Kee v Commissioner of NSW Police Force

Material considered by the Tribunal

1. In considering the extension of time issue I have had regard to the following material:

• Mr Ping Kee's application for administrative review, with attachments.
• Statement of Mr Ping Kee dated 12 February 2016.
• Statement of Thomas Idris Morgan dated 15 February 2016.
• Statement of Sylvester Joseph dated 12 February 2016.
• Written submissions in support of Mr Ping Kee's application for an extension of time.
• Section 58 documents filed by the Commissioner of Police.
• The Commissioner of Police's written submissions

Principles applicable to a request for an extension of time

1. Section 40 of the CAT Act provides: "An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules."
2. Section 55(2) of the ADR Act provides: "(2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules."
3. The enabling legislation, that is the Firearms Act 1997, does not provide a time limit for the making of an application to the Tribunal.
4. The Civil and Administrative Tribunal Rules 2014, which are "procedural rules" (see the ADR Act, s 4(1) and the CAT Act, s 4(1)), provide, relevantly, in r 24(3) and (4): "(3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made: (a) in the case where enabling legislation specifies the period within which the application is to be made - within the period specified, or(b) in any other case - by the end of the default application period. (4) (a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997 - the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act:..."
5. Section 41 of the CAT Act provides: "(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."
6. In CFZ v Department of Education [2015] NSWCATAD 231 I had occasion to consider the principles applicable to granting an extension of time in an administrative review context. I concluded that the principles applicable to granting an extension of time in which to appeal, as discussed in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, were equally applicable to an administrative review application, with appropriate adaptation. In that case the Appeal Panel referred to the following considerations (at [22]) - "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]."
7. In CFZ I wrote (at [9].) - "In administrative review applications, there is a public interest component to the evaluation, in that the public interest in accepting a late application is a matter to be considered in the exercise of the discretion: see ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271 and Edwards v Department of Family and Community Services [2012] NSWADT 60. So too is timeliness or delay in the antecedent administrative processes: see Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212. Those matters are necessary adaptions to the consideration of an extension of time in the context of an administrative review."
8. In CFA v Department of Family and Community Services [2016] NSWCATAD 32 Senior Member Lucy, having referred to the above decisions, conveniently summarised their effect, thus - "Whilst it is important to remember that the Tribunal has a broad discretion concerning the grant of an extension of time, the cases referred to above establish that the following factors are relevant: (1) The length of the delay; (2) The reason for the delay; (3) The applicant's prospects of success; (4) Any prejudice suffered by the respondent; (5) Public interest considerations; (6) Timeliness or delay in antecedent administrative processes; (7) Whether strict compliance with the rules will work an injustice upon the applicant."

