Mr Craig Holdsworth ("the Applicant") has applied to the Tribunal seeking the revocation of a firearms prohibition order made against him in 1986. As a preliminary issue he has sought leave to bring that application out of time. The Commissioner of Police ("the Respondent" or "the Commissioner") has opposed the application.
The preliminary matter came before me for hearing on 7 November 2018. On that occasion I agreed that the matter should proceed in the Tribunal in the absence of an internal review and I made orders extending the time for filing of the application to 9 July 2018 - the date on which the application was filed.
The Respondent has requested written reasons for that decision. These reasons are provided in response to that request.
[2]
Power to extend time
Section 41 (1) of the Civil and Administrative Tribunal Act 2013 (the "NCAT Act") provides:
41 Extensions of time
(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.
The Tribunal has considered applications under section 41 and its predecessors on a number of occasions.
In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel said at paragraphs [18] - [22]:
18. Under s 41, the Appeal Panel has power to grant an extension of time in which to appeal in the present matter. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings".
19. An informative exposition of the role and nature of provisions which permit a Court or Tribunal to extend the time limits established for the orderly conduct of proceedings, including the time in which to lodge an appeal, is found in the decision of McHugh J sitting as a single justice of the High Court in Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2]:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VicRp 27; (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935:
"The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion."
20. The Courts have identified in numerous cases various factors that should be considered in deciding whether to grant an extension of time in which to appeal. Substantially the same principles have also been applied by the Appeal Panel of the Administrative Decisions Tribunal (ADT), one of the predecessors of the Tribunal, in relation to appeals in the ADT - Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16], Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. These authorities provide useful guidance on the principles that are to be applied by the Appeal Panel in this regard.
21. Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice.
22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];
(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a) The length of the delay;
(b) The reason for the delay;
(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and
(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].
At paragraph [35] the Appeal Panel suggested that "it may be that the appellant would have to satisfy the Panel that her case has more substantial merit than merely being fairly arguable". This suggestion is made by reference to views expressed by Hodgson JA in Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at paragraph [14]:
14 In my opinion, there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable.
The Appeal Panel in Jackson v NSW Land and Housing Corporation was dealing with an application to extend the time for an appeal. Clearly, some considerations in relation to an application to extend the time for an appeal will not be applicable to this matter. For example, this is not a matter in which the Respondent has already obtained a decision in its favour.
The Respondent has correctly summarised the matters that are relevant to the Tribunal's discretion to extend time as including:
1. The length of delay;
2. The applicant's explanation for failing to file in time;
3. Any prejudice caused to a Respondent as a result of the delay;
4. The apparent merits of the Applicant's case; and
5. The public interest
The Respondent contends that in this matter the Applicant must show that his case has more substantial merit than merely being fairly arguable.
[3]
Background
The background to this application is not in dispute in any relevant respect.
The Applicant is currently subject to a firearms prohibition order ("FPO") imposed in 1986. The FPO was issued under section 69 of the then in force Firearms and Dangerous Weapons Act 1973, effective from 15 March 1986 - its date of service.
The imposition of the FPO followed the Applicant's conviction and sentence of imprisonment for kidnapping in which he was involved in 1985. At that time the Applicant was aged 21 and he pleaded guilty to the offence.
At the time of service of the FPO, section 24 of the Firearms and Dangerous Weapons Act 1973 provided an appeal mechanism from a decision to impose a FPO or a decision to refuse to revoke a FPO. Section 24 provided:
Appeals. 24.
(1) For the purposes of this section, a person is aggrieved by a decision in respect of him made by the Commissioner only if -
…
(k) a firearms prohibition order is made in respect of him; or
(l) being a person in respect of whom a firearms prohibition order is in force -the Commissioner refuses to revoke the order when requested in writing by the person so to do not less than 5 years after the order was made.
(1A) Where a request for the revocation of firearms prohibition order has been made as referred to in subsection (1)(l), the Commissioner shall be deemed to have refused to revoke the order if the Commissioner does not, within 30 days after the date of service of the request upon a member of the police force, revoke the order or notify the person who made the request that the request has been refused.
(2) A person who is aggrieved by a decision in respect of him made by the Commissioner may, in accordance with subsection (3), appeal against that decision to a court of petty sessions held before a stipendiary magistrate.
(3) Any such appeal may be made, within twenty-one days after the decision was notified to the person entitled to appeal-
(a) except as provided by paragraph (b) - to the court of petty sessions nearest to the place where that person ordinarily resides; or
(b) where the applicant is an aggrieved person -
…
(v) under subsection (l)(k) - to the court of petty sessions nearest to the place where he ordinarily resides.
