Fox v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2016-03-14

REASONS FOR DECISION

On 11 August 2015 the applicant Michael Fox applied to this tribunal for review of a decision of the respondent to revoke the applicant's firearms licence.
The matter originated in the applicant's move from the Northern Territory to Tibooburra, New South Wales, in or about April 2013. On 14 May 2014 the incident described as event E55539141 occurred, which allegedly involved the applicant angrily firing his rifle at a post following an altercation at the Tibooburra Hotel with a young farm worker over clandestine contacts with the applicant's daughter. He did not threaten anyone with the rifle but reportedly spoke of physically dealing with the young man and then committing suicide. He was taken by police to Broken Hill Hospital for assessment under s 22 of the Metal Health Act 2007 and his firearms were impounded by police.
Between April 2013 and 11 June 2014 the applicant had firearms in his possession in New South Wales without holding a New South Wales firearms licence, in breach of the Firearms Act 1996.
On 11 June 2014 the applicant applied for class ABC licence, and on 4 November 2014 the respondent issued a class ABC licence to him. The licence was to expire on 27 November 2019 and the applicant's stated reason for holding a licence was primary production.
That licence was suspended on 2 March 2015 and revoked on 2 May 2015. On 20 July 2015 the respondent undertook an internal review of the decision which resulted in the internal review affirming the decision of the respondent's delegate. On 11 August 2015 the applicant lodged an appeal to NCAT against the respondent's decision to revoke his license. On 18 August 2015 Britton PM rejected a stay application made by the applicant. On 1 September 2015 Montgomery SM granted a stay of the Commissioner's decision to revoke the firearms licence pursuant to s 60 of the Administrative Decisions Review Act 1997 (ADR Act), but made no order apart from the stay.
Mr Fox informed the tribunal by email on 10 December 2015 that he was "in the middle of moving between properties". On 10 February 2016 the respondent wrote to Mr Fox drawing his attention to the legal requirements applying when a person leaves New South Wales, including notifying New South Wales police about the safe storage location of firearms, and the new address. The applicant replied to that letter on 10 February 2016 providing his new address in South Australia and informing the New South Wales police that he had now spoken to South Australia police and had taken his firearms to a firearms dealer for safe storage. On 23 February 2016, New South Wales police revoked the applicant's firearms licence, the notice of revocation being served on him on 10 March 2016.
At a directions hearing on 29 September 2015, Hennessy DP laid down a timetable requiring the applicant to file and serve his material by 20 October 2015, the respondent by 24 November 2015 and any material in reply by the applicant by 7 December 2015. When the matter came on for hearing on 14 December 2015, the respondent applied for an adjournment on the grounds inter alia that the applicant had failed to file his material and for that reason, and also because of delays in obtaining documents sought on summons, the respondent was unable to prepare all his material or to obtain proper instructions (see the respondent's solicitor's letter to the tribunal 11 December 2015). The applicant opposed that application, submitting that he was the victim of a witch-hunt and that there was already ample evidence before the tribunal to show that certain persons who had made statements relied on by the respondent had been lying. He had lost a station property as a result of those lies. The matter was adjourned for further directions on 14 March 2016.
At the hearing on 14 March 2016, the respondent made a submission seeking dismissal of the proceedings pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (CAT Act) on the grounds that:

the applicant was using the hearing before this tribunal for a collateral purpose, namely to advance his South Australian licence application, and not for the purpose of holding a firearms licence in New South Wales;
he was residing outside the State and therefore not entitled to apply for or hold a licence;
he no longer had a genuine reason to hold a firearms licence as he was no longer a primary producer, either in New South Wales or in South Australia; and
as the Commissioner had revoked the applicant's license, any decision made by the tribunal would not alter his licence status.

The applicant contended that the respondent's decision to revoke his licence only days before the tribunal hearing was malicious, and designed to circumvent any decision of the tribunal. He contended that the respondent's submissions were rubbish and said that he was proceeding with the hearing in order to clear his name so that he could obtain a firearms licence in South Australia. He submitted that the respondent's decision to revoke was in fact contrary to the tribunal's decision to stay the first revocation, and that somehow the Commissioner should not have taken any action against the applicant while the South Australian authorities were considering the applicant's license application in that State. The respondent was then directed to file and serve a chronology of the relevant events and his submission on the application to dismiss, as well as the stay point raised by the applicant. At the respondent's request the tribunal allowed the respondent an extra week, to 31 March, to file and serve his submissions, and the applicant's deadline was correspondingly extended to 8 April. By telephone the applicant contacted the registry on 6 April seeking a further week to comply with the timetable, and the date was accordingly extended to 13 April.

