Commissioner of Police, New South Wales Police Force v Holdsworth

Leave to appeal - Decision

1. In our view, leave to appeal should be granted. There are several reasons for this conclusion.
2. First, the length of the extension and the circumstances in which the application to extend time was made raise issues of public importance and principle.
3. Secondly, the Reasons disclose errors in the ultimate findings of fact which mean that the exercise of discretion to extend time has miscarried.
4. Thirdly, while the decision is interlocutory, it has the effect of allowing Mr Holdsworth to apply for a review of a decision made 32 years ago and to bring evidence of what has occurred during that time.

Appeal - Submissions

1. The Commissioner of Police sought to rely on amended grounds of appeal filed 6 May 2019. Leave was given to amend the grounds of appeal at the hearing on 10 May 2019. These amended grounds were: 1. failure to take into account a material consideration - evidence that Mr Holdsworth forgot about the FPO; 2. material error of fact - whether Mr Holdsworth understood that the FPO prevented him from owning firearms; 3. irrelevant considerations - whether Mr Holdsworth was aware of the long-term consequences of the FPO: Reasons at [63]; and 4. error of law - misconstruction of the statute.
2. In relation to the last ground, the Commissioner of Police said: 1. the Tribunal erroneously found that Mr Holdsworth had no alternative remedy in relation to the continuation of the FPO other than an application under s 75(1) of the Firearms Act 1996 (NSW); 2. the Tribunal failed to observe the limits of the statutory review jurisdiction conferred by s 75(1) of the Firearms Act, NCAT Act and the Administrative Decisions Review Act 1997 (NSW) (ADR Act); 3. the Tribunal misconstrued the temporal sequence of the mechanisms for the review, variation or revocation of the FPO provided by ss 73(3) and 75(1)(f) of the Firearms Act; and 4. the Tribunal failed to construe the relevant legislation with appropriate regard to the principle of finality.
3. Consequently, determination of the public interest was based on legal errors and/or the Tribunal had regard to irrelevant considerations and failed to consider relevant considerations.
4. In relation to the findings of fact and the Commissioner of Police's challenge to the exercise of discretion, Mr Holdsworth says the Tribunal determined that he forgot about the FPO and did not understand the legal ramifications of it. He had limited education and did not have recourse to legal advice, having only first become aware of the FPO in 2017.
5. Mr Holdsworth submitted that the Tribunal's finding at [66] of the Reasons, namely that after being served the FPO he not know of its existence until 2017, is not a finding contrary to Mr Holdsworth's evidence. Here, Mr Holdsworth submits there is a distinction between an order prohibiting possession of weapons and being prevented from holding a firearms licence. "A vague understanding held by Mr Holdsworth is not enough to elevate that matter to a material error of fact".
6. Mr Holdsworth made a similar submission in connection with the Commissioner of Police's submission concerning [71] of the Reasons, which Mr Holdsworth erroneously referred to his written submissions at para 69 as [77] of the Reasons.
7. In oral submissions, at the hearing of the appeal, the Commissioner of Police's Counsel referred to particular findings of the Tribunal and the evidence recorded in the Reasons and said that the evidence established Mr Holdsworth had knowledge of the FPO. After the hearing, the Commissioner of Police filed written submissions with leave, referring to authorities concerning awareness of legal rights and the ability to obtain advice in the context of an application to extend time. These authorities were to support a contention that Mr Holdsworth had sufficient information as to the existence of the FPO and the right of challenge and the reasons offered for the delay were therefore insufficient to justify an extension of time in the present case.
8. Mr Holdsworth filed written submissions in response to the Commissioner of Police's further submissions. He said the authorities referred to by the Commissioner of Police did not deal with the matter in question, namely whether the absence of knowledge of legal rights was a sufficient reason to explain any delay in exercising those rights. As to the decision of Re Estate of Henry Basil Photios [2018] NSWSC 1414, Mr Holdsworth says it "highlights … that the explanation for delay is relevant but not necessarily a decisive factor: Photios at [75].

