Gault v Commissioner of Police, NSW Police Force

The issues

1. The Respondent contends that the Tribunal does not have jurisdiction to hear and determine the application for administrative review of the decision to impose an FPO on the Applicant and that the application for review must be dismissed.
2. It is common ground that the Local Court made an order revoking an apprehended domestic violence order ("the AVO") that was imposed on the Applicant. That Order was made after the expiry of the AVO.
3. Linked to the issue of the Tribunal's jurisdiction is an issue in regard to the Local Court's power to revoke an expired AVO and a related issue as to the power to issue a licence or permit to a person who has been subject to an AVO that has been revoked after expiry.
4. These issues are largely matters of statutory interpretation and do not involve any factual dispute. Each of the parties has provided submissions in relation to these issues.

The Respondent's position

1. The Respondent contends that the Local Court did not have power to make the order to revoke the AVO after its expiry. The Respondent contends that this argument is based on the proper construction of the relevant provisions of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) ("the CDPV Act").
2. The Respondent notes that the CDPV Act previously conferred on the Local Court an express power to revoke expired AVOs. However, 2016 amendments made to that Act removed that express power.
3. The Respondent's position is that the Local Court's order to revoke the apprehended domestic violence order was affected by jurisdictional error and of no legal effect, and accordingly that the Applicant falls within section 11(5)(c) of the Firearms Act. The Respondent contends that the Applicant has been subject to an apprehended violence order and the exception for "an order that has been revoked" does not apply to him. Therefore, the licence application must be refused under section 11(5) and the Applicant is barred from applying for a review of the FPO under s 75(1A) of the Firearms Act.

The Applicant's position

1. The Applicant argues that the Local Court has power to revoke an AVO after it has expired so long as the application for revocation is made before expiry of the AVO. Therefore, he contends that the Local Court's decision to revoke the AVO was not affected by jurisdictional error.
2. In the alternative, the Applicant argues that the Commissioner is estopped from arguing that the Tribunal does not have jurisdiction.

The agreed facts

1. The parties have agreed on the following facts: 1. On 24 October 2017, the Local Court sitting in Kempsey imposed the AVO on the Applicant for the protection of a named individual ("the protected person"). The AVO had an expiry date of 23 October 2018. 2. On 20 September 2018, the Applicant filed an application to revoke the AVO in the Local Court. That is, before the AVO expiry date. 3. On 28 June 2019, the Local Court sitting in Windsor made an order revoking the AVO. That is, after the AVO expiry date. 4. On 18 October 2021, the Commissioner of Police, by his delegate, decided to impose an FPO on the Applicant. 5. On 10 November 2021, NSW Police served the FPO on the Applicant. 6. On 26 November 2021, the Applicant filed in the Tribunal an application for administrative review of the decision to impose an FPO on him.