The length of the delay

1. In submissions both parties take the approach that time for the making of an application to review the decision of the Commissioner of Police started to run from the date of the internal review. They calculate differing dates by which the application for administrative review should have been made to the Tribunal: 10 September 2015 (Mr Ping Kee) and 16 September 2015 (Commissioner of Police).
2. Both are incorrect. Rule 24(4)(a) of the Civil and Administrative Tribunal Rules 2014 provides that time runs for a "period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act." Section 53(9) provides - "An internal review is taken to be finalised if: (a) the applicant is notified of the outcome of the review under subsection (6), or (b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on)." Note. Section 55 provides that an interested person may apply for an administrative review under this Act of an administratively reviewable decision once an internal review of the decision is taken to be finalised under this subsection.
3. The scheme of the ADR Act requires that internal review be completed within 21 days, and if not, s 53(9) provides that the review "is taken to be finalised." Section 55 (2) then gives a person who has applied for internal review, which internal review is taken to be finalised, a right to seek administrative review. Mr Ping Kee is such a person. In Mr Ping Kee's case the internal review request was communicated to Commissioner of Police by fax on 19 May 2015, with the result that the Commissioner had 21 days, until 9 June, to complete the internal review. Section 53(9) t provided that the internal review was taken to be finalised hereafter, with the result that Mr Ping Kee had until 28 days after 10 June 2015 (by 9 July 2015) in which to seek administrative review.
4. Thus the time for Mr Ping Kee to seek administrative review expired more than a month before the Commissioner of Police actually provided Mr Ping Kee with the internal review decision dated 13 August 2015.
5. Because the view I have taken of the length of the delay differs significantly from that taken by the parties, the Registrar, at my request, wrote to them in the following terms: This matter has been allocated to Senior Member Molony for a decision on the papers. He notes that the original request for internal review was sent to the Commissioner of Police by facsimile and received on 19 May 2015. Mr Molony has asked that I write to you seeking your views as to the correctness or otherwise of the proposition that the time for filing an application for administrative review in this case commenced to run on 10 June 2015 (the day after the day on which the internal review is taken to have been finalised under section 53(9) of the Administrative Decision Review Act 1997 - see rule 24(4)(a) of the Civil and Administrative Tribunal Rules 2014). Please provide your written responses to the above by 21 March 2016. Mr Molony will publish his decision soon after.
6. Both parties filed submission in reply in which they submitted that there was an agreement between that the Commissioner could provide the outcome of the internal review at a later, unspecified, time. They pointed to correspondence between them including a letter of 24 June 2015 from Mr Ping Kee's solicitors enclosing references and a letter dated 22 July 2015 from the Commissioner advising that the internal review "had commenced on 20 July 2015" and was "suspended pending responses" from Police.
7. I do not accept the submissions that there was an agreement between the parties for the outcome of the internal review to be produced at a later, unspecified, time. I reject those submissions for a number of reasons, namely: 1. Section 59(3)(b) requires that the parties to an internal review agree of a period of time in which the internal review is to be completed. In my view, read in the context of the section as a whole, this requires that a specified time be agreed. This is not the case here. Given the nature of time limit specified in s 59 an agreed period (with a closing date) is required. 2. The majority of the correspondence upon which the parties rely to evidence an agreement to extend time, occurred after the date on which the outcome of the internal review was due, namely 10 June 2015. 3. Finally, while not strictly relevant, an agency, such as the Commissioner of Police, does not have power to suspend the consideration of an internal review. Section 59 provides that an internal review shall be completed within 21 days unless another period is agreed on. This does not authorise unilateral changes by the Commissioner.
8. The true length of delay in making Mr Ping Kee's application for administrative review is 5 months and two days. While the application was made within approximately two months of receipt of the internal review by Mr Ping Kee, time does not run from then.

The reasons for the delay

1. It is apparent that rather than exercising his right to seek administrative review when not notified of the outcome of the internal review within 21 days, that Mr Ping Kee waited for the internal review to be completed. Despite the Commissioner of Police's obligation to complete the internal review within 21 days, there was a substantial delay in producing the internal review, resulting in it being just over two months late, when it was ultimately produced on 13 August 2015. It was sent by registered mail and received on 18 August 2015.
2. Mr Ping Kee's application for administrative review was lodged with the Tribunal on 19 November 2015, nearly three months after receipt of the internal review decision, and approximately five months late. In the statements made by Mr Ping Kee and his solicitors an explanation is given for the delay between receipt of the internal review decision and making the application for administrative review.
3. In short Mr Ping Kee's original solicitor Mr Morgan was retiring, and recommended that Mr Ping Kee engage Mr Joseph to represent him in the administrative review proceedings. Mr Ping Kee accepted this advice and left it to Mr Morgan to arrange what was necessary. Mr Morgan wrote to Mr Joseph on 2 September about the matter. Mr Joseph received that correspondence on 7 September 2015. He wrote to Mr Ping Kee asking him to attend his office to discuss the matter. Mr Joseph said that at the time he had so much work that he was unable to get to grips with and properly investigate, consider and prepare the administrative review application so that it was filed in time. This resulted in the administrative review application being filed late on 19 November 2015.
4. The Commissioner of Police in submission argued that the explanation of the delay advanced by Mr Ping Kee was not a reasonable one.