Applicable legislation

Section 7A of the Firearms Act provides that a person must not possess or use a firearm unless authorized to do so. Using a firearm otherwise than in connection with the purpose established as being the genuine reason for possessing and using it is an offence: s 7A(2). A licence must not be issued unless the Commissioner is satisfied that the person to whom it is to be issued is a resident of this State, or is about to become a resident of this State: s 11(3)(d). The Commissioner must not issue a licence authorizing possession and use of a firearm unless he is satisfied that the applicant has a genuine reason for possessing or using the firearm: s 12(1). As was noted above, the reason provided by the applicant was primary production. Nor must the Commissioner issue a category C licence unless the applicant, being a primary producer, establishes a special need for it: s 14.
A licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind: s 24(2)(a). The Commissioner may also revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold the licence: Firearms Regulation 2006, cl 19. If there is any change in the licensee's or permit holder's place of residence, the licensee must provide the Commissioner with particulars of the change of address within 7 days after the change occurs: s 69. If the licensee's reason for possessing or using a firearm pursuant to a licence can no longer be established by the licensee, the licensee must, within 14 days of ceasing to have that genuine reason, notify the Commissioner in writing of that fact: cl 14. If there is any change in the address of the premises on which the licensee keeps any firearm, the licensee must notify the Commissioner within 14 days after the change occurs of the new address at which the firearm is to be kept and particulars of the arrangements that have been made for complying with the safe storage requirements of the Act and Regulation: cl 16(2).
An interstate resident who holds a licence equivalent to a category A or B licence who moves to New South Wales may notify the Commissioner in writing that he or she intends to do so on a permanent basis, after which the licence held by that person is taken to be a "corresponding licence" in force in New South Wales for a period of 3 months from the time of notification: s 27. In relation to category C licences, where a person notifies the Commissioner and lodges an application for a firearms licence within 7 days, that person does not commit an offence with respect to the possession of a firearm until the determination of the application.
Section 60 of the Administrative Decisions Review Act 1997 (ADR Act) governs the granting of stay orders suspending the operation of an administrative decision: 60 Operation and implementation of decisions pending applications for administrative review (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
Applications to dismiss proceedings are governed by s 55 of the Civil and Administrative Tribunal Act 2013 (CAT Act): 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.