Applicable legislation

1. Section 75 of the Firearms Act provides: 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - ... (f) a firearms prohibition order made against the person, (1A) Despite subsection (1), a person may not apply for a review of a firearms prohibition order made against the person if the person would be required under section 11(5) or 29(3) to be refused a licence or permit (a disqualified person) had the person not been subject to a firearms prohibition order.
2. Section 11 of the Firearms Act deals with the issue of licences. Section 11(5)(c) provides: 11. General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (5) A licence must not be issued to a person who - … (c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked), …
3. The power of the Local Court to make, vary or revoke AVOs are conferred by the CDPV Act. Section 72 of the CDPV Act defines: 72 Definitions In this Division - application means an application for the variation or revocation of a final apprehended violence order or interim court order. interested party, in relation to an order, means each of the following - … (d) the defendant.
4. An application for the revocation of an AVO is made pursuant to section 72A which provides: 72A Making of application - general (1) An application may be made to a court at any time. (2) An application may be made only by a police officer or by an interested party in relation to the order. (3) An application must set out the grounds on which the application is made and, in the case of a variation, the nature of the variation sought. This subsection does not limit the powers of the court.
5. The power to vary or revoke a final AVO is set out in section 73 of the CDPV Act which provides: 73 Variation or revocation of final apprehended violence orders and interim court orders (1) The court may, if satisfied that in all the circumstances it is proper to do so, vary or revoke a final apprehended violence order or interim court order. (2) In particular, a final apprehended violence order or interim court order may be varied under this section in any one or more of the following ways - (a) by extending or reducing the period during which the order is to remain in force, (b) by amending or deleting any prohibitions or restrictions specified in the order, (c) by specifying additional prohibitions or restrictions in the order. (3) The court may decline to hear an application in respect of an order if the court is satisfied that there has been no change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order. (4) A final apprehended violence order or interim court order is not to be varied or revoked on the application of the defendant unless notice of the application has been served on each protected person to whom the order relates. (5) A final apprehended violence order or interim court order is not to be varied or revoked on the application of the applicant for the original order or protected person unless notice of the application has been served on the defendant. (6) Notice of an application must be served personally or in such other manner as the court hearing the application directs. (7) Despite subsection (5), the court may make an order extending the period during which the final apprehended violence order or interim court order is to remain in force without notice of the relevant application having been served on the defendant, if the applicant lodged the application before the day on which the apprehended violence order or interim court order is due to expire. (8) If an application for the extension of a final apprehended violence order or interim court order is made before the order expires, the order is taken to continue in force until the application is dealt with by the court. (9) Unless sooner revoked, an order extended under subsection (7) ceases to have effect 21 days after the order extending it is made or on an earlier date specified in the order extending it. However, further orders may be made from time to time under that subsection before the extended order ceases to have effect.
6. Prior to 3 December 2016, the CDPV Act conferred on the Local Court an express power to revoke expired AVOs. At that time, section 72 of the CDPV Act provided: 72 Application for variation or revocation of final apprehended violence orders (1) An application may, at any time, be made to a court for the variation or revocation of a final apprehended violence order or interim court order. ... (5) An application for revocation of a final apprehended violence order may be made by the defendant even though the order has expired. Subsection (3) does not apply to such an application. Certain consequences result from an apprehended violence order being made against a person if it is not revoked. For example, section 11 of the Firearms Act 1996 provides that a firearms licence must not be issued to a person who is subject to a final apprehended violence order or who at any time in the previous 10 years has been subject to such an order (other than an order that has been revoked). (6) A court may make an order under this Division revoking a final apprehended violence order even though that final order has expired if the court is satisfied that, were that final order still in force, it should be revoked. (7) In applying the provisions of this Division to an application for revocation of a final apprehended violence order that has expired, a reference to a protected person includes a reference to a person for whom the expired order was sought or made. (8) If an application is made by the defendant for revocation of a final apprehended violence order that has expired: (a) the Commissioner of Police is to be notified of the application, and (b) the court hearing the application must take into account (in addition to any other matters that it is required to take into account) the effect that revocation of the expired order may now have on the protected person, having regard to the grounds on which the expired order was made, and (c) the court may order that a further application for revocation of the expired order may not be made by the defendant except with the leave of the court.
7. Section 72 of the CDPV Act was amended by the Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 which commenced on 3 December 2016. Section 72 was recast as set out above and has remained in force at all times relevant to this matter.
8. The Respondent has referred to the Explanatory Note to the Bill that introduced the December 2016 changes to section 72 of the CDPV Act. This explains that: Most provisions of the repealed section 72 are re-enacted in proposed sections 72B-72D. However, provisions which permitted a final apprehended violence order to be revoked after it had expired have not been re-enacted. This gives effect to recommendation 12 of the [Statutory Review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)].
9. Recommendation 12 of that Review was that: Sections 72(5)-(8) of the Act should be repealed so that a person previously subject to an AVO cannot apply for the AVO to be revoked after it has expired.
10. In relation to recommendation 12, the Review explained (references removed): "5.39 Under section 72 of the Act, an AVO may be revoked both during its term of operation and after its term has expired. Sections 72(5)-(8) provide that a Court may revoke an expired AVO if satisfied that if the order was still in force, it should be revoked. This test is based upon the circumstances at the time of the revocation application, not the circumstances when the AVO was in force. 5.40 The provision was inserted into the Act in order to ameliorate the effect of other pieces of legislation, specifically those governing licensing for firearms and other weapons. 5.41 For 10 years following an AVO's expiry, a person who was subject to it cannot hold a firearms licence or a prohibited weapons permit. There is no discretionary power for a Court to enable such a person to hold a license or permit during this period. 5.42 Following the revocation of an expired AVO under section 72 of the Act, a defendant is eligible to apply for a license or permit as though the order had never existed. 5.43 Many stakeholders supported the Act being amended so that a defendant cannot apply for an AVO to be revoked after it has expired. The Chief Magistrate, for example, stated, "the fiction enabled by such provisions is an affront to the legitimacy surrounding the making of the original order". 5.44 The NSW Police Force noted that there is ample provision for a defendant, PINOP or police to apply to revoke an AVO while it is in force. 5.45 The Inner City Legal Centre noted that applications to revoke an AVO after it has expired may distress victims years after the original AVO proceedings. 5.46 Some stakeholders thought that this aspect of the Act should not be changed. 5.47 The review considers that ability to revoke an expired order in order to avoid the consequences flowing from the record of that order's existence is anomalous, unique and undesirable. Any concerns about a defendant's ability to hold a firearms licence or prohibited weapons permit would be better dealt with by introducing a limited discretion into the legislation governing those permits. The review therefore recommends that the Act be amended to delete the provisions that allow a defendant to apply for an expired order to be revoked.

