LICENSING - firearms - firearms prohibition order - weapons prohibition order - dismissal for lack of jurisdiction - nature of jurisdictional hearing - stay of proceedings.
Source
Original judgment source is linked above.
Catchwords
LICENSING - firearms - firearms prohibition order - weapons prohibition order - dismissal for lack of jurisdiction - nature of jurisdictional hearing - stay of proceedings.
Judgment (9 paragraphs)
[1]
Office of General Counsel, New South Wales Police Force (Respondent)
File Number(s): 2019/001225558
[2]
Reasons for decision
This is an application by the respondent for summary dismissal of tribunal review proceedings on the ground of want of jurisdiction.
The applicant Mr Samet Karmez had applied to this tribunal on 18 April 2019 for review of a decision by the Commissioner of Police imposing a firearms prohibition order (FPO) and a weapons prohibition order (WPO) upon him on 21 March 2019. He was not, and apparently had never been, the holder of any licence or permit under the Firearms Act 1996.
In his application he had stated that the powers conferred by the orders made him a target for police "harassment" and complained that he had been embarrassed in public by being searched in front of his family. The legal consequences of an FPO can indeed be far-reaching: Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43, [65] - [77].
The applicant had been informed by letter on 31 May 2019 by the respondent that the tribunal lacked jurisdiction to review the FPO and WPO and was invited to withdraw his application. At a directions hearing on 4 June 2019, the applicant sought a stay of the operation of the two orders and indicated that he did not intend to withdraw his application.
The proceedings were listed for further directions on 18 June 2019, on which occasion there was no appearance by or on behalf of the applicant. The tribunal then made further directions with a view to a determination of the jurisdiction point. The dismissal application came on for hearing on 26 July 2019, on which occasion there was no appearance by or on behalf of the applicant and the matter proceeded ex parte.
[3]
Applicable legislation
Section 75 of the Firearms Act 1996 is relevant to the tribunal's jurisdiction to review an FPO. It provides in pertinent part:
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:
(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,
(b) a condition imposed by the Commissioner on a licence or permit issued to the person,
(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),
(d) the refusal of or failure by the Commissioner to register a firearm,
(e) the cancellation of the registration of a firearm by the Commissioner,
(f) a firearms prohibition order made against the person,
(g) a decision made under the regulations concerning the person that belongs to a class of decisions prescribed by the regulations for the purposes of this paragraph.
(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.
(1B) However, the decision to make a firearms prohibition order against a disqualified person is taken to be an administratively reviewable decision for the purposes of section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 and that section applies, with such modifications as are necessary, in relation to the decision to make such an order.
Section 11(5) of the Firearms Act provides:
(5) A licence must not be issued to a person who:
(a) is under the age of 18, or
(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or
(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), or
(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or
(e) is subject to a firearms prohibition order, or
(f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000.
Clause 5 of the Firearms Regulation 2017 prescribes offences for the purposes of ss 11(5)(b) and 29(3)(b) of the Firearms Act. Clause 5(1)(a)(i) relevantly prescribes an offence consisting of possessing or using a firearm or any other weapon, or a firearm part or ammunition, committed under the law of any jurisdiction.
The WPO in this case was made pursuant to s 33(1) of the Weapons Prohibition Act 1998 (WP Act). In s 35 that Act relevantly provides as follows:
35 Administrative review 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 the following decisions:
(a) the refusal or failure by the Commissioner to issue a permit to the person,
(b) a condition imposed by the Commissioner on a permit issued to the person,
(c) the revocation or suspension of a permit issued to the person.
The tribunal's general power to dismiss proceedings is contained in s 55 of the Civil and Administrative Tribunal Act 2013 (CAT Act):
55 Dismissal of proceedings
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:
(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,
(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.
The issue in this application is whether this tribunal has jurisdiction to review the Commissioner's decision to issue the FPO or the WPO, or both, against the applicant.
At the hearing, no oral evidence was taken, but the respondent tendered some documentary material, including the s 58 documents (exhibit R1) and made written and oral submissions.
[4]
Nature of jurisdiction hearing
The respondent seeks the dismissal of Mr Karmez's review application on the ground of lack of jurisdiction. Section 55 of the CAT Act empowers the tribunal at any stage to dismiss any proceedings before it in any one of a number of circumstances. Lack of jurisdiction, however, is not listed as one of those circumstances.
It could be argued that such cases would be covered by the phrase "misconceived or lacking in substance" in s 55(1)(b), but that might be considered a somewhat strained interpretation. Thus it would appear that the CAT Act does not make specific provision for a "jurisdictional hearing": see American International Insurance Company (Australia) Ltd v Skewes [2010] VSC 307, [18].
Nevertheless, a tribunal has a duty to satisfy itself that it has the jurisdiction to hear and determine the proceeding: Moonee Valley CC v Top Cut Industries Pty Ltd [2010] VCAT 401, [23], and presumably that duty implies an independent power to order dismissal.
The fact that it appears to be an independent power that does not arise from s 55 could have consequences. There is a significant distinction between an order dismissing a proceeding and an order striking out a proceeding. An order dismissing a proceeding brings the proceedings to an end with no possibility of reinstatement and renders the tribunal functus officio. By contrast, an order striking out a proceeding brings the proceeding to an end, but with the possibility of reinstatement.
