to a final order of a kind referred to in that subparagraph; or

[2] [2002] VSC 435 (unreported, 10 October 2002, Nettle J), [6].