The Respondent's Case

1. The Respondent contends that section 73 does not confer a power to revoke an AVO that has already expired. The Respondent relies on the principle of finality of litigation in support of this contention. It is submitted that it is a central and pervading tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. Exceptions to that principle are ordinarily construed narrowly.
2. Thus, it is submitted, section 73(1) should not be read so as to implicitly confer an unconfined power to reagitate an AVO, any amount of time after it has expired. In that regard, where an order of a court is spent by the effluxion of time, there is nothing upon which a revocation order can operate. If the intention were otherwise, it would be expected that it would have been made express - as it was prior to the commencement of the 2016 Amending Act.
3. Section 73(1) confers a power to both revoke and to vary an AVO. The Respondent submitted that if section 73 applies to expired AVOs, it would have the anomalous consequence that an expired AVO could have its term "varied" and be effectively re-engaged. That is plainly not the intent of the statutory scheme. The scheme anticipates that the term of an AVO will be extended only while it is still in force. The inconsistency inherent in that proposition strongly suggests that it should not be accepted.
4. The Respondent submitted that the repeal of the express provisions plainly demonstrates Parliament's intention that there was no power to revoke expired AVOs.
5. The Respondent contends that as the Local Court does not have power to revoke an AVO that has expired, the Local Court's order was of no legal effect. The revocation order purportedly made by the Local Court was not only made in error but was made beyond jurisdiction. An order to revoke an expired AVO is an order that lies wholly outside the limits of the Local Court's powers.
6. As noted by Gageler J in New South Wales v Kable (2013) 252 CLR 118 at paragraph [56], there is a "critical distinction" between an order made by a superior court of record and the status of that made by an inferior court of record without jurisdiction. Specifically, an order made by an inferior court of record that is made without jurisdiction "has no legal force as an order of that court." Such an order may be challenged collaterally in a subsequent proceeding in which reliance is sought to be placed on it.
7. The Respondent argues that it is clear that Parliament positively intended to withdraw from the Local Court its earlier jurisdiction to revoke expired AVOs. The Local Court did have the jurisdiction to make an order revoking an expired AVO, but Parliament enacted an amendment to remove that jurisdiction.
8. A power to revoke an order that has expired is a fundamentally different kind of power than a power to revoke an order during its term and is treated as such in the CDPV Act.
9. In support of the contention that the Tribunal lacks jurisdiction to deal with the matter, the Respondent refers to the High Court decision in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17. At paragraph [29] Kiefel CJ, Gageler, Keane and Gleeson JJ stated: To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid.
10. The Respondent submits that the exception in section 11(5)(c) is not engaged where an AVO has not been effectively revoked because, properly construed, the reference to "an order that has been revoked" means an order that has been effectively revoked.
11. The Respondent contends because the Local Court's decision is affected by jurisdictional error it follows that the purported revocation of the AVO did not engage the exception to section 11(5)(c) of the Firearms Act. Because the decision lacks statutory force, the AVO has not been revoked.
12. The Respondent submits that the reference to an order that has been revoked should be taken to refer to an order that has been effectively revoked as a matter of law. This is because: 1. such a construction best gives effect to the statutory purpose of the prohibition in section 11(5)(c) as well as the exception to it. The evident purpose of that provision is public safety, by prohibiting the issue of a licence to a person in relation to whom the AVO was issued. 2. The purpose of the exception within section 11(5)(c) is that the court is satisfied that in all the circumstances it is proper to revoke the order. However, that statutory purpose depends on the order to revoke the AVO having been properly and effectively made. 3. Such a construction gives a harmonious operation to the provisions of the Firearms Act and the CDPV Act. Section 11(5) of the Firearms Act should be construed in a way that gives a harmonious operation with the provisions of the CDPV Act in relation to the revocation of AVOs.
13. In the alternative, the Respondent submits that the reference in section 11(5) of the Firearms Act to "an order that has been revoked" should be construed as applying only to an order that has been revoked while in force.
14. It is submitted that it is clear from the extrinsic materials that one of the express purposes of removing the power to revoke an AVO after expiry was to prevent a person subject to an AVO from avoiding the consequences flowing from the record of an order's existence. That purpose would be defeated if a person who was able to have an AVO revoked erroneously was allowed to take advantage of that erroneous revocation.