(4) The decision of the court of petty sessions shall be final and shall be binding on the appellant and on the Commissioner.
Thus, pursuant to section 24(3), a person subject to a FPO had 21 days in which to appeal the imposition of the FPO. Pursuant to section 24(1)(l), a written request for the revocation of the FPO could not be made less than 5 years after the order came into force. Therefore, the earliest that the Applicant could have sought to have the FPO revoked was 16 March 1991.
The FPO was served by Senior Constable Parrington. A notation on the FPO indicates that at the time of service Senior Constable Parrington "explained section 24 of the Act and he indicated to me that he had no intention of lodging an appeal".
The Affidavit of service by Senior Constable Parrington states that the FPO was served on the Applicant at Alstonville Police Station and that he read and explained the nature and effect of the FPO to the Applicant. The Affidavit of service makes no mention of whether Senior Constable Parrington informed the Applicant that he had rights under section 24 of the Firearms and Dangerous Weapons Act 1973.
The Applicant's evidence is that he vaguely recalls a police officer going to his house in Alstonville and handing him the FPO. He does not have any recollection of being handed a document at Alstonville Police Station or being notified that he had any appeal rights in relation to the making of the FPO or that he could then seek its revocation after 5 years at the time of service of the FPO. His evidence is that he only became aware of the FPO in 2017 when his application for a firearms licence was refused.
[4]
The Tribunal's jurisdiction
The question of the Tribunal's jurisdiction to deal with the substantive matter is not in issue. The Firearms and Dangerous Weapons Act 1973 has been repealed. However, the savings and transitional provisions in its successor legislation have provided that the FPO continued in force. See Schedule 1, clause 2 of the Firearms Act 1989; Schedule 3, clause 11 of the Firearms Act 1996 ("the Firearms Act").
Pursuant to section 73(1) of the Firearms Act the Commissioner may make a FPO against a person. The Commissioner may revoke a firearms prohibition order at any time: section 73(3). The imposition of a FPO is an administratively reviewable decision. The Tribunal has jurisdiction to review a decision to make a FPO pursuant to section 75(1)(f) of the Firearms Act 1996 and section 9 and section 55(4)(b) of the Administrative Decisions Review Act 1997 ("the ADR Act").
However, section 75(1A) of the Firearms Act provides:
(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.
There is no prescribed time limit on when an application for revocation of an FPO may be made pursuant to section 73(3) of the Firearms Act.
Pursuant to section 63 of the ADR Act the Tribunal is to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any law, and may exercise all relevant functions conferred or imposed on the Commissioner.
[5]
The Evidence
The Applicant provided affidavit evidence, appeared at the hearing and was cross-examined.
He did not dispute his criminal history. He acknowledged his kidnapping conviction and also a common assault conviction from 1997. He also stated that between 2013 to 2015 he was a member of the Rebels Motorcycle Club ("the Rebels"). His evidence is that he is no longer a member of that club although some of his family are members. He also agreed that in 2015 he was charged in Qld with respect to possession of a knife and that the charges were found proven but no conviction recorded. His evidence is that that charge related to a broken pocket knife that was used as a bottle opener.
He is now seeking that the FPO be revoked so that he can engage in activities that require him to hold a firearms licence and so that he is able to travel and enter countries such as the United States.
He explained that he did not bring an application seeking to have the FPO any earlier because he was not aware that the FPO was in place and further that he didn't know that he could bring such an application. While the Respondent holds a number of information reports in relation incidents said to involve the Applicant, no action was taken in in regard to those incidents other than obtaining an interim AVO which was subsequently withdrawn.
In regard to the offence that resulted in the issue of the FPO his evidence is that in June 1985 he committed the offence of kidnapping. He was associated with the Life and Death motorcycle club. He was with a group of older men who took another man against his will. The victim was shot by one of the men in the group. The Applicant was charged with the kidnapping and he pleaded guilty. He stated that at the time he was not familiar with the court system and had no money.
At the time he was 21 years old and the father of a 5 year old but he was separated from the child's mother. He came from a broken family and had left home when he was 13 years old. He was scared, unemployed and uneducated. He also abused alcohol and drugs.
He was sentenced to two years imprisonment for the offence, with a non-parole period of 9 months. While in prison he undertook drug and alcohol counselling and started to learn how to read and write. He was released after being in prison for 9 months.