Appeal - Decision

1. The application to extend time concerns a decision made in 1986 under the then Firearms and Dangerous Weapons Act 1973 (NSW) (repealed) (1973 Act). At that time, there was a right of appeal under s 24 of the 1973 Act to the Local Court. The time to appeal was 21 days from when "the decision was notified to the person entitled to appeal": s 24(3) of the 1973 Act.
2. Subsequently, the Firearms Act 1989 (NSW) (repealed) (1989 Act) was enacted followed by the present Firearms Act.
3. Under the transitional provisions of the 1989 Act, a firearms prohibition order made under section 69 of the 1973 Act was to be treated as a firearms prohibition order made under s 39 of the 1989 Act, for which there was also a right of appeal to the Local Court: Sch 1 cl 2. An appeal, whether or not outstanding under the 1973 Act, was to be dealt with under Part 5 of the 1989 Act.
4. Upon commencement of the Firearms Act, a firearms prohibition order made under section 39 of the 1989 Act is taken to be a firearms prohibition order made under the Firearms Act: Sch 3 cl 11. Any appeal pending under Part 5 of the 1989 Act is (subject to one exception not presently relevant) taken to have been made under Part 8 of the Firearms Act: Sch 2 cl 10. Again, the right of appeal was to the Local Court, the time to appeal being 21 days: cl 8 Firearms Regulation 1990 (NSW) (repealed) (1990 Regulation).
5. Pursuant to s 75(1)(e) of the Firearms Act, a person is entitled to apply for administrative review of a firearms prohibition order made against that person. Neither party contended that an application for review could not be made to the Tribunal in respect of the FPO under s 75 of the Firearms Act, despite the fact the FPO was made in 1986. Further, neither party submitted that the Application could only be made after an application had been made for internal review under s 53 of the ADR Act, no such application having been made: cf s 55(3) of the ADR Act. At the time the 1986 Decision was made, there was no procedure for internal review. Consequently, Mr Holdsworth was not "entitled to seek internal review" as that expression is used in s 55(3) of the ADR Act.
6. If such an internal review were possible, the Tribunal could have nonetheless dealt with the Application under s 55(4) if satisfied of the matters in that provision.
7. The relevance of this analysis is that, because the provisions in respect of internal review did not apply, the requirement to make an application under s 55(4) within a reasonable time does not apply. Rather, the "default application period" of 28 days prescribed by r 24((4)(b)(ii) of the Civil and Administrative Tribunal Rules, 2014 (NSW) (Rules) applies to the Application, such period to be calculated from "the day on which the [Mr Holdsworth] was notified of the making of the administrative reviewable decision".
8. In making its decision, the Tribunal does not identify any relevant time limit within which the Application was to be brought. Rather, the Tribunal proceeded on the basis that it has power to extend the time under s 41 of the NCAT Act.
9. The Reasons record the following evidence and findings: 1. The FPO was served by Senior Constable Parrington, a notation on the FPO indicating that at the time of service the police officer "explained section 24 of the [1973 Act]" and that Mr Holdworth "indicated to [the police officer] that he had no intention of lodging an appeal": Reasons at [16]; 2. The affidavit of service of the FPO, which did not refer to a conversation concerning the right of appeal, stated the FPO had been served at Alstonville Police Station: Reasons at [17]. The FPO was made 5 February 1986 and the affidavit of service sworn 17 March 1986 states that the FPO was served on 15 March 1986: Appeal (AB) p 68. 3. Mr Holdsworth gave evidence that "he vaguely recalls a police officer going to his house in Alstonville and handing him the FPO. However, Mr Holdsworth "does not have any recollection of being handed a document at Alstonville police station or being notified that he had any appeal rights in relation to the making of the FPO": Reasons at [18]. 4. Mr Holdsworth's evidence is that "he only became aware of the FPO in 2017 when his application for a firearms licence was refused": Reasons at [18]; 5. Mr Holdsworth is now seeking to have the FPO revoked "so he can engage in activities that require him to hold a firearms licence": Reasons at [26]; 6. Mr Holdsworth "did not bring an application seeking to have the FPO any earlier (sic) because he was not aware that the FPO was in place and further that he didn't know that he could bring such an application": Reasons at [27]; 7. Mr Holdsworth "did not really understand what [the FPO] was but vaguely understood that it meant that he was not allowed to have or use any guns": Reasons at [31]; 8. Mr Holdsworth did not try to have the FPO revoked at the time it was made. His education was limited. He did not know he had any rights of appeal in relation to the FPO and he could not afford a solicitor: Reasons at [31]- [32]; 9. Mr Holdsworth "didn't understand the [FPO] at all and subsequently forgot it was in place". "When he applied for a firearms licence in 1998 and 2017 he had completely forgotten about it": Reasons at [32].