Applicant's submissions

In his written submissions Mr Fox submitted that the tribunal should not have permitted the respondent to lodge his submissions a week late, adding that "I believe that Senior Member has, on a number of occasions, made the wrong decision in allowing Mr Zoppo to stall the proceedings, and to make submissions against the hearing proceeding to my detriment". He argued that on 14 December 2015, the original date fixed for hearing, he was a resident of New South Wales and was ready to proceed with the hearing with the intention of producing evidence to clear his name and therefore have his New South Wales firearms licence restored. He had failed to lodge his submissions and submissions in reply for the 14 December hearing in time, as he had been in the process of moving his household contents from Tibooburra to Port Pirie, South Australia. His computer, fax machine and printer were packed in storage boxes inside a shipping container from 25 November until 10 December.
Mr Fox stated that "Mr Zoppo's evidence contained an email to Alistair Lunn from an unknown person (senders details are blacked out on the paper copy) who wrote that I had been overheard by a 'Jodie', while talking to Vicky Jackson in the Corner Country store at Tibooburra, to say that I was going to start shooting people in Tibooburra. I knew that this was an outright lie, but was unable to contact Vicky Jackson until 7th December to verify this because she was away with her sick husband who had suffered a stroke". On 7 December he had discussed the evidence with Vicki Jackson, and she confirmed that there was no one else in the store on that day he was accused of conversing with her about shooting people.
The applicant argued that the tribunal had "refused to allow me more time to produce evidence for the hearing on the 14th December, and that by allowing the hearing to be adjourned, "it gave Mr Zoppo an opportunity to object to the hearing continuing on the basis that I am no longer a resident of NSW. Mr Zoppo was well aware that I was leaving NSW at the time, and I believe it was his intention to stall the hearing so that he could use the argument at the next hearing on 14th March that I was no longer a resident of NSW to stop the hearing from continuing, which he did successfully". He had been accused of acts that he did not do and things that he did not say, and he had proof of that, which should convince the tribunal to find in his favour. He submitted that the respondent's reasons for not wanting the hearing to continue had nothing to do with the fact that he was no longer a resident of New South Wales. He was trying to protect his client from the evidence the applicant would produce that would prove certain people liars, and would show that the police did not conduct a proper investigation and colluded with members of RMS to discredit him. He believed he should be allowed to continue with the hearing because, among other reasons, he had been losing unacceptable numbers of stock to ferals and needed firearms to control feral animals on his property.
He had been dealing with these issues since February 2015 when the police seized his firearms. It had had financial consequences because of the loss of large numbers of stock, which could have been prevented if people did not make false accusations against him and if the police had investigated the matter properly. He believed that if the South Australia police had access to his present police record in New South Wales, they would not issue him with a firearms licence. If he were to return to live in New South Wales, a distinct possibility because he owns the Mt Stuart quarry at Tibooburra, and were to apply for a New South Wales licence, it would not be issued because he had been unable to clear his name at a hearing conducted by the tribunal, if the hearing were not to proceed. He simply wanted to clear his name of wrongdoing.
He accepted Mr Zoppo's contention that clearing his name would not allow him to have a New South Wales licence if the tribunal were to find in his favour, but that was only because he did not live in New South Wales. A finding in his favour would clear his name in New South Wales, where he has an otherwise unblemished record, would allow him to obtain a firearms licence in South Australia and at a later date obtain a licence in New South Wales, should he return to live in the state. In an email to Mr Zoppo dated 6 April 2016 attached to his submissions, the applicant said that the tribunal did not handle disputes in a balanced manner. "Every time you have made an excuse to adjourn or prevent the hearing from taking place, NCAT have taken your side. I fully expect you to be successful with your current attempt to stop the hearing from happening due to NCAT past performances…. I firmly believe that you have manipulated NCAT to suit your own means of preventing the hearing from occurring. I also firmly believe that I have the right to clear my own name in these proceedings, and you are well aware that I have solid evidence to do so".
At the hearing on 14 March 2016 the applicant put forward most of those points, adding that this was not an idle dispute. There was a stay in force and the respondent had revoked his licence maliciously in order to make trouble with the South Australian authorities. At the time of the last hearing, he lived in New South Wales and the matter could have been dealt with then. He did not wish to institute proceedings in South Australia if his licence application there were unsuccessful. He said he could not challenge the allegations that had been made against him in a South Australian proceeding, but admitted that he knew of no reason why he would be unable to do so. His aim was to clear his name of the accusations that had been made against him and the fact that he was currently living interstate should not be relevant.

Consideration

The issues in the present preliminary application are (1) whether the respondent's revocation of the applicant's license on 23 February 2016 on the ground that the applicant is no longer a resident of New South Wales is contrary to the tribunal's decision to stay the earlier revocation of his licence on 2 May 2015 (confirmed by internal review on 20 July 2015) on the grounds that there was reasonable cause to believe that he might not personally exercise continuous and responsible control of firearms because of unsound mind, and that it was not in the public interest for him to hold a licence and (2) whether the applicant's application for review of that revocation lodged on 11 August 2015 should be dismissed under s 55(1)(b) of the CAT Act as being frivolous or vexatious or otherwise misconceived or lacking in substance.

