Copeland v Commissioner of Police, NSW Police Force

The source of the power

1. As the Commissioner correctly points out in her request for reasons for the extension decision, the decision made by the Tribunal on 6 December 2022 was made pursuant to the Civil and Administrative Tribunal Act, s 41(1).
2. The Civil and Administrative Tribunal Act, s 41 gives the Tribunal an unfettered power to extend time. The section provides the following: (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.

Matters to be considered in the exercise of the power

1. Such power, though unfettered, must be exercised "judicially" by the Tribunal, (though the Tribunal is not a judicial body) and with regard to the statutory imperative of the Civil and Administrative Tribunal Act, s 36, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
2. In determining whether to extend time, the Tribunal should have regard to various considerations recently summarised in Xpertise Construction Pty Ltd v Orantia [2023] NSWCATAP 22 at [11] where the Appeal Panel of this Tribunal relevantly stated: In the NCAT Act, s 41 provides that the Tribunal may grant an extension of time. The relevant considerations as to the exercise of the discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22] and they are as follows: (1) Is there proof that strict compliance with the rules will work an injustice on the applicant? … (3) It will usually be necessary to consider: (a) the length of the delay, (b) the reason(s) for the delay, (c) the applicant's prospects of success, i.e. whether there is a fairly arguable case, and (d) the extent of any prejudice suffered by the opponents. …

Did Mr Copeland make an application for an extension of time?

1. Before considering how the matters summarised above apply to the facts of this case, the Tribunal must first deal with a preliminary matter; whether Mr Copeland made an application for an extension of time or whether the Tribunal acted, as it was permitted to do so, under the Civil and Administrative Tribunal Act, s 41, on its own motion.
2. Despite the express terms of the Civil and Administrative Tribunal Act, s 41, the Commissioner's submissions do not countenance the power of the Tribunal to act without an application. This may arise from a consideration of the Civil and Administrative Tribunal Rules, r 8, that rule requires an extension of time application to be in writing unless such application is dispensed with by the Tribunal.
3. In the absence of an application, the Commissioner would be entitled, as a matter of procedural fairness, to have the opportunity to have some notice and be heard in opposition to the application. For reasons that will become apparent, there has been no lack of procedural fairness towards the Commissioner in this regard.
4. It has been previously stated by the Appeal Panel of this Tribunal that ticking a box on a form satisfies the requirement under r 8; see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [14].
5. Mr Copeland not only ticked the applicable box on his application form; he went further and included a short explanation in writing for the lateness of his application.
6. Contrary, therefore, to the Commissioner's interlocutory written submissions, Mr Copeland had applied for an extension of time to lodge his application and, further, had expressly identified the basis upon which he sought an extension of time. The reason stated by Mr Copeland was that, though the result (by which I have assumed he means the Commissioner's decision on internal review) was dated 16 March 2022, it had been sent "to the wrong email".

The interlocutory application

1. Despite Mr Copeland having applied in a satisfactory manner to the Tribunal for an extension of time in which to lodge his application, in submissions accompanying the interlocutory application, the Commissioner, under the heading "Late application to extend time", sought to "reserve [her] right to file and serve evidence in reply and to make further submissions" in respect of any application made by Mr Copeland to extend time.
2. The fact is that Mr Copeland had already made an application to extend the time to lodge his application. He did this on 4 November 2022. As a consequence, the Commissioner had ample time to file and serve evidence and make submissions regarding the extension of time in the period between about 4 November 2022 and 6 December 2022. By my calculation, that is a period of about five weeks. Despite being represented by solicitors and being a regular respondent before this Tribunal, the Commissioner did not file and serve any evidence or make submissions regarding Mr Copeland's extensions of time in that period.
3. Rather than addressing Mr Copeland's application for an extension, the Commissioner instead lodged an interlocutory application seeking dismissal of the application.
4. In the circumstances of the present case, there was no basis and indeed no "right" for the Commissioner to assert that she should have further time to make submissions or file evidence in opposition to the application made by Mr Copeland. To permit further time to oppose an application made weeks earlier than the Commissioner's unsuccessful dismissal application is contrary to the orderly conduct of business in this Tribunal.
5. Accordingly, and having particular regard to Mr Copeland's application form and the matters set out in the Commissioner's submissions, the second and third grounds stated in the Commissioner's submissions in support of her interlocutory application for dismissal, as set out in paragraphs 4(2) and 4(3) above, are factually incorrect and misconceived.
6. The Commissioner's interlocutory application was necessarily dismissed as a consequence of the making of an order permitting Mr Copeland an extension of time to lodge his application. Once time had been granted, the Commissioner's interlocutory application, based as it was on the lateness of Mr Copeland's application to the Tribunal, was otiose.

Consideration of the extension of time application.

