Joiner v Commissioner of Police, NSW Police Force

Summary of issues on appeal.

1. Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
2. The submissions made on appeal are lengthy. We do not intend to summarise them in detail. They are sufficiently referred to in the discussion below.
3. It suffices for the present purposes to say that in her initial submissions the appellant argued that the decision gave rise to questions of law. 1. Whether the Tribunal gave adequate reasons for decision. 2. Whether the Tribunal correctly applied the public interest test. 3. Whether the decision made by the Tribunal was unreasonable.
4. During the appeal hearing the following issues arose and were the subject of final submissions. 1. Whether an extension of time in which to lodge the appeal should be granted. 2. Whether the appeal is of any practical utility, and the consequences if it is not.

The principles applicable to applications to extend time.

1. Section 41 of the CAT Act provides: (1) The Tribunal may, of its own motion or on an 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.
2. The principles to be applied by the Appeal Panel on applications for an extension of time in which to appeal were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Appeal Panel relevantly said: 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) 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) 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) 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) 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].

Consideration of factors relevant to an extension of time.

Length of and explanation for delay

1. The appellant lodged the notice of appeal 15 days late. She therefore requires an extension of time.
2. The appellant's explanation for the delay is that the solicitor she instructed to file the appeal did not do so despite having sufficient time. She has since dispensed with his services.
3. We think this is a satisfactory explanation for the failure to lodge the notice of appeal in time.

The Appellant's prospects of success.