The stay

The source of the tribunal's power to stay a decision under review is s 60(2) of the ADT Act, which provides that the tribunal "may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate". The respondent submits that the decision to grant a stay was made on the basis of evidence that the applicant gave regarding his need for a licence for the purpose of feral animal control and animal husbandry. As those reasons no longer existed, the applicant no longer residing in the state and no longer being a primary producer, there was little scope for the stay's operation in securing the effectiveness of the determination of the application. Further, the decision to grant a stay did not restrict the respondent's overriding function as the regulator of the possession and use of firearms in New South Wales, but its effect was limited to staying a particular decision. The respondent cited AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81, [16], [19] - [21] as authority for the proposition that the tribunal had no power to restrict the respondent's overriding function as regulator.
The applicant did not challenge those arguments, but submitted that Montgomery SM's grant of a stay showed that he considered the applicant to be a fit and proper person to be entrusted with firearms, which he needed for feral control on his property. Further, he must have assumed that there was enough doubt about the revocation of the licence to allow the applicant to continue to possess firearms until a hearing determined the outcome of his objection to the revocation.
While AVS does not in terms hold that there is no power to restrict a respondent's overriding function as regulator, it does indicate that the power to grant a stay does not have a broad operation as a power to issue a broadly-worded injunction might. In that case it did not have the effect of permitting a licensee to operate although his licence had been revoked by the Commissioner before the stay was granted. The operation of a stay is restricted to the staying of the effect of a particular decision. In this case that is the original revocation of 2 May 2015, and not the later revocation 23 February 2016 following the applicant's advice of his new address in South Australia, which meant that he was ineligible to hold a licence and permit by reason of not being a resident of the state and no longer being a primary producer.
Mr Fox described that revocation as malicious and as having been made for an improper purpose, but there is no evidence to support those allegations. The exercise of the revocation power was consistent with ss 11(3)(d) and 24 of the Firearms Act. The respondent averred that it was also consistent with the respondent's normal practice for the revocation of licences when licensees notify the respondent that they have left New South Wales and no longer require a licence. The material before the tribunal provides no grounds for doubting that proposition.

