Larsson v Commissioner of Police, NSW Police Force

Interlocutory Application

1. It is against that background the respondent brings its present application in relation to a summons served on it issued at the request of the applicant. The respondent seeks orders that are paragraphs [2], [3] and [5] of the Schedule to the summons dated 15 February 2018 be set aside. Those paragraphs seek production of the following: 2. ALL internal resources utilised or referred to by NS W Firearms Registry when assessing and adjudicating on firearm silencer Applications. (See answer supplied in reply to question on notice (number 16) put to Commissioner Fuller on 9 November 2017 during the 2017-18 Budget Estimates). 3. Any advice, direction, legal opinion, guidance from the NSW Police Force Ministry, Office of General Counsel or other operation units of the NSW Police Force, regarding firearm silencers. 5. Minutes or other records of the consideration by the NSW Firearms Registry Senior Management Team of the 'Draft Firearms Suppressor Guidelines - Genuine Reasons' document referred to question 76 put to the Minister for Po/ice and Emergency Services on 31 August 2017 during the 2017-18 Budge Estimate Inquiry.
2. In the application to issue the summons, the applicant is asked to identify the issue in dispute that the evidence or documents is relevant to and to explain how the evidence or documents relate to that issue. The applicant stated: The issue in dispute is whether the Applicant fulfils the requirements for issue of a Prohibited Weapon (silencer) permit. The documents requested relate to: (a) advice the NSW Firearms Registry may have received on firearm silencers from the Ministry or other operational units of the NSW Police Force, and (b) Information on the Applicant held by the NSW Firearms Registry.

Relevant principles

1. The principles to be applied in considering summonses were recently stated by the Deputy President in CPJ v The University of Newcastle [2017] NSWCATAD 350 at [9] to [12]. The principles include the following: 1. First, the Tribunal may draw on common law principles when determining whether to set aside a summons. At common law, a summons must only be issued for a legitimate forensic purpose. The onus is on the party attempting to procure the material to demonstrate a legitimate forensic purpose by reference to the issues as disclosed in the pleadings: Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 at [27]; 2. Secondly, it is an abuse of process to issue a summons in relation to documents which have no "apparent relevance" to the issues in dispute: Portal Software v Bodsworth [2005] NSWSC 1115 Brereton J at [22] and [23]; Becwell at [26]; 3. Thirdly, it is also impermissible for a party to use a summons for "fishing". "Fishing" is "where a party attempts by way of a subpoena to find out facts, matters and circumstances which might enable the party to advance a case of which there is no present knowledge".
2. The applicant, who was not legally represented, did not dispute that those principles, which were also referred to by the respondent in its written submissions, were the correct principles to be applied.

Consideration

1. I have set out the history of the matter at some length because, as the respondent correctly submits, I need to be satisfied that there is a legitimate forensic purpose for which the documents referred to in pars [2], [3] and [5] of the Schedule are sought, and that are those documents have an apparent relevance to the issues in the applicant's application for review of the respondent's decision. Accordingly, in order to make any ruling on application to set aside a summons, or part thereof, I must identify the issues in dispute.
2. Here the issue is straight-forward: is the correct and preferable decision that this applicant be granted a Prohibited Weapons Permit, or is it not? Evidence relevant to this issue may be sought by way of summons. However, in general terms, the applicant is seeking information from the respondent which is not relevant to his application, but potentially to a much wider group of applicants.
3. For instance, par [2] of the summons seeks "all internal resources" utilised or referred to by then Firearms Registry when assessing and adjudicating "on firearms silencer applications". Apart from understanding what is meant by "all internal resources" (as that expression is not defined in any way), taken literally, this paragraph seeks the production of information in relation to all or any firearms application.
4. Applying the principles set out above, par [2] of the Schedule to the summons should be set aside because:

• internal resources utilised or referred to by the respondent in other firearm silencer applications are clearly irrelevant to his own application;
• the information sought is "fishing" and has no apparent relevance to the proceedings;
• the documentation sought is not for a legitimate forensic purpose.
• in addition, the expression "all internal resources" not defined and is too wide in its terms.

1. Paragraph [3] of the Schedule suffers from the same defects. The classes of information sought are impermissibly wide, irrelevant to the applicant's own application, and "fishing" with no apparent relevance to the proceedings. In addition, I note that legal advice is protected by legal professional privilege and, even if produced, no order for access would be made.
2. Paragraph [4] of the Schedule should also be set aside. The documents sought (which do have a specificity which the documents sought in pars [2] and [3] lack) relate to the applicant's own submission to a Parliamentary inquiry. That submission is titled "Firearm Suppressor Guidelines - Genuine Reasons - to assist Interpretation and Application of Section 10 and 11 of the Weapons Prohibition Act 1998". It is difficult to see what relevance consideration by the NSW Firearms Registry Senior Management Team of the applicant's submission would have to this application for review.
3. The respondent asked me to consider making a finding that, in relation to par [5] of the Schedule, the applicant had sought to utilise the compulsory processes of the Tribunal for a collateral and unrelated purpose, amounting to an abuse of process, given the applicant's active history in lobbying for legislative change in relation to suppressors (silencers).
4. I decline to make that finding. The applicant should have the benefit of the doubt given he is not legally represented. It is sufficient for me to state that the applicant has failed to persuade me that the documentation sought is for a legitimate forensic purpose.
5. However, the applicant should appreciate that the role of the Tribunal is to hear and determine matters according to law, and (in the context of this review application) to make the correct and preferable decision. The Tribunal is not concerned with allegations, to recite the applicant's written submission, that "NSW Firearms Registry has a history of obfuscation, withholding information, obfuscation and obstructing intending silencer applicants". The applicant's right to bring proceedings in the Tribunal brings with it an obligation to engage the resources and processes of the Tribunal responsibly.

Orders

1. For the above reasons, the Tribunal orders: 1. Paragraphs 2, 3 and 5 of the summons dated 15 February 2018 issued to the respondent are set aside.

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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: 22 March 2018