Libdy v Commissioner of Police

Evidence

1. The Applicant provided a statement by dated 28 September 2020 and a statement by his solicitor, Adam Houda dated 29 September 2020. Neither was required for cross-examination. The Respondent filed an affidavit of Kyle Hudson, a solicitor with the Respondent.

The internal review

1. The Applicant was entitled to seek an internal review of the Respondent's decision under s 53(1) of the ADR Act. The internal review was required to be made within 28 days after being notified of the making of the decision: s 53(2)(d). The Respondent's decision to impose a FPO was notified to the Applicant by letter dated 25 February 2019, although he was not served with it until 7 March 2019. Therefore the Applicant was entitled to apply for internal review for 28 days after that notification pursuant to s 53(2)(d)) of the ADR Act, that is, until about 7 April 2019.
2. In his statement the Applicant said that on 8 March 2019, the day after he was served with the FPO he contacted Mr Houda, provided him with a copy of the FPO, and had a conversation with him about challenging it. The Applicant wrote that he considered that, by that conversation, he had instructed Mr Houda to challenge the FPO.
3. On 26 May 2020, during the course of a conference with Mr Houda concerning the criminal charges, the Applicant asked Mr Houda about the status of the FPO challenge. Mr Houda subsequently investigated and discovered that no steps had been taken to seek internal review. Mr Houda wrote that he takes full responsibility for this error. On 10 June 2020, some 14 months late, the Applicant, through his solicitor, made an application for internal review.
4. On 24 July 2020, the Respondent informed the Applicant's solicitor that the statutory period for lodgment of an application for internal review had expired. The letter acknowledged that while the firearms registry may refuse to conduct an internal review, "after careful consideration" it denied the request for internal review.
5. On 3 August 2020, the Applicant commenced this application for review, relying on s 55(4) of the ADR Act.
6. The general rule is that the Tribunal may only deal with an application for review if an applicant "has duly applied for such an internal review and the review is taken to have been finalised": s 55(3) of the ADR Act.
7. Under s 53(9) of the ADR Act 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).
8. The Applicant's primary position was that the Respondent's failure to respond to his request for an internal review within 21 days meant that the internal review was taken to be finalised and therefore the Tribunal has jurisdiction to undertake a merits review. The request for an internal review was made on 10 June 2020 but the response was not provided until 24 July 2020, that is 44 days after the application for an internal review had been made. Accordingly, it was submitted, by operation of s 53(9)(b), the internal review was taken to be finalised.
9. In my view the Applicant, in focusing on whether the internal review had been finalised, had overlooked the other requirement in s 55(3), namely whether the Applicant had "duly applied" for an internal review. I do not consider that the Applicant, in failing to make the application for internal review until some months after the statutory time frame set out in s 53(2)(d), had "duly applied" for an internal review. While s 53(2)(d) also foreshadows that the Respondent may extend the time for lodgment of an application for internal review, there is no obligation to do so.
10. Having come to this view, there is no need to consider the issue of whether the internal review had been "finalised".
11. I agree with the Respondent's submission that in circumstances where an applicant's application for internal review has not been duly made under s 53, and the administrator has not agreed to conduct an internal review, the ADR Act provides s 55(4) as the proper avenue for an applicant to seek administrative review by the Tribunal.
12. Subsection 55(4) sets out the following exceptions to the general rule set out in s 55(3): (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
13. Section 55(5) provides guidance on the matters to be taken into account by the Tribunal in considering an application under s 55(4): (5) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (4)(a) applies - the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant.

Was the application to the Tribunal made within a reasonable time?