15. The Respondent submits that on either approach, the Local Court's purported revocation of the AVO made after its expiry did not engage the exception in section 11(5)(c) for an order that has been revoked. As such, the Applicant is a person who must be refused a licence, as he was subject to an AVO within 10 years before the application for the licence was made.
16. It is common ground that the Applicant's application for revocation of the AVO was made before the expiry of the AVO. However, the Respondent submits that it does not follow that the court must have power to revoke the AVO if the AVO has expired by the time that the court purports to make the order.
17. The powers of a court to deal with any matter before it will depend on the legislation conferring powers on the court, and the factual circumstances before it as at the time that it comes to exercise those powers. The relevant facts may change between the time of filing of an application, and the time that an application is heard and determined.
18. In relation to the Local Court application, the underlying factual circumstance of the AVO to which the application related had changed between the time of the filing of the application, and the time at which the court was dealing with the application. The AVO had expired. The Respondent contends that the consequence of that change was that the court did not have power to revoke the AVO at the time that it came to deal with the application.
19. The Respondent further contends that there is nothing inherently unjust or unusual about that outcome.
20. The Respondent does not dispute that section 72A(1) of the CDPV Act provides that at an application for variation or revocation of an AVO may be made "at any time". However, the Respondent submits that the ability to make an application is distinct from the power of the court to revoke the order.
21. That is particularly so noting that the CDPV Act prior to the 2016 amendments also provided for an application to be made "at any time". There were nevertheless express provisions providing both for the making of applications for revocation after expiry and for the making of revocation order after expiry. Those express provisions were deliberately repealed by the 2016 Amending Act. Against that background, the remaining reference to an application being made "at any time" cannot reasonably be read as conferring an implicit power on a court to repeal an expired AVO if an application is made within time.
22. The Respondent notes that section 73(8) of the CDPV Act provides that if an application for the extension of an AVO is made before the order expires, the order is taken to continue in force until the application is dealt with by the court. The Respondent submits that the presence of section 73(8) suggests the need for specific provisions to ensure that the AVO remains in force so that the matter can be dealt with by the court. This highlights by contrast the lack of any such provision in relation to revocation of an expired AVO.
23. The Respondent further submits that it is clear from the extrinsic materials that the amendments were intended to remove both the ability of an applicant to apply for revocation after expiry and the ability of the court to revoke an AVO after expiry. It is submitted that if Parliament had intended to remove only the ability of an applicant to apply for revocation after expiry, while leaving intact the power of the court to revoke an expired order as long as the application had been made in time, it could have done so by repealing only section 72(5), while leaving section 72(6) in place.
24. It is important to recognise at the outset that the former power to revoke an AVO after its expiry was itself unusual. The power was anomalous and unique in that the revocation of the AVO after it had expired had no effect on the operation of the AVO itself. Ordinarily, there would be no need to revoke an AVO after it has expired, because the person the subject of the AVO is in any case no longer subject to the restrictions that were imposed by the AVO.
25. In the present case, the Applicant applied for revocation of the AVO while it was still in force. Had the application been heard and determined while the AVO was still in force, the revocation of the AVO would have had immediate practical consequences in respect of the restrictions imposed by the AVO. However, by the time the application was heard, the only consequence of revoking the AVO, which had expired, was in respect of the Applicant being able to obtain a licence under the Firearms Act. That was precisely the kind of situation that the 2016 amendments were intended to address, and to avoid.
26. The Respondent contends that against that background, there is nothing "unjust" about the fact that the court lacks power to revoke an AVO once it has expired, regardless of whether the application was brought before the AVO had expired.
27. It is not in dispute that the Commissioner did not challenge the jurisdiction of the Local Court at the time of the revocation hearing and has not sought review of the Magistrate's decision. The Commissioner disputes that she is estopped from challenging the jurisdiction of the Tribunal.
28. The Respondent submits that an estoppel cannot operate to effectively extend the Tribunal's jurisdiction. In the same way as jurisdiction cannot be conferred by the consent of the parties, nor can jurisdiction be effectively conferred by an estoppel that would prevent a party from raising a jurisdictional issue or the Tribunal from considering and determining that jurisdictional issue.
29. The Respondent contends that the Tribunal does not have jurisdiction to hear and determine the application and seeks an order that the application is dismissed.