His evidence in regard to the service of the FPO is that he vaguely recalls a police officer coming to the house where he was living and handing him a document that he now knows was the FPO. He said that at the time he I did not really understand what it was but vaguely understood that it meant that he was not allowed to have or use any guns. He did not have a solicitor and could not afford to obtain legal advice in relation to the FPO.
He did not try to have the FPO revoked at the time. His education was limited. He did not know he had any rights to appeal in relation to the FPO, didn't have a solicitor and couldn't afford one. Further, he didn't understand the order at all and subsequently forgot it was in place. When he applied for a firearms licence in 1998 and 2017 he had completely forgotten about it.
In regard to his personal circumstances, the Applicant's evidence is that he is now 54 years old with 5 children and 12 grandchildren. He is no longer the person he was in 1985. He has nothing on his criminal record for over twenty years. His evidence is that he has completely reformed himself and his life over the thirty two years since committing the offence that led to the FPO being made. He is now a respectable and successful business owner, as well as an upstanding member of the community of good character and held in good fame.
In regard to his employment history, the Applicant's evidence is that he worked in various labouring roles for many years. His circumstances changed after he started working with the State Railway in 1990. He worked his way up from labourer, ganger, supervisor and project manager to working directly for the General Manager between 2002 and 2003. He was subsequently offered a position with ARTC and while there he decided to become a railway contractor. In 2005 he set up a rail infrastructure contracting business called CR ZERO 05 Pty Ltd trading which traded as TPD Engineering. It now trades as CR Rail. The company has an estimated annual turnover of $18 - 20 million with depots in Dubbo, Yatala and Rockhampton. He is the principal shareholder and managing director of the company.
CR Rail employs roughly 35 permanent employees. These include commercial managers, engineers, labourers, about 160 casual employees and 20 - 30 sub-contractors. As managing director of CR Rail he is engaging in a program for mentoring newly released inmates assisting them to undergo training and employment. He also works with Energy Skilled QLD, a Federal Government sponsored company, in training indigenous, uneducated people to skill up to come into the Railway workforce. He has assisted with the training of up to 160 personnel through this program.
In regard to his reasons for seeking the revocation of the FPO and his delay in bringing that request, his evidence is that over the years he was focused on raising and caring for his family and developing and managing his business. As a result he forgot about the FPO. It was brought to his attention in 2017 when he decided that he wanted to get into recreational hunting and vermin control and he applied for a firearms licence to enable him to do so. That application was refused on the basis of the FPO. An earlier application in 1998 was declined on the basis of his criminal history but made no mention of the FPO.
He also understands that having a Firearms Prohibition Order impacts on his ability to travel and enter countries such as the United States, where he would like to go to purchase and look at machinery to import.
[6]
Submissions
Each of the parties has provided submissions in support of their case.
[7]
The Applicant's submissions
The Applicant submits that he made the application to the Tribunal within a reasonable time following the administratively reviewable decision, given:
1. he was unaware of the full ramifications and effect of the FPO at the time it was served in 1986;
2. he was unaware of his rights of appeal and revocation at the time of service of the FPO in 1986;
3. he had forgotten the FPO was in force from shortly after it was served;
4. his circumstances have significantly changed since the FPO was served in 1986;
5. he only became aware of the FPO again when he applied for a firearms licence in 2017, which licence was declined on the basis of the FPO;
6. he has sought unsuccessfully to have the FPO revoked by the Commissioner;
7. the Commissioner has refused to conduct an internal review of the decision to impose the FPO.
Mr Cairn also submits that the provision in section 75(1A) of the Firearms Act indicates the legislative intention that there could be a delay of at least 10 years in applying for a review of a firearms prohibition order if the person was otherwise a "disqualified person".
Mr Cairn points to the Respondent's reasons for refusing the Applicant's application for a firearms licence in 1998. The refusal made no mention of the FPO. He submits that the fact that the Applicant made the application is consistent with his evidence that he did not know about the FPO and the fact that the refusal was based on other grounds did not alert him to the existence of the FPO. He submitted that there was no basis for suggesting that the Applicant should have taken steps in relation to the FPO in light of the 1998 refusal. He further submitted that when the 2017 application was refused on the basis of the FPO he acted quickly to deal with the issue.
He submits that the Applicant's case has tsubstantial merit and the prospects of success in the substantive matter are strong.
