Solicitors for respondent: Wallace, Wilkinson and Webster

UNDERWOOD J The Commissioner of Police is a person aggrieved within the meaning of the Justices Act 1959, s107(1), by an order of a magistrate revoking his refusal to grant the respondent a gun licence. The learned magistrate also directed the applicant to issue a gun licence to the respondent. The first three grounds of the motion to review complain that the learned magistrate erred in law by failing to hear and determine the appeal in accordance with the Guns Act 1991, s94.

2. In general terms, the Guns Act 1991 makes it an offence to have a gun unless authorised to do so by a licence. Section 8 empowers the Commissioner to grant the several licences specified by the section. The Act makes the following provision with respect to the right of appeal against a decision of the Commissioner:

"93 A person may appeal to a magistrate against -

(a) a decision by the Commissioner -

(i) to refuse to grant; or

(ii) to cancel -

a licence, a permit or an approval, or to prohibit or

restrict the activities authorized by a gun-dealers

licence; or

(b) the conditions imposed by the Commissioner on the grant

of a temporary permit or of an approval.

94 (1) An appeal against a decision by the Commissioner

shall be made in writing to a magistrate.

(2) A magistrate to whom an appeal is made shall deal with

the appeal in accordance with the Justices Act 1959 as if

the appeal were a complaint against the Commissioner in

respect of a breach of duty.

(3) After hearing an appeal a magistrate shall -

(a) confirm the Commissioner's decision; or

(b) revoke the Commissioner's decision; or

(c) direct the Commissioner to take such action as in the

circumstances the Commissioner would have been able to take

under this Act.

(4) The Commissioner shall comply with a direction of a

magistrate."

3. When the appeal commenced, the only material before the learned magistrate was the notice of appeal and the letter of refusal from the delegate of the Commissioner of Police. That letter read (formal parts omitted):

"Your application for a gun licence has been received at the

Firearms Registry.

During the course of giving consideration to your

application it has been found that you do not conform to the

criteria according to the Guns Act 1991. The Act states

that the applicant must be a 'fit and proper person' to hold

a gun licence.

The Commissioner of Police (through his delegate) is

required to take various matters into account when

determining whether a person is 'fit and proper'. In

accordance with the criteria I regret that I am unable to

approve your application on the grounds that:

- you were convicted for violence to another person within

the last five years.

In accordance with the Guns Act I am obliged to inform you

that you may appeal in writing, to a magistrate, against the

decision."

4. The learned magistrate raised the nature of his jurisdiction under the Act with counsel for the appellant and a police prosecutor appearing before him. The learned magistrate determined that the Commissioner of Police was bound by the reasons given for the refusal to grant the licence and restricted the appeal to an examination of the correctness of those reasons.

5. Identification of the nature of an appeal conferred by statute has been the subject of many cases. See, eg, Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616; Ex parte Australian Sporting Car Club Ltd; re Dash and Anor (1947) 47 SR NSW 283; State Superannuation Board of Victoria v O'Connor [1985] VicRp 41; (1985) VR 380 at 382; Goldsmith v Victims Compensation Tribunal (1993) 30 NSWLR 410. In the end, the nature of an appeal "will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi judicial function, classifications which are too general to be of decisive assistance" per Mason J Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (supra) at 621-622. In Ex parte Australian Sporting Car Club Ltd; re Dash and Anor (supra) Jordan CJ (with whose reasons for judgment the other members of the court agreed) said at 283:

"The word 'appeal' may be used in two connections. It may

refer to an appeal from one judicial tribunal to another;

such an appeal may be an appeal stricto sensu or an appeal

by way of rehearing, in which latter case the jurisdiction

exercised by the appellate tribunal is in part original; or

the word may refer to an appeal from an executive authority

to some other executive authority or to a court. If such an

appeal is to a court, the jurisdiction which it exercises is

not appellate but original; Federal Commissioner of Taxation

v Munro [1926] HCA 58; (1926) 38 CLR 153 at 181; McCaughey v Commissioner

of Stamp Duties (1945) 46 SR NSW 192 at 207."

6. The intention of Parliament with respect to the nature of an appeal to a magistrate pursuant to the Guns Act 1991, s93 is to be found in s94(2). The reference in that subsection to a breach of duty is plainly a reference to the failure to grant the licence sought. The requirement that the magistrate deal with the appeal as if it were a complaint against the Commissioner in respect of a breach of that duty, casts the onus upon the appellant to establish that the Commissioner erred in the exercise of the discretion which he was bound to exercise by virtue of the duty imposed by statute.

7. The Guns Act, s93 provides for a judicial review of an executive decision so prima facie, the court is to exercise an original jurisdiction and determine the matter afresh. Section 94(3) requires a magistrate after hearing an appeal, to either confirm the Commissioner's decision or revoke that decision or direct the Commissioner to take some other action as he would have been able to take under the Act. A magistrate would not be able to exercise any of those powers properly without hearing the application for a gun licence de novo and determining it afresh upon such material as might be presented before him.

8. The nature of an appeal under the Guns Act, s93 was considered by Crawford J (obiter dicta) in Peters v Commissioner of Police A104/1993. That decision was handed down only twelve days before the present matter was before the learned magistrate and it is obvious from the transcript of proceedings that unfortunately it was not drawn to his attention. In that case Crawford J applied the principles enunciated by Burbury CJ in R v Oldham ex parte Registrar of Motor Vehicles (1966) Tas SR 80. Crawford J said at 2:

"The so called 'appeal' to the magistrate was in substance

an original proceeding and the question whether the licence

should be granted to the applicant had to be tried on fresh

evidence and independently of the process by which the

Commissioner's delegate reached his conclusion. It was for

the magistrate to be satisfied for himself upon the evidence

called before him, whether the applicant was a fit and

proper person to hold the licence and whether, having regard

to all other relevant matters, the licence should be

granted."

9. I am in agreement with his Honour's view expressed obiter dicta in that case and accordingly hold that in the present matter the learned magistrate fell into error when he confined the appeal before him to an inquiry into the ground expressed by the Commissioner's delegate as the reason for refusing the respondent a gun licence.

10. Upon the hearing of this motion to review I ordered that the motion be allowed, the order of the learned magistrate be set aside and the respondent's appeal against the Commissioner's refusal to grant him a gun licence be remitted to another magistrate for determination in accordance with law. As the views of Crawford J in Peters v Commissioner of Police were expressed obiter dicta, I now publish these brief reasons for making those orders.