The Applicant's Case

1. The Applicant contends that the AVO was properly revoked and there was no jurisdictional error in relation to the Local Court determination.
2. The Applicant accepts that the CDPV Act does not permit an application to be made by an interested party seeking the revocation of an AVO that has already expired at the time of making the application for revocation.
3. It is not in dispute that the AVO had an expiry date of 23 October 2018. Nor is it in dispute that the Applicant lodged an application for revocation of the AVO on 20 September 2018. The AVO remained in place until it expired on 23 October 2018.
4. The Applicant contends that he initiated the proceedings within time and during the currency of the AVO and therefore he was entitled to pursue his legal remedies in relation to that application.
5. He submits that the CDPV Act does not stipulate nor infer that an action for revocation properly made within time, and compliant with the procedural rules of the court relevant to the proper litigation of the application, could be extinguished by the courts processes. The time taken to determine the revocation application extended beyond the expiry date of the AVO. However, the revocation application remained competent because it dealt with an application to revoke an AVO that was current at the time that the application was lodged.
6. Section 72A of the CDPV Act provides that an application for the revocation of a final AVO may be made to a court at any time. The Applicant submits that he was entitled to make an application at any time from 24 October 2017 to 23 October 2018. He was entitled to make the applications as "an interested party" and he did so.
7. The Applicant contends that the expression "making of application" used in section 72A is consistent with and indicative of the initiation of proceedings. The proceedings were properly initiated and pursuant to section 73(1) of the CDPV Act the court had the power to revoke the AVO "if satisfied that in all the circumstances it is proper to do so".
8. It is not in dispute that the Commissioner was represented by a Police Prosecutor at the Local Court proceedings. There is no suggestion that the Commissioner's representative was incompetent or unable to contest the the application for revocation. The Respondent has conceded that no challenge was made to the jurisdiction of the court at the time of the revocation hearing. The Respondent has also conceded that there was no application for review to a superior court on the basis of jurisdictional or other error on the part of the Magistrate. The Applicant contends that these circumstances raise the issue of an estoppel in relation to the Respondent's contention regarding the Local Court order.
9. Section 73 of the CDPV Act sets out the procedures to be adopted by the court where an application has been made. Subsection 73(7) provides the court with a discretionary power to make orders extending the period during which a final apprehended violence order may remain in force. The Applicant contends that it would be counterintuitive to provide the court with power to order an extension where the application seeks revocation rather than extension. As the Applicant was seeking to revoke a current order, it was implicit in that application that no extension was either relevant to the application or required by the Applicant.
10. The Applicant did not apply for revocation of the AVO after the AVO had been revoked but during its currency. Subsection 73(8) anticipates that once an application has been made, the court would deal with the application. The Applicant's contention is that on 28 June 2019 Her Honour Magistrate Toose dealt with the revocation of the AVO in the form that it was made on 20 September 2018.
11. The Applicant noted the Respondent's reference to the Statutory Review of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). At paragraph 5.44 of the Review (set out at paragraph 26 above) it is observed that the New South Wales Police Force headed by the Commissioner noted that there is ample provision for a defendant, PINOP or police to apply to revoke an AVO while it is in force. The Applicant submitted that the relevant provision is found in section 72A of the CDPV Act. He argues that he was entitled to apply at the appropriate time and he did so.
12. The Applicant submits that it would be totally contrary to the interests of justice and its proper administration to suggest that the determination of the revocation application that was properly made could be defeated by the effluxion of time or for any other reason not associated with the failure of the Applicant to prosecute his application.
13. The Applicant accepts that the Second Reading Speech in relation to the 2016 amendments to the CDPV Act stated that subsections 72(5) - (8) of the CDPV Act were to be repealed so that a defendant could no longer apply for an AVO to be revoked after it has been expired. He submits that as his revocation application was lodged during the AVO's currency he is not captured by the amendments and therefore he was not denied the ability to apply for revocation of the AVO. That is because his revocation application was not lodged after the AVO has already expired.
14. He submits that the legislation allows for the finalisation of an application after the expiration of the AVO provided that application has been made whilst the AVO was current. He further submits that to suggest the legislature intended that the outcome as submitted by the Commissioner is correct would be totally contrary to the language of both the CDPV Act and the material submitted in support of the amendments to be made.
15. A substantial miscarriage of justice would occur if an application that was properly lodged during the currency of an AVO could be defeated by the effluxion of time caused by compliance with court practice and procedure and the listing exigencies of a court hearing schedule. This would be totally contrary to the interests of justice and the intent of the legislation.
16. He submits that the interpretation argued by the Commissioner would allow for an application to be defeated by the use of adjournments by competing litigants, normal listing priorities of courts and other inadvertent delays such as has just been experienced with the covid pandemic.
17. It is accepted that the court system regularly deals with charges, applications, and other proceedings where a cause of action exists, where the proceedings have been properly commenced within time or by leave and where time as a procedural requirement or statutory limitation has expired. The acceptance of this factor in the administration of justice is inherent and explicable.
18. The Applicant contends the Commissioner fails in her arguments and that the application for dismissal must be refused