[8]
The Respondent's submissions
The Respondent refused to revoke the FPO because:
1. all the relevant offences were committed some time ago;
2. those offences were very serious;
3. information received by the Respondent suggests that the Applicant is still associated with the Rebels Outlaw Motorcycle Gang; and
4. the Applicant is not fit in the public interest to have access to firearms, firearms parts or ammunition.
The Respondent has filed written submissions and Mr Dalla-Pozza also made oral submissions. In opposing the application the Respondent particularly points to:
1. the considerable period of delay since the date of the FPO i.e. a delay of approximately 32 years in making of the application to the Tribunal;
2. the absence of any adequate justification for that delay;
3. the prejudice that this delay has caused to the Respondent;
4. the fact that the Applicant cannot demonstrate that his application has "apparent merit"; and
5. the public interest which is against the time being extended.
[9]
Length of the delay
The length of the delay in this case is very considerable. The Respondent submits that the age of the decision is a powerful indication that the extension of time ought not to be granted. It further submits that the length of the delay increases the onus on the Applicant to justify it.
[10]
The Applicant's explanation for the delay
In relation to the Applicant's assertion that he was not informed of his appeal rights at the time he was served with the FPO, the Respondent points to the file note of Senior Constable Parrington. This file note indicates that he explained those rights to the Applicant and that the Applicant had indicated that he no intention of appealing.
In any event, the Respondent submits that even if the Applicant's explanation is accepted as plausible, the explanation is inadequate. The Applicant admits that he was aware of the FPO and its effect in 1986. He has raised his circumstances at the time but has not offered any adequate explanation as to why he did not seek advice as to the effect of this order at some later point when his circumstances had changed. The Respondent submits that the fact that the Applicant forgot that the FPO was in existence is not an adequate explanation.
It is common ground that the Applicant was refused a firearms licence in 1998. The Respondent submits that the Applicant would have been aware, or should have been aware, that the FPO was in operation in 1998 and yet took no steps to address it at that time.
[11]
Prejudice to the Respondent
The Respondent submits that the extreme length of the delay had caused it some prejudice. It has not been able to obtain evidence from Senior Constable Parrington to answer the Applicant's evidence that he was not advised of his appeal rights when served with the FPO.
The Respondent also submits that it is prejudiced by not being able to refer to material from the time that the FPO was issued or when the firearms licence was refused in 1998. This material may answer the Applicant's evidence by showing that the Applicant was made aware of the existence of the FPO in 1998.
[12]
Apparent merits of the Applicant's case
The Respondent submits that the Applicant needs to show that his arguments in the substantive case have substantial merit and that he has not demonstrated that he has a strong case. In order to succeed, the Applicant would need to establish that he is now a person who is fit, in the public interest, to have possession of a firearm
The Respondent submits that information as recent as 2016 suggests that the applicant is still associated with the Rebels and that he is, in fact, a current member of the Rebels and maintains current links with members of that gang.
The Respondent also points to records held in relation to the Applicant which indicates that the Applicant has not been free of allegations of violent criminal conduct since 1985. His record relevantly indicates:
1. convictions for offensive conduct and carry a cutting weapon in 1994;
2. convictions for destroy or damage property and assault occasioning actual bodily harm in 1997; and
3. a finding in the Gatton Magistrates Court in October 2015 that he was in possession of a knife in a public place or school and he was fined $350.
In addition, Police holds information that indicates that:
1. in February 1996 the Applicant was involved in a violent assault. After this alleged incident, Police applied for, and obtained, an Interim Apprehended Violence Order on behalf of the victims;
2. in June 2004, police needed to be called to the Applicant's home address after reports that he was being verbally abusive to his partner; and
3. in March 2005 the Applicant was involved in a violent assault.
The Respondent concedes that the Applicant has had no convictions recorded since 1997. However, it submits that the Police records cast a different complexion on the Applicant's claims to have been of good behaviour in recent times.
The Respondent notes that the Applicant's convictions are "spent" but submits that this would not preclude the Tribunal taking the conduct that underlies the conviction into account when determining the final proceedings.
The Respondent submits that it is unlikely that the Tribunal would find that the Applicant is now a fit person in the public interest to hold a firearms licence or that it is in the public interest for him to have possession of a firearm.
The Respondent notes that section 3 of the Firearms Act sets out the Act's principles and objects and makes it plain that the possession and use of firearms is a privilege subservient to the overriding need to ensure public safety. An applicant for a licence needs to establish a genuine reason for possessing and using firearms and there should be strict requirements in relation to licensing of firearms.