10. Having recorded this evidence, the Tribunal said at Reasons [61]-[67]: 61 In April 2018 the Applicant sought to have the FPO revoked pursuant to the Commissioner's power in section 73(3) of the Firearms Act 1996. This was unsuccessful. 62 It is common ground that the FPO was issued in 1986 or that it was served on the Applicant at Alstonville in March 1986. The parties do not agree in regard to what information Senior Constable Parrington gave to the Applicant at the time he served the FPO. 63 The Applicant's evidence is that he understood that the FPO affected his ability to have firearms then but he did not understand the long term consequences. 64 Senior Constable Parrington's affidavit of service made no mention of informing the Applicant of his appeal rights. The notice itself does not explain those rights. 65 The Applicant's evidence is that he was not given notice of his appeal rights. He did not understand he had appeal rights. He was ill-educated and he had no legal advice available to him at that time and no real means with which to pay for legal advice. I accept that evidence. 66 I also accept that from the time of the service of the FPO up until the time that he applied for a firearms licence in 1998 the Applicant did not have any understanding that there was a FPO in place that would prevent him from holding a firearms licence. The fact that he made applications in 1998 and 2017 is consistent with that position. 67 I do not agree with the Respondent that it is simply a matter of the Applicant forgetting about the FPO. If that were the situation, that is, that he had known that the FPO existed but had forgotten about it, his application would fail. That would not provide a basis to extend the time for bringing of the application.
11. The Tribunal then noted that the 1998 firearms licence application was refused on the basis that Mr Holdsworth was not a fit and proper person, not on the basis of the FPO. In this regard the Tribunal concluded Mr Holdsworth had a "reasonable basis for thinking that the refusals were related to his criminal history" and not the FPO: Reasons at [68]-[71].
12. The Tribunal then said at [71]: [Mr Holdsworth] made a further firearms licence application in 2017. That application was refused because of the FPO. I accept that the applicant did not become aware of the FPO until he was notified of the refusal of his 2017 firearms licence application. From that time he acted quickly to try and have the matter addressed.
13. The basis for these findings included the evidence provided in an affidavit of Mr Holdsworth sworn 25 September 2018. At paragraphs 11 and following Mr Holdsworth said: 11. On 5 February 1986 a Firearms Prohibition Order was made against me. 12. I vaguely recall a police officer coming to my house at Alstonville and handing me a document. I now know that that document was the firearms Prohibition order made against me. 13. At the time, I did not really understand what it was. As I explained above, I did not get a very good education in my early years. I vaguely understood that it meant that I wasn't allowed to have or use any guns (emphasis added). 14. I did not have a solicitor representing me or who I could seek advice from in relation to the firearms Prohibition order at that time. I could not afford one. 15. I did not try to have it revoked at the time for a few reasons. Firstly, I did not know that I had a right to appeal the decision. As I said above, I didn't have a solicitor and couldn't afford one and my education was limited. 16. The second reason is that because I didn't understand the order at all, I forgot it was there for many years. By the time I applied for a firearms licence in 2017, I had no idea that the order was even in place. I'd completely forgotten about it.
14. In the present case, the critical finding by the Tribunal is at [71] of the Reasons. That finding was necessary to explain and excuse a delay of more than 32 years in seeking to appeal the FPO.
15. The finding at [71] involve the following conclusions: 1. Mr Holdsworth was unaware of the FPO until 2017 when his firearms licence application was refused because of the FPO; 2. the lack of awareness was both in respect of the existence of the FPO and a right of appeal; 3. neither the 1998 firearms licence application refusal or his unsuccessful attempt to travel to the United States were circumstances by which Mr Holdsworth was made aware of the existence of the FPO; 4. following refusal, on 2 November 2017, by the Commissioner of Police to issue a firearms licence to Mr Holdsworth because of the FPO, Mr Holdsworth acted expeditiously in seeking to appeal the decision to make the FPO by filing an application in the Tribunal on 6 July 2018.
16. In our view, those conclusions were not open on the evidence before the Tribunal. The evidence before the Tribunal was that: 1. Mr Holdsworth was served with the FPO at Alstonville Police Station on 15 March 1986. There was no basis to conclude the information recorded in the statutory declaration of Constable Parrington was incorrect. Mr Holdsworth did not deny this event took place. His evidence is he had no recollection. 2. The only evidence of what occurred at this time is a handwritten notation on the FPO that Constable Parrington told Mr Holdsworth he had a right of appeal. 3. The evidence of Mr Holdsworth having a "vague" recollection of having been provided the FPO at his home in Alstonville provides no basis to reject the contemporaneous records as to the service of the FPO and what occurred. 4. Mr Holdsworth was aware from the FPO that he was not entitled to possess firearms. The fact that he did not understand the ramifications of such an order on his future ability to obtain a firearms licence does not affect his knowledge of the existence of the FPO and its consequences. 5. Mr Holdsworth did not seek to challenge the FPO in 1986. At that time, he had only 21 days to appeal to the Local Court. He did not seek legal advice about this matter. 6. Mr Holdsworth's evidence was that he had a vague recollection of being served with the FPO at his home. While he says "I did not really understand what it was", his understanding was sufficient to know "that it meant that I wasn't allowed to have or use any guns". 7. Thereafter Mr Holdsworth says he "forgot [the FPO] was there for many years", awareness not returning until he made an application for a firearms licence in 2017. 8. Having had his application for a firearms licence refused on 2 November 2017, Mr Holdsworth then applied to the Commissioner of Police to revoke the FPO. This was made by his solicitor's letter dated 16 April 2018. No application to appeal the FPO was made at this time. 9. Following further correspondence concerning the request for revocation and its ultimate refusal, Mr Holdsworth applied to the Tribunal to extend the time to appeal on 6 July 2018. That application was made under s 55 (4) of the ADR Act.