A matter dismissed for non-appearance under s 55(1)(c) may be reinstated pursuant to s 55(2), but matters dismissed on other s 55(1) grounds may not. Thus the dismissal power in s 55(1)(c) seems to be in substance a power to strike out, whereas dismissals on other s 55(1) grounds are genuine dismissals that bring the proceeding to an end. As the CAT Act confers only a limited and restricted power to reinstate, it would seem reasonable to conclude that dismissals under the separate implied power to dismiss for lack of jurisdiction are also final and cannot give rise to a power to reinstate. For present purposes, however, it is not necessary to decide that point.
[5]
Jurisdiction in relation to the WPO
The classes of decisions under the WP Act that can be the subject of a review application to this tribunal are listed in s 35(1) of that Act. They are the Commissioner's refusal to issue a permit, a condition imposed by the Commissioner on a permit and the revocation or suspension of a permit. A decision to make a WPO is not among the listed classes of decisions. It therefore follows that the tribunal has no jurisdiction to hear the application to review that decision, and I so find.
[6]
Jurisdiction in relation to the FPO
Under s 75(1)(f) of the Firearms Act, a person may apply to this tribunal for review of a firearms prohibition order made against that person. That right does not apply, however, if the person would be required under ss 11(5) or 29(3) to be refused a licence or permit had that person not been subject to an FPO. A person in that position becomes a "disqualified person": s 75(1A). There is a qualification on that restriction in s 75(1B), but it is not relevant for present purposes.
The extract from s 11(5) of the Firearms Act set out above shows that a licence must not be issued to a person who has, within the 10 years preceding the application, been convicted of an offence prescribed by the regulations: s 11(5)(b). In addition, a licence must not be issued to a person who is subject to an apprehended violence order or interim AVO or who has, within the preceding 10 years, been subject to an AVO (other than an order that has been revoked).
Clause 5 of the Firearms Regulation 2017 prescribes offences for the purposes of ss 11(5)(b) and 29(3)(b) of the Firearms Act. They include "An offence relating to the possession or use of a firearm or any other weapon, or a firearm part or ammunition, committed under: (i) the law of any Australian jurisdiction….": cl 5(1)(a).
On 20 December 2010 the applicant was convicted of carrying a firearm in a manner likely to injure or endanger the safety of any person or property, an offence under s 93G of the Crimes Act 1900, and was made subject to an 18-month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) and was required to continue treatment with a psychologist (part of charge H41506228). On 8 August 2012, pursuant to a "call-up" under s 99 of the CSP Act, he was sentenced to 9 months' imprisonment with a 6-month non-parole period (exhibit R1, p 9). The Crimes Act s 93G on its face clearly creates an offence relating to the possession or use of a firearm under the law of an Australian jurisdiction, New South Wales, within the meaning of cl 5(1)(a)(i) of the Firearms Regulation.
He appealed against the severity of his sentence to the District Court, which on 4 October 2012 confirmed his conviction and sentence.
Also on 20 December 2010, the applicant was convicted of possessing ammunition without holding a licence or other authority, an offence created by s 65(3) of the Firearms Act (also part of charge H41506228, exhibit R1, p 9). He was fined $400 and required to pay court costs. That provision also plainly creates an offence relating to the possession of ammunition under the law of an Australian jurisdiction, New South Wales, within the meaning of cl 5(1)(a)(i) of the Firearms Regulation.
In addition to the two firearms convictions, the applicant is disqualified from holding a firearms licence by reason of having been subject to an apprehended violence order. Section 11(5) of the Firearms Act provides that a licence must not be issued to a person who "is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked)". The applicant also has a number of other convictions, and also some pending charges, but they are not relevant to this application.
On 23 September 2015, the applicant was made subject to an apprehended violence order embodying conditions relating to assaulting, molesting, harassing, threatening or otherwise interfering with the protected person, R***, as well as stalking and approaching that person (exhibit R1, pp 21-22, exhibit R4). It was a final order under the Crimes (Domestic and Personal Violence) Act 2007 within the meaning of s 3 of the Firearms Act. It was expressed to remain in force until 22 September 2016 and has therefore expired, but it has never been revoked.
I therefore find that the tribunal has no jurisdiction to review the decision to impose the FPO.
[7]
Application for a stay
In addition to seeking review of the decision to impose the FPO and WPO, the applicant sought a stay of that decision. Section 60(2) of the Administrative Decisions Review Act 1997 provides as follows:
(2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.
It will be seen that the tribunal may make a stay order only in proceedings for review of "an administratively reviewable decision". In the present case, as I have concluded that there is no administratively reviewable decision currently before the tribunal, the tribunal lacks the power to issue a stay as sought by the applicant.
Either of the two firearms convictions, or the imposition of the final apprehended violence order on him, has the effect of depriving the tribunal of jurisdiction to review the FPO. I therefore dismiss the application for review of the FPO and the WPO under the implied power to dismiss for want of jurisdiction, or alternatively under s 55 of the CAT Act.
[8]
Order
Application dismissed for lack of jurisdiction.
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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: 31 July 2019
Parties
Applicant/Plaintiff:
Karmez
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force