1. On an initial consideration, one issue of law raised by the appellant impressed us as having a prospect of success. This went to the Tribunal's consideration of whether it was not in the public interest for the appellant to hold a firearms licence: see s 24(2) of the Firearms Act and cl 20 of the Firearms Regulation 2017 (NSW). The Tribunal at pars [60] to [67] of its decision outlined the principles to be applied when assessing whether a licence should be revoked in the public interest. This included a reference to the well-known decision in Ward v Commissioner of Police, NSW Police Force [2000] NSWADT 26 where Hennessey DP explained, in terms of public safety, that, "the Tribunal must be satisfied that there is virtually no risk." The question of risk is not to be viewed as requiring an applicant to discharge the almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, but with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] - [66].
2. The Tribunal then, at par [69], concluded: 69 In relation to the public interest ground, I observe that the Applicant now enjoys stable domestic circumstances and her mental state is presently well-managed, including with medication. I consider though, notwithstanding the relative confidence of her treating psychiatrist, that insufficient time has elapsed to enable me to be confident that there is no risk of a relapse into behaviour that might jeopardize public safety, given her long history of mental health issues. In coming to this view, I note that her behaviour culminating in the events of 4 August 2019 was so bizarre that more time without reports of further instances of irrational behaviour, and without symptoms of anxiety, would be needed, in my view, before a decision favourable to her would be warranted. [Our emphasis.]
3. The appellant submitted that by requiring that she present "no risk" to the public, the Tribunal applied the wrong test. The Tribunal should have asked itself whether there was "virtually no risk." In response, the respondent argued that the Tribunal had correctly summarised the law at pars [60] to [67] of its decision, and that the infelicitous use of the words "no risk" should be read in the light of that understanding.
4. In our opinion the appellant's submissions in this regard raises a fairly arguable case on appeal.
5. The difficulty which confronts the appellant, however, is that because her firearms licence is now expired, any order which we might make on appeal (or which the Tribunal might make on a remittal) would be of no utility whatsoever. This is so because there is no power in the Tribunal to revive an expired licence, or to extend licence periods. There is a lengthy chain of decided cases to this effect: Sawires v Commissioner of Police [2010] NSWADTAP 68 at [12]; Zahab v Commissioner of Police [2021] NSWCATAD 97 at [23]; Tucker v Commissioner of Police [2021] NSWCATAD 214 at [6]; Hariri v Commissioner of Police [2022] NSWCATAD 5 at [62] (Hariri); Bailey v Commissioner of Police, NSW Police Force [2022] NSWCATAD 214 at [58] (Bailey); Fitzgerald v Commissioner of Police [2022] NSWCATAD 315 at [57]; Beleski v Commissioner of Police, NSW Police Force [2022] NSWCATAD 39 at [59]; McAdam v Commissioner of Police, New South Wales Police Force (No 2) [2022] NSWCATAD 368 at [84] - [85; Zulumovski v Commissioner of Police, NSW Police Force [2023] NSWCATAD 2 at [5]; and Jardine v Commissioner of Police, NSW Police Force [2023] NSWCATAD 175.
6. In Bailey and Hariri, the Tribunal acknowledged a point made by the appellant in this appeal, namely that the record of a revocation would remain with applicants and would have to be declared in future applications. In Hariiri the Tribunal commented, at [62] that: In any future application by the Applicant for a firearms licence it would be appropriate that the Respondent take this decision into account.
7. It is reasonable to expect that the fact that an administrative review (or indeed an appeal) is dismissed because it is of no utility, rather than on the merits, will be a factor to be considered when making any further decisions to which that dismissal is relevant.
8. As submitted by the respondent, we accept that the principle underlying the decisions outlined above is correct. If the Appeal Panel were to hear and determine the appellant's appeal in this case, there is no order we could make that would have of any practical affect on her firearms licence. Setting aside the decision made by the Tribunal would have no practical utility.
9. In her submissions the appellant argued that by proceeding to determine the appeal, the Appeal Panel would be providing a means whereby she could defend her reputation and that any decision we made would have a declaratory effect. Two points need to be made about this. First, the Tribunal (and the Appeal Panel) does not have jurisdiction to make declarations. The Tribunal is a creature of statute and the Acts conferring administrative review and internal appeal jurisdiction on it do not include a declaratory power. Secondly, as was argued by the respondent, the Appeal Panel should not give advisory opinions, particularly to public authorities such as the respondent: Re Judiciary and Navigation Acts [19211 HCA 20; 29 CLR 257.
10. In People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253 (PWD) Beazley JA, with whom Allsop P and Handley AJA agreed said, at [11] to [14]: When questioned as to why the appeal should not be dismissed, the appellant contended that there was utility in the appeal because there were other proceedings on foot in the Tribunal which raised the same question, which it contended was in issue on this appeal, namely, whether ongoing conduct constituted a reviewable decision for the purposes of the Administrative Decisions Tribunal Act 1997. The appellant submitted that that issue had been wrongly decided by the Appeal Panel and unless corrected the Tribunal, would effectively determine the result, at least at Tribunal level, of the other proceedings. The Court does not have an advisory jurisdiction. At the time this appeal was filed, there was a real dispute between the parties, namely, whether the Appeal Panel had erred in holding that there was no reviewable decision of the Minister in respect of the two centres subject of the application. As the centres have been closed, there is now no relevant controversy between the parties in respect of which a decision of this Court would have any effect. In short, in respect of these two centres, the appeal is moot and of no utility. As a general rule, the Court, in such circumstances, would not entertain the appeal. However, the rule is a general one only and the Court retains a discretion to hear and determine an appeal which has been regularly commenced but where a change of circumstances means that any decision will be moot so far as the particular controversy between the parties is concerned. One of the factors which would cause the Court to exercise its discretion and determine the matter is where the decision subject of the appeal is likely to affect other cases: see Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334; Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438; Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; Hope Downs Management Services v Hamersley Iron Pty Ltd [1999] FCA 1652; Bonan v Hadgkiss [2007] FCAFC 113.
11. In the present appeal there is no controversy raised with respect to the relevant principles to be followed when assessing whether a firearms licence should be revoked in the public interest. The parties agree on the relevant principles but differ as to whether the Tribunal Member below actually followed them. The issues raised in the appeal relate to Tribunal's assessment of the whether the appellant's continued possession of a firearms licence is contrary to the public interest. But the effluxion of time means that, no matter what the outcome of the appeal, her firearms licence has expired. If she wants a new one, she must apply for it.
12. Consistently with PWD, generally an Appeal Panel should not entertain an appeal if it concerns questions which have no foreseeable consequences for the parties: New South Wales Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 and Secretary of Communities and Justice v Feaney [2021] NSWCATAP 139 at [26]. There it was said that an Appeal Panel should not entertain appeals on legal questions that have no practical consequences for the parties [26].
13. It follows that, if an extension of time is granted, the appeal will likely fail as it is moot and of no utility.

Prejudice to the respondent.

1. There is a possibility that an order granting the appellant an extension of time in which to appeal, might lead to the Appeal Panel setting aside the Tribunal decision. Such an order would have no practical consequence to either party and will not affect the applicant's firearms licence. It would deprive the respondent of a vested order, in circumstances where the revocation decision cannot be redetermined.

Should an extension of time be granted.

1. The appellant has an arguable case on appeal and has provided a reasonable explanation for her delay in appealing. The prejudice to the respondent by granting an extension of time is not large.
2. However, the realty is that the appeal is without any practical utility, in that it will not make any change to the fact that the appellant is now without a licence. The appeal is moot. Any order we make will have no effect practical effect. The appellant's case does not raise any novel issues or issues of principle that suggest we should exercise our discretion to hear it because it may affect other cases.
3. In those circumstances an extension of time should be refused.

Orders.

1. We make the following orders: 1. Extension of time refused. 2. Appeal 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

Amendments 07 September 2023 - Firm's name spelt with an "r". This r has been removed. 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: 07 September 2023