Discussion

1. It is not in dispute that section 11(5)(c) of the Firearms Act presents a barrier to the Applicant's application if he was subject to an AVO within 10 years before the application was made and the order has not been revoked.
2. I agree with the Respondent that prior to 3 December 2016, the CDPV Act conferred on the Local Court an express power to revoke expired AVOs. Section 72(5) of the CDPV Act provided: (5) An application for revocation of a final apprehended violence order may be made by the defendant even though the order has expired.
3. I agree with the Respondent that the former power to apply for the revocation of an AVO after its expiry was unusual. It is also not in dispute that the CDPV Act no longer provides for an application to be made for an AVO to be revoked after it has expired. The 2016 amendments to of the CDPV Act removed this unusual provision.
4. An applicant who sought the revocation of an AVO prior to the December 2016 amendments would not have needed to rely on the section 72(5) provision unless the AVO had already expired. Parliament's intention was to remove the option of commencing an application for revocation of an AVO after the order has expired.
5. Parliament did not express the intention that any application that was properly lodged during the currency of an AVO could be defeated by the effluxion of time. I agree with the Applicant that it would be totally contrary to the interests of justice and its proper administration if an application that was properly lodged during the currency of an AVO could be defeated by the effluxion of time or for any other reason not associated with the failure of the Applicant. In the absence of a clear indication to the contrary, a construction of the relevant provisions that is consistent with interests of justice and its proper administration is to be preferred to a construction that has the potential to result in substantial miscarriage of justice.
6. In the circumstances of this matter the Applicant's revocation application was not lodged after the AVO has already expired. There is no suggestion that the revocation application failed to comply with any of the requirements set out in section 73 of the CDPV Act or that the application was not properly lodged. In my view, the December 2016 amendments to the CDPV Act do not address this situation. Those amendments are directed towards revocation applications lodged after an AVO has already expired.
7. The principle of finality of litigation does not apply to litigation that was properly commenced but where the effluxion of time affects the effectiveness of the outcome. As Gleeson CJ, Gummow, Hayne and Heydon JJ said in D'Orta Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at paragraph [34]: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be re-opened ..."
8. There is no suggestion that the revocation application had been resolved prior to the time that the Local Court dealt with it on 28 June 2019. I do not agree with the Respondent's contention that the Local Court order to revoke the AVO was futile. The order to revoke the AVO clearly has implications for the Applicant's substantive application. In those circumstances I am satisfied that section 73(1) confers a power to revoke an expired AVO if the revocation application was properly made while the AVO is still in force.
9. The power to revoke a final AVO is a discretionary power. However, the court must be satisfied that in all the circumstances it is proper to make the order that is sought. Further, the court may decline to hear an application in respect of an order if the court is satisfied that there has been no change in the circumstances on which the making of the order was based and that the application is in the nature of an appeal against the order. There are therefore safeguards in place to avoid misuse of the provision.
10. There is no suggestion in this matter that any issue was raised in regard to the reasonableness of the Local Court order. It is not suggested that Magistrate Toose could not have been satisfied that in all the circumstances it was proper to make the order that is sought.
11. In any event, the Respondent could have sought review of the Local Court decision and did not do so. The Respondent has not sought a review on the basis of jurisdictional or other error on the part of Her Honour Magistrate Toose. This is not the forum to undertake such a review.
12. In my view, the Applicant was entitled to apply for revocation of the AVO prior to its expiry and he did so. Her Honour Magistrate Toose made an order revoking the AVO. In those circumstances, the Applicant is not barred from applying for a review of the FPO under s 75(1A) of the Firearms Act. Therefore, the Tribunal has jurisdiction to hear and determine the application.