Mr Ping Kee's prospect of success

1. The decision to revoke Mr Ping Kee's licences followed his pleading guilty to a number of charges under the Firearm Act for which he was placed on a s 10 bond for 6 months. The decision to revoke his licences was made on public safety grounds.
2. It is apparent form reading the materials that Mr Ping Kee has explanations for a number of those charge which were rejected on internal review, but, which if accepted, may result in a different outcome on administrative review. There is also a factual contest as to the adequacy and sufficiency of the business' safekeeping provisions.
3. The Commissioner of Police correctly points to the convictions as providing a significant obstacle to Mr Ping Kee's prospects of success. The Commissioner's submissions then go on to take issue with many of the assertions that Mr Ping Kee makes in his favour, and to dismiss them summarily.
4. If on administrative review the assertions of fact made by Mr Ping Kee are found to be correct then he has an arguable case with respect to both licences. Despite the Commissioner's assertions to the contrary this is not an application for administrative review that is destined to fail. Much will depend on whether or not the Tribunal accepts Mr Ping Kee's assertions of fact. If accepted, they may well provide an arguable case.

Any prejudice suffered by the respondent

1. The Commissioner of Police agreed that, apart from having to expend resources on the administrative review, if an extension of time is granted, no prejudice would follow.

Public interest considerations

1. The business is the only licenced firearms dealer in Moree. According to Mr Ping Kee's submissions it is the only licenced firearms dealer within an hour of Moree and provides firearms and associated services to licence holders in the area. Because the business provided a service to the community of Moree and surrounds, there is a public interest in ensuring that the revocation of the licence (with the subsequent inability of the business to conduct business as a firearms dealer) is required to ensure the public safety.

Timeliness or delay in antecedent administrative processes

1. I have already spent some time discussing the causes for the delay in this matter. The reality is that both the Commissioner of Police and Mr Ping Kee, via his solicitors, have contributed to the delay in the matter reaching the Tribunal. The internal review request was made on 19 May 2015. It should have been completed within 21 days (by 9 June), but was delayed until 13 August 2013. This is roughly equal to Mr Ping Kee's delay in seeking administrative review once the internal review decision was to hand.

Whether strict compliance with the rules will work an injustice upon the applicant

1. It is clear that neither of Mr Ping Kee's solicitors were aware of the effect of s 53(9)(b). While they were aware that there was a time limit for the filing of an application for administrative review, they were ignorant of when time actually started to run. Additionally, I accept that there were delays in making the application which resulted from the decision to change solicitors, the time spent in communication between new and olds lawyers, and difficulties associated with Mr Joseph's limited availability.
2. I accept that once he gave instructions for an application for administrative review to be filed Mr Ping Kee left it to his solicitor to see that occurred, and did not concern himself with the details. I do not consider that an unreasonable course of action on his part.
3. In Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61 His Honour Judge O'Connor (sitting as the Appeal Panel of the ADT) considered an application to extend time for appeal, where the explanation for the delay was internal to the Appellant's solicitors, who was very experienced in the jurisdiction. Judge O'Connor said: 27 A more generous approach to the acceptance of an explanation for late filing may be appropriate in the case of 'one-time' participants in the processes of the Tribunal, especially if they are unrepresented or have special disabilities. Even in the case of a sophisticated litigant (such as a government department) it may be unduly harsh to visit upon it an omission on the part of its legal adviser.
4. In the present case Mr Ping Kee's solicitors are not frequent participants in the Administrative and Equal Opportunity Division. Mr Ping Kee has a great deal at stake in the proceedings, including the continuance of the business. In all the circumstances of the case I think it would be very unfair to insist on strict compliance with the rules.

Orders

1. I will therefore extend time to so that Mr Ping Kee's application for administrative review was made in time. The application is to be listed for directions as to the filing of further evidence and hearing on 10 May 2016 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: 21 April 2016