1. A factor common to both s 55(4)(a) and (b) is whether the application to the Tribunal was made within a reasonable time following the administratively reviewable decision: 55(5)(b). The Applicant became aware of the imposition of the FPO on 7 March 2019, when he was personally served with a copy of the FPO. The internal review application was not made until 10 June 2020, some 14 months after the 28 day time period prescribed in s 53(2) of the ADR Act.
2. On the unchallenged evidence before me, on 8 March 2019, the day after he was served with the FPO, the Applicant discussed the imposition of the FPO with Mr Houda, and understood, that in doing so, he was instructing his solicitor to challenge the FPO. Then, within days of discovering there the application had not been lodged, an out of time application for internal review was made. When the Applicant's solicitor was informed that the Respondent would not conduct an internal review, the Applicant filed an application for review to the Tribunal on 3 August 2020, some 10 days later. I observe that the refusal letter did not inform the Applicant of any review mechanism.
3. The Respondent was critical of the Applicant and his solicitor for failing to address what communications they may have had in the months between the discussion about challenging the imposition of the FPO and the discovery it had not been made. The Respondent submitted that it was insufficient to rely on the solicitor's error and that there are likely to have been many occasions over the intervening months when the Applicant had the opportunity to engage with his solicitor about the progress of the internal review application. Again, neither the Applicant nor his solicitor were required for cross examination and I accept his understanding that his solicitor had the matter in hand. As SM Leal discussed in Addison v Commissioner of Police, NSW Police Force [2019] NSWCATAD 99 at [46], referring to Bassal v Commissioner of Police [2017] NSWCATAD 276 that the Tribunal in that case had noted at [69] that while Jones v Dunkel (1959) 101 CLR 98 does not apply in NCAT proceedings, a failure to lead evidence does impact on the case that is presented to the Tribunal. I consider it likely that some of the delay may be explained by the probable distraction of the Applicant's multiple serious criminal charges.
4. Having regard to all the circumstances, and particularly the solicitor's admitted error with respect to the internal review application, I am satisfied that the application to the Tribunal was made within a reasonable time.

Was there an unreasonable refusal of the request for internal review: s 55(4)(a)

1. The Applicant was informed of his review rights in the FPO, which the Respondent submitted was a positive factor that it did not unreasonably refuse to consider the application: see ECX v Secretary, Department of Communities and Justice [2019] NSWCATAD 252 at [53]. There can be no dispute that the Applicant was so informed, but, as discussed above, he had promptly instructed his solicitor to seek the review.
2. Although the letter notifying the Applicant of the refusal to carry out an internal refusal states that "careful consideration" was given to the request for internal review, it is unclear what, if any, other matters were taken into account other than that the request was out of time. The Applicant submitted that there is no suggestion that other matters were in fact taken into account and the failure to take into account and adequately give weight to a number of other (unspecified) considerations rendered the refusal of the request unreasonable.
3. By June 2020 the charges which had been laid against the Applicant which were the basis for the imposition of the FPO - namely, deal with property proceeds of crime =>$100,000, possess shortened firearm without authority, possess unregistered firearm - prohibited firearm, and not keep firearm safely - prohibited firearm - had been, according to Mr Hudson's affidavit, "transferred to the District Court".
4. The Applicant submitted, that by the time that the request for an internal review was made, four out of the five charges had been withdrawn and it would have been apparent to the Police that the basis of the decision to impose the FPO had shifted substantially. However, on Mr Hudson's evidence, it was not until in August 2020, that is, well after the request for internal review was considered, that the Applicant was charged on indictment with only one of the offences: "possessing a shortened firearm, that was not a pistol, without being authorised to do so by a permit, contrary to s 62(1)(b) of the Firearms Act"; all other charges were withdrawn or discontinued, presumably at that time. There was no evidence as to why Police or the prosecution had so significantly changed its position vis-à-vis the Applicant's criminal proceedings in August 2020, but, as I have said, on the evidence this was after the refusal to conduct the internal review.
5. It should be noted that the Applicant's request was in the barest turns, and there was no acknowledgment that it was out of time nor any explanation as to why it was only then being made. The statements of the Applicant and of Mr Houda had not yet been formulated. Perhaps it is unsurprising that the Respondent was disinclined to consider an application that was made so late when there was no explanation at that time for the delay. The Applicant submits that he was under no obligation to supply more information other than just request the internal review. I think such a course to have been naïve.
6. In all the circumstances I do not consider the Respondent's refusal to undertake an internal review to be unreasonable.

Is it necessary for the Tribunal to deal with the application to protect the Applicant's interests?: s 55(4)(b)