Estoppel

1. For a useful and detailed discussion on the law of estoppel see Pearson v Clark [2016] NSWCATAP 134.
2. The Applicant has raised the question of whether the Respondent is estopped from challenging the jurisdiction of the Tribunal in circumstances where the Commissioner did not challenge the jurisdiction of the Local Court at the time of the revocation hearing and has not sought review of the Magistrate's decision.
3. In considering the Applicant's contention it is useful to have regard to the principle of res judicata.
4. In Blair v Curran (1939) 62CLR 464 at pages 531-532 Dixon J explained: A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgement, decree or order necessarily established as the legal foundation or justification of its conclusion. … Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established."
5. It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in judgment which conflicts with an earlier judgment. Clearly, any decision of this Tribunal that accepts the Respondent's contentions in regard to the Local Court order would conflicts with that order.
6. In accordance with the principle set out by the High Court in Port of Melbourne Authority v Anshun (1981) 147 CLR 589, a party may be precluded from raising a matter which should properly have been raised in earlier proceedings. At pages 602 - 3 Gibbs CJ and Mason and Aiken JJ set out the test to be applied to establish such an estoppel where they said: … there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely. Generally speaking it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings…
7. The Applicant has clearly raised the issue that the Commissioner did not challenge the jurisdiction of the Local Court at the time of the revocation hearing and has not sought review of the Magistrate's decision. It is clearly arguable that those issues were of such significance to the matter before Magistrate Toose that it would have been unreasonable not to raise them at the time of that hearing.
8. There appears to be considerable merit to the Applicant's estoppel arguments. However, in the circumstances, I do not need to determine these issues because I am satisfied that the Tribunal has jurisdiction to hear and determine the application.
9. I am satisfied that the exception provided for in section 11(5)(c) of the Firearms Act applies in the circumstances of this matter. The Applicant was subject to a relevant apprehended violence order and that order has been revoked. Therefore, the Applicant is not barred from applying for a review of the FPO under s 75(1A) of the Firearms Act.
10. The Tribunal has jurisdiction to hear and determine the application. It follows that the Respondent's application for dismissal the application for review of the FPO must be refused.
11. The matter needs to be relisted for further directions to allow a timetable to be set for the further progress of the matter. If the parties are able to agree on a timetable, orders can be made in chambers without the need for either party to attend the directions hearing.

Order 1. The application for dismissal of the application for review of the decision to impose a firearms prohibition order is refused. 2. The matter is listed for directions on 17 January 2023 at 10:30 am.

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: 18 November 2022