The Respondent submits that far from being able to establish that his case has "substantial merit", the Applicant could not even establish that his case is reasonably or fairly arguable. This counts against the discretion being exercised in favour of the Applicant.
[13]
The public interest
The Respondent submits that the Applicant has not been able to demonstrate a particular public interest associated with him being granted this extension of time. Further, the matters raised by the Respondent and the public protective purposes of the Firearms Act suggest that the public interest lies against granting the extension of time.
[14]
Discussion
In April 2018 the Applicant sought to have the FPO revoked pursuant to the Commissioner's power in section 73(3) of the Firearms Act 1996. This was unsuccessful.
It is common ground that the FPO was issued in 1986 or that it was served on the Applicant at Alstonville in March 1986. The parties do not agree in regard to what information Senior Constable Parrington gave to the Applicant at the time he served the FPO.
The Applicant's evidence is that he understood that the FPO affected his ability to have firearms then but he did not understand the long term consequences.
Senior Constable Parrington's affidavit of service made no mention of informing the Applicant of his appeal rights. The notice itself does not explain those rights.
The Applicant's evidence is that he was not given notice of his appeal rights. He did not understand he had appeal rights. He was ill-educated and he had no legal advice available to him at that time and no real means with which to pay for legal advice. I accept that evidence.
I also accept that from the time of the service of the FPO up until the time that he applied for a firearms licence in 1998 the Applicant did not have any understanding that there was a FPO in place that would prevent him from holding a firearms licence. The fact that he made applications in 1998 and 2017 is consistent with that position.
I do not agree with the Respondent that it is simply a matter of the Applicant forgetting about the FPO. If that were the situation, that is, that he had known that the FPO existed but had forgotten about it, his application would fail. That would not provide a basis to extend the time for bringing of the application.
It is not in dispute that the Applicant's 1998 firearms licence application was refused. However, the refusal was not based on the existence of a FPO. The basis for the refusal of the firearms licence was that he was not a fit and proper person to hold the licence and that it was not in the public interest for him to do so.
It is apparent from the evidence that the FPO was not the basis for refusing the licence application. He had understood that the refusal was related to his criminal history. If the existence of the FPO had been raised at that time it would have focused the Applicant's mind very clearly and he could have taken steps to address. He had also understood that plans that he had to travel to the US were affected by his criminal history.
Neither the refusal of his firearms licence application nor the refusal of his request to travel to the US raised the existence of the FPO. He had a reasonable basis for thinking that the refusals were related to his criminal history. There was no reason to suggest that he should have made enquiries to see whether a FPO was in place.
He made a further firearms licence application in 2017. That application was refused because of the FPO. I accept that the Applicant did not become aware of the FPO until he was notified of the refusal of his 2017 firearms licence application. From that time he acted quickly to try and have the matter addressed.
[15]
The apparent merits of the Applicant's case
I agree with the Respondent that in the circumstances of this matter the Applicant must show that his case has substantial merit. The length of delay is significant and his explanation for the delay conflicts with the material relied on by the Respondent.
This is not an application for a firearms licence. It is an application seeking the revocation of the FPO. The Firearms and Dangerous Weapons Act 1973 anticipated a period of delay in seeking revocation of an FPO. The Applicant could not seek revocation of the FPO for at least 5 years from the date of service on him. The earliest that the Applicant could have sought to have the FPO revoked was 16 March 1991. Section 75(1A) of the Firearms Act also anticipates that there could be a period of delay of at least 10 years in seeking revocation of an FPO.
The evidence shows that the Applicant's circumstances have changed markedly since the time that the FPO was issued. At the time of the kidnapping offence the Applicant was unemployed, uneducated, illiterate and abused alcohol and drugs. He came under the influence of motorcycle gang. The kidnapping offence involved older members of that motorcycle gang. In prison he began learning to read and write and had sought drug & alcohol counselling. At the time of service of the FPO he had just been released from prison. He had removed himself from his previous associates, including the motorcycle gang.
Since his release from prison he has had decades of employment. In 2005 he set up a railway contracting business which has thrived and now employs and trains hundreds of people. He has made significant contributions to charity, disadvantaged groups and the community. It has been over 30 years since the time of the making of the FPO, and it has been over 20 years since the time of his last conviction.
He has acknowledged his kidnapping conviction and also a common assault conviction from 1997. In 2015 he was charged in Qld with respect to possession of a knife. That charge was found proven but no conviction recorded. He has no other criminal matters on his record. That incident appears to me to be relatively minor.