1. I have taken the Commissioner's grounds set out in her submissions in support of the dismissal application to apply by way of opposition to Mr Copeland's application for an extension of time since her opposition to that application proceeding is clear.
2. Additionally, at the directions hearing, the Tribunal received additional oral submissions from Mr Copeland's representative and from the solicitor appearing for the Commissioner who relied principally on his written submissions. I will outline these representations below to the extent they are relevant.
3. Turning now to address the relevant considerations for extension of time applications, as recently summarised in Xpertise, my findings and considerations are as follows; 1. Firstly, the Tribunal has considered whether not granting the extension may result in an injustice. As the Commissioner noted in submissions, the effect of strict compliance with the rules is that the application will be dismissed, and indeed, that was the primary relief sought by the Commissioner in her interlocutory application. In circumstances where Mr Copeland waited nearly a year for the Commissioner to determine his internal review request, to refuse to extend time arising from his delay of 29 weeks in bringing his application, even if it were accepted that the delay was not properly accounted for, would, in my view, give rise to an injustice. Furthermore, where, as here, an applicant has given a reasonable account for this delay, the failure to grant an extension of time would most certainly cause an injustice between the parties. 2. Secondly, the Tribunal considered the length of the delay. Mr Copeland is 29 weeks late in making his application to the Tribunal. That is a substantial, but not inordinate, amount of time. It is far in excess of the 28-day default period provided under r 24(4)(b). However, when compared with the fact that the Commissioner took 52 weeks to finalise the internal review, 29 weeks is not an exceptionally long period. Mr Copeland may have applied to the Tribunal at an earlier time by way of asserting a deemed refusal, but that is not relevant to the considerations of the Tribunal on the question of whether to extend the time to lodge his application. Mr Copeland, having sought internal review, was entitled to allow the Commissioner the opportunity to determine the matter in a considered way before approaching the Tribunal. Having regard to the internal review decision, this was not a case where the Commissioner's refusal to grant a firearms licence was inevitable. Mr Copeland may have harboured a genuine hope that the Commissioner's internal review would result in a favourable outcome which would have avoided the need to proceed to litigation. 3. Thirdly, the Tribunal considered the reason for the delay. On his application form and as confirmed in oral submissions by his solicitor, Mr Copeland asserted that the email address identified on the internal review decision as being the address to which the decision had been sent, was an incorrect address. The email address appears to contain some elements of the name of the firm of solicitors representing Mr Copeland. However, it is a very different email address from that which is identified as the contact email address for his solicitors in the Tribunal proceedings. Mr Copeland's solicitor told the Tribunal that the email appearing on the internal review document was not one that he had used or was otherwise incorrect. Mr Copeland's solicitor stated that he had made the application for internal review of the Firearms Registry using the same email account that appeared on Mr Copeland's application to the Tribunal. He stated that, as soon as the internal review decision came to his attention, in late October 2021, he took immediate steps to seek his client's instructions and lodge an application in the Tribunal. Mr Copeland's application to the Tribunal is digitally signed by the solicitor on 31 October 2022 and formally lodged on 4 November 2022. Mr Copeland's solicitor is an experienced Australian Legal Practitioner; he has appeared in countless matters of a similar kind to Mr Copeland's application and has appeared in a manner that has not, to my knowledge, drawn any comment or criticism. The Tribunal is entitled, in the absence of specific evidence to the contrary, to rely on submissions and statements made by such a person as being accurate. In this instance, the Commissioner did not put any material before the Tribunal that could establish that the email address noted on the internal review decision was an address specified by Mr Copeland and his solicitor. That would have been a very simple matter of evidence that could have been sent to Mr Copeland's solicitor and the Tribunal prior to 6 December 2022. Accordingly, I accept the explanation of Mr Copeland's solicitor and find that the reason for the delay had been an administrative error that was outside Mr Copeland's control. 4. Fourthly, having regard to the reason for the delay, which the Tribunal has accepted was reasonable, the Tribunal also considered whether Mr Copeland had a fairly or reasonably arguable case. The Commissioner's decision on the internal review refers to findings that Mr Copeland is not a fit and proper person to be trusted to have possession of firearms without danger to public safety or the police and otherwise whether the issue of a licence to him would be contrary to the public interest. The internal review decision referred to extensive character material and evidence of reform from a history of past offending that had been supplied by Mr Copeland in support of his application for a firearms licence. The reviewer stated that significant weight had been given to that material. The crux of the internal review decision appears to be the manner in which Mr Copeland completed a form in 2018 that called into question Mr Copeland's suitability. No doubt that issue, together with all other matters, will be ventilated at the hearing and will be the subject of detailed evidence and submissions. In those circumstances, I was satisfied that, prior to a substantive hearing, it would appear that Mr Copeland has a fairly arguable case. His case need not be shown to have substantial merit given my findings concerning the reason for the delay, and there was no submission or hint that his application was frivolous, vexatious or misconceived aside from the Commissioner's assertion concerning the lateness of the application. 5. Finally, I was not provided with any submissions or explanations that suggested the Commissioner was in any way prejudiced by the delay in Mr Copeland's application. Had there been any prejudice to the Commissioner, this would have been a matter that would have been appropriate to make submissions on and adduce evidence about in response to an application for an extension of time that had been on foot since 4 November 2022.

Conclusion

1. For the reasons set out above, on 6 December 2022, I made, among other procedural directions, the following order: 1. The Applicant sought to be permitted to lodge his application out of time, the application was opposed however, after hearing submissions from both representatives, the time in which to lodge the application by 4 November 2022 was granted.

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: 16 February 2023