The dismissal issue

Section 55(1)(1)(b) provides that the tribunal "may dismiss at any stage any proceedings before it" if it considers that "the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance". In everyday usage such language would appear to carry somewhat censorious overtones, but its technical legal meaning is simply that the application lacks a legal foundation. Thus in 601 Management Company Pty Ltd v Commissioner of State Revenue [2011] VCAT 2129, [12], the Victorian tribunal observed that the words "frivolous, vexatious and lacking in substance are very pejorative terms" that refer, in this context, "merely to matters which are not legally properly based". The term "misconceived" represents a claim that does not "disclose a cause of action", while "lacking in substance" may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39].
The words "at any stage" mean inter alia that an application that is legitimate when commenced can become vexatious because of changes in circumstances. Thus, if no purpose will be achieved by continuing the application, even though the applicant is genuine in his or her belief in the matter raised, the application should be struck out: Re Williams and Australian Electoral Commission [1995] AATA 160, (1995) 38 ALD 366. The defect must be apparent on the face of the pleading (Cairns, Australian Civil Procedure, 10th edn. 2014, 508) or, in the case of tribunal proceedings on the face of the statements of facts and contentions, and evidence is not normally admissible on the point (ibid). A proceeding that constitutes an abuse of process may be dismissed as frivolous or vexatious: Re Hinds and Australian National University [2012] AATA 495, (2012) 129 ALD 476, 480, [18] (the tribunal in that case assumed the correctness of a submission on that point by ANU); see also Pearce, Administrative Appeals Tribunal (2014), 15.14.
In Re Filsell and Comcare [2009] AATA 90, [33], Jarvis DP set out the principles to be followed in relation to such applications under the corresponding federal legislation. They included the following: (a) the word "frivolous" in combination with "vexatious" is a technical legal term, which means that there is no legal basis for the proceeding; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings…. (b) the expression "vexatious" can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are "so obviously untenable or manifestly groundless as to be utterly hopeless": Attorney-General v Wentworth (1988) 14 NSWLR 481, 491 per Roden J, or if the proceedings have "no reasonable prospect at all of success"….
A proceeding is thus vexatious if it is brought for a collateral purpose (Cabot v City of Keilor [1994] 1 VR 220, following Wentworth) or if the outcome of the proceedings, whether successful or not, will be devoid of any practical effect: Re Williams at 374. The proceeding is "misconceived" if it is obviously untenable, for example if the claim is statute-barred: Sleigh v Victoria [2010] VCAT 2057, [8]). The cost implications for both the tribunal and the respondent of continuing the proceeding are also relevant, as Jarvis DP observed in Filsell: (d) However, is proceedings have no reasonable prospects at all of success, they should be dismissed …, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing" (loc. cit. supra).
That consideration was also applied in Re Irving and Repatriation Commission (1997) 46 ALD 20. The tribunal (the AAT) there stated that the desire to restore honour and secure vindication had to be balanced against other factors, including the cost to the respondent. The proceedings in that case could have no practical effect as the applicant would receive no monetary benefit from a favourable result. They should therefore be dismissed as vexatious (at 26).
Where the applicant is seeking only restoration of honour (i.e. clearing his name) and has no chance of success in the proceeding, the matter should be dismissed (id.). While the power should be exercised cautiously and sparingly (Re Williams, [39]), the High Court explained in Williams v Spautz (1992) 174 CLR 509 that it is not necessary for the sole purpose in continuing an action to be collateral to the process, and concluded rather that it is sufficient that the collateral purpose is the predominant one. That proposition was adopted in Re Hinds and Australian National University [2012] AATA 495, (2012), 129 ALD 476, 480 - 481; see also Burns v Laws [2005] NSWADT 229, [9]. In Spautz, Brennan J pointed out that there is no impropriety of purpose in maintaining a proceeding with an ulterior purpose or motive, but said the matter should be dismissed if the proceeding was for a purpose that did not include, at least to any substantial extent, the obtaining of relief within the scope of the remedy.
Applying those principles to the present facts, it is clear that Mr Fox is genuine in his desire to pursue the proceedings with a view to clearing his name in relation to allegations made about him and statements attributed to him. He believes a favourable result would assist his application for a South Australian licence. Although that is a collateral purpose, it did not prejudice the application when made, as there was at that time a possibility, as illustrated by Montgomery SM's grant of a stay, that the proceedings could have been successful and a licence granted to Mr Fox. Once the applicant had moved to South Australia, however, he ceased to be eligible for a New South Wales licence and the possibility that he might return to live in New South Wales to operate the Tibooburra quarry did not alter that position. His desire to clear his name thus became the sole reason for his maintaining the proceeding.
As the authorities make clear, restoration of honour on its own is not a purpose that is sufficient to prevent an application from being dismissed as frivolous or vexatious or misconceived or lacking in substance under s 55(1)(b). In the present case, the legal definition in the case law of any or all of those four terms applies, in particular that it is misconceived and lacking in substance, as the proceedings could not result in the restoration of his licence. It is "no longer a live controversy": AVS Group Australia Pty Ltd v Commissioner of Police, New South Wales Police Force [2012] NSWADTAP 24, [22]. Also relevant, according to the authorities, is the quantity of resources likely to be required for a hearing, in this case perhaps at Broken Hill, involving two witnesses for the respondent and at least eleven for the applicant.
The applicant did not dispute the respondent's submissions of law, but objected that he had been ready to proceed at the hearing on 14 December 2015 and that the respondent had succeeded in delaying the proceedings until the applicant had moved to South Australia, thus automatically becoming ineligible to hold a licence. In that connection he cast aspersions on the respondent's legal representative and on the tribunal. The adjournment on 14 December, however, was granted for the reasons set out above (including in the respondent's solicitor's letter of 11 December 2015), including the fact that the applicant had filed no witness statements or other materials as required by Hennessy DP's direction as extended. He has still not filed the requisite witness statements, but states that he has furnished the respondent with summaries of the evidence he expects his witnesses to give. That would appear to be a reference to his email to the respondent of 6 February 2016. The summaries (prepared by the applicant, not by the intended witness) included in it run to some two or three lines each and might or might not have been sufficient to permit the respondent an adequate opportunity to obtain proper instructions and present his case. The tribunal is required to be fair to both sides in the proceedings before it, including in procedural matters.
There is no doubt that Mr Fox has suffered more than his share of adversity in recent years. In normal circumstances he has been a successful businessman, but shortly after purchasing the Tibooburra property he had to endure a three-year drought leading to the loss of over 5000 sheep and lambs. His wife left him and he sees his children only during school holidays. As a result of a dispute with Roads and Maritime Services, he has been forced to sell the property. The respondent's internal review statement of reasons, while affirming the decision under review, gave due weight to those considerations: I place further weight on the accumulation of pressures that you have been under since purchasing your property. I believe it is without question that the death of stock through drought places an unbearable burden on primary producers. I also note your advice regarding the separation from your wife and children, and the impending loss of your property. I agree that these life changing events would test the sanest person" (at p 4).
The applicant has applied for a South Australian licence. He was unable to offer any reason why he would be unable to raise the matters intended to clear his name in a South Australian proceeding if the need should arise, though he would prefer not to have to do so.
After giving due weight to the submissions on both sides, I conclude that the application has no prospects of success and must be dismissed under s 55(1)(b) as being frivolous, vexatious, misconceived or otherwise lacking in substance.

Order

Application dismissed. 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: 26 April 2016

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