17. These facts were relevant to explaining: 1. the failure to lodge an appeal under the 1973 Act, which was to be made within 21 days to the Local Court, 2. the failure to lodge an appeal under the 1986 Act, which was to be made within 21 days to the Local Court; and 3. the making of the application to the Tribunal nearly 7 months after a firearms licence application had been refused because of the FPO.
18. The only conclusion available from this evidence was that Mr Holdsworth knew of the FPO in 1986, was aware that it prohibited him from using or possessing firearms and that he took no steps at that time to obtain advice or to challenge the imposition of the FPO.
19. Further, having been reminded of the FPO in 2017 when his firearms application was refused, Mr Holdsworth took no immediate steps to appeal the FPO. Rather, with the assistance of lawyers, he applied for revocation of the FPO and only sought to appeal following his unsuccessful application for revocation.
20. The decision to extend time is a discretionary one. The power to extend time being found in s 41 of the NCAT Act as noted by the Tribunal at [4] of the Reasons and following. Contrary to the terms of the original application, s 55(4) of the ADR Act does not apply for the reasons explained above. While the parties referred to the limitation period of 21 days (as found in the earlier firearms legislation), the applicable limitation period for an application for administrative review under the Firearms Act is 28 days.
21. In House v The King at 504-5 the High Court said: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges comprising the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon wrong principle, if he allows extraneous and irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials to do so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the fact it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
22. On the evidence before the Tribunal, Mr Holdsworth knew of the FPO in March 1986 and understood its effect. The Tribunal's conclusion at [71] that ". . . the applicant did not become aware of the FPO until he was notified of the refusal of his 2017 firearms licence application" is not open on the evidence.In his submissions at para 79, Mr Holdsworth draws a distinction between "possessing weapons and being prevented from holding a firearms licence" and says that a "vague understanding held by Mr Holdsworth is not enough to elevate the matter to a material error of fact".
23. This submission suggests that a party seeking an extension of time to challenge a decision may be excused from any delay if they do not understand all the "legal ramifications" of the decision. In this case, Mr Holdsworth seeks to have the delay excused because he did not understand the existence of the FPO would prevent him from applying for a firearms licence.
24. In our view, this submission should not be accepted. The distinction sought to be drawn in this case has no meaning. This is because the permission given upon the issue of a firearms licence is to "possess or use a firearm" within the authorised category: see ss 7 and 8 Firearms Act, and the FPO operates as an absolute prohibition on the acquisition, possession or use of a firearm: s 74(1) Firearms Act.
25. It follows that the Tribunal was also in error in its conclusion at [66] of the Reasons where it found Mr Holdsworth "did not have any understanding that there was an FPO in place that would prevent him from holding a firearms licence".
26. In our view, these mistakes of fact are errors of the type referred to in House v The King and constitute an error of law in the exercise of the discretion to extend time.
27. Further, the evidence of Mr Holdsworth does not adequately explain the delay between the date the firearms licence application was refused in November 2017 and the date the application for an extension of time was lodged with the Tribunal in July 2018.
28. The present application arises because: 1. Mr Holdsworth now wishes to obtain a firearms licence; 2. an FPO prevents him from obtaining a firearms licence; 3. Mr Holdsworth's circumstances have changed since 1986; and 4. he has failed in his attempt to have the FPO revoked.
29. This change of circumstances does not justify extending time in which to appeal a decision made in 1986.
30. It is not the case that Mr Holdsworth wanted to exercise a legal right but was unaware of a relevant legal obligation and right of challenge. The explanation for delay is incomplete and does not acknowledge that, at the time the FPO was made, Mr Holdsworth decided not to challenge the decision.
31. In these circumstances, the explanation for delay is inadequate and no proper basis has been established to now extend the time to appeal, the right to do so originally expiring 21 days after the decision was made in 1986.

Orders

1. The Appeal Panel makes the following orders:
2. Leave is granted for the Commissioner of Police, NSW Police Force to appeal from an interlocutory decision.
3. The Tribunal's decision that "The time for filing of the application is extended to 9 July 2018" is set aside.
4. In substitution for that decision, the following decision is made: The application to extend time to appeal the Firearms Prohibition Order made 5 February 1986 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: 08 July 2019