He contends that he has been rehabilitated and that he has demonstrated that rehabilitation over the course of over 20 years of good behaviour.
The Respondent has identified a number of other matters that it contends should be weighed against that history. Those matters have either not been tested or are denied.
The Respondent has also raised the fact that the Applicant was a member of the Rebels. He does not deny that he was a member from 2013 to 2015. The Respondent referred to information that suggests that the Applicant is still associated with the Rebels. The Applicant denies that he is a member but conceded that some of his family are members. I note that membership of the Rebels is not a criminal offence. The Rebels is not a prohibited organisation. The fact that somebody belongs to an outlaw motorcycle gang does not of itself mean that they are not fit and proper to hold a licence.
As the Tribunal said in Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [70]: "not everyone who is in an outlaw motorcycle gang presents a risk to the public."
I note that in Stamatelatos the Tribunal was not satisfied that Mr Stamatelatos' continued membership of the Mongols OMCG rendered him as lacking in the requisite honesty as an element of fitness and propriety to hold a firearms licence.
If it were proved that the Applicant continues to to be a member of the Rebels, the fact of membership might be relevant to these proceedings in that it would suggest that he lacked frankness in dealing with the Tribunal. There is no basis on which I could draw that conclusion.
No evidence has been presented that suggests that the Applicant has been guilty of any recent conduct in relation to his association with the Rebels that would disqualify him from seeking a review of the FPO.
Without evidence of conduct by the Applicant that would indicate that he should not be permitted to possess firearms, mere association with the Rebels would not be fatal to the substantive application.
The Respondent contends that it is not in the public interest for the Applicant to hold a firearms licence. This argument is essentially based on his criminal history, a number of other matters that have been identified in the police records and the Applicant's association with the Rebels. In my view, without further information relating to the Applicant's conduct, these matters would not be fatal to the substantive application.
As I have noted, this is not an application for a firearms licence. In my view, the Applicant's case in regard to the revocation of the FPO has substantial merit.
[16]
The public interest
Consideration of the public interest allows for matters going beyond the applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system. In my view, the application for the revocation of the FPO does not raise significant public interest issues as it does not result in the issue of a firearms licence. If successful, it would merely give the Applicant the rhight to apply for a firearms licence.
In contrast, I agree with Mr Cairn submission that it is necessary for the Tribunal to deal with the application in order to protect the Applicant's interests. This is because his avenues to seek revocation of the FPO are limited.
The Commissioner may revoke a FPO pursuant to section 73(3) of the Firearms Act. However, there is no appeal mechanism available should the Commissioner refuse to do so. The Firearms Act does not provide for an appeal against a refusal to revoke a FPO. If the Applicant had been aware of the full ramifications and effect of the FPO at the time it was served in 1986 or in the early 1990s he could have availed himself of the opportunity to seek revocation of the FPO, and if denied, seek to appeal that to the court, as then provided for in section 24 of the Firearms and Dangerous Weapons Act 1973.
Mr Cairn submitted that there is nothing in the principles or objects of the Firearms Act that would prevent the Tribunal from exercising its discretion to extend time for this application or to allow this application for review to be filed out of time. The Applicant should now be given the opportunity to bring the application in circumstances where other avenues to protect his interests are not available. The interests of justice require that the Tribunal extend time for this application to be filed out of time to protect the Applicant's interests.
I agree with that submission. I do not consider the public interest to be a factor that would prevent the extension of time to lodge the application.
[17]
Any prejudice caused to the Respondent as a result of the delay
I accept that the Respondent would be put to some expense in responding to this application. However, in my view any prejudice to the Respondent from the delay would be minimal.
There is no doubt that the delay may affect the Respondent's ability to locate all its records relating to the imposition of the FPO. However, responding to the application should not require the Respondent to revisit the events of 1986 to any great extent. There is no dispute about the Applicant's convictions and there is no doubt that the FPO was issued. The evidence that will be of most relevance to the substantive application will be in relation to recent events. I do not think the prejudice that would flow would be any greater than in any other than the Respondent had to defend.
In my view, any prejudice caused to the Respondent as a result of the delay would be minimal and should not prevent an order extending the time for bringing this application.
[18]
Finding
On the totality of the material before me it is my view that the interests of justice require that the time to file the application to the Tribunal should be extended to 9 July 2018. That is, to the date on which the application was filed.
[19]
Order
1. The time for filing of the application is extended to 9 July 2018.
[20]
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
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Decision last updated: 20 March 2019