1. The parties agreed that an application under s 54 is similar to an extension of time application. In CFA v Department of Family and Community Services [2016] NSWCATAD 32 SM Lucy, conveniently summarised the authorities relating to extension of time and concluded, at [29]: 29 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.
2. I have already discussed the length of the delay and the reason for it, and the timeliness or delay in antecedent administrative processes.
3. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] the Appeal Panel considered, in relation to the "prospects of success", that this entailed whether the applicant has an "arguable case". The Applicant submitted, to the effect, that because a FPO is a "draconian measure", that fact should weigh heavily in favour of permitting the Applicant to bring the application for review. In Hamid v Commissioner of Police, New South Wales Police Force [2018] NSWCATAD 43 SM Professor Walker helpfully discussed at [43]-[45] the Ombudsman's assessment of the powers conferred on Police by s 74A: 43. It was pointed out that in the New South Wales Ombudsman Review of Police Use of the Firearms Prohibition Order Search Powers (August 2016), it was found that of over 2500 separate searches conducted under the powers in s 74A, police found firearms, ammunition or firearm part in 2 per cent of searches. That suggested the power was being used more as a roving search power used randomly on FPO subjects, rather than "as is reasonably required". Given those statistics, the applicant had grounds to be concerned that she would be subject to unnecessary searches, which might continue indefinitely due to the inability to review the FPO at a later date. The Ombudsman had recommended that FPOs should expire after five years, as in Victoria, but the legislation had not been changed to reflect that recommendation. 44. The Ombudsman had said that police had informed him that an FPO would generally be made where the authorizing officer formed the view that a person's possession of a firearm or ammunition would compromise public safety, and set out a number of examples of the types of situations that might give rise to the issuing of an FPO. They included outlaw motorcycle gang (OMCG) membership, persons convicted of armed robbery, murder, conspiracy to murder, serious assault and other serious violence-related matters and persons involved in firearms trafficking. None of the listed circumstances applied to the applicant. 45. Further, the New South Wales Legislature had indicated that the classes of people to whom they expected the powers to apply included persons engaged in gun crime, persons who should not have access to guns because of their criminal record, persons involved in drug use or supply, and persons who police had good reason to believe were members of organized criminal groups. ...
4. The imposition of a FPO is discretionary, and there do not appear to be any administrative guidelines as to how that discretion is to be exercised. Consequently, the Applicant, appropriately in my view, is entitled to seek to test the basis on which the FPO was imposed and remains in place.
5. I do not consider that there is any real prejudice suffered by the Respondent, other than the standard, and fairly weak contention, that a decision-maker having made a decision, is entitled to an expectation that the matter is concluded: see Chiswell v Commissioner for Fair Trading, Department of Finance, Services & Innovation [2016] NSWCATOD 154 at [11].
6. The concept of "public interest" is necessarily broad. The substantive question in reviewing a decision about the imposition of a FPO is whether the person is not fit, in the public interest, to have possession of a firearm. It is not appropriate to discuss the merits of the case in detail at this time, but these public interest considerations, as well as the "fitness" test necessarily are to be evaluated in the context of the principles and objectives of the Firearms Act as set out in s 3, including that firearms possession a privilege not a right.
7. As already discussed above, the imposition of a FPO has a serious and substantial effect on the Applicant's personal freedoms and the Respondent accepted that the imposition of a FPO affects the Applicant's rights. I consider, having regard to the possible harsh effects of the imposition of a FPO, it is in the public interest that a person, upon whom such an order is imposed, is entitled to test the basis for the imposition. Since the imposition of the FPO there has been a significant shift in the Respondent's position vis-à-vis the criminal charges. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31.
8. As to whether strict compliance with the rules will work an injustice upon the Applicant, I observe that the Applicant is 54 year old man with no criminal record. He has pleaded not guilty to the sole remaining offence and a no bill application is presently under consideration by the Director of Public Prosecutions.
9. Further, while the Commissioner may revoke a FPO pursuant to s73(3) of the Firearms Act, there is no obligation to do so. In Taylor v Commissioner of Police, New South Wales Police [2006] NSWADT 48 DCJ O'Connor discussed the provisions of s 75(1) of the ADR Act that create a right of review by the Tribunal. He concluded at [7]: 7. My conclusion is that the applicant is not entitled to seek review in the terms in which the application for review has been presented, which is to have us review the Commissioner's refusal to revoke a firearms prohibition order.
10. This contrasts with s 24(l) of the now repealed Firearms and Dangerous Weapons Act 1973 which specifically provided an appeal mechanism from a decision refuse to revoke a FPO: see discussion in Holdsworth v Commissioner of Police, NSW Police Force [2019] NSWCATAD 42. The result is, that while it is open to the Applicant to seek revocation of the FPO, if that request is refused, the Applicant is unable to seek review of that decision by the Tribunal. To find against the Applicant at the present stage, deprives him of the opportunity of having the ongoing imposition of the FPO tested by the Tribunal.
11. It should be noted that, even if the Applicant is acquitted of the remaining criminal charge, the Respondent (and the Tribunal on review) may still have regard to the record of the criminal proceedings, and the evidence relied upon by the prosecutor. It is clear from Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCAT 31 at [62]-[64] that, irrespective of whether charges are proved beyond reasonable doubt, the Tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proven or have been dismissed. It is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 at [30]. Having said that, though, the ventilation of the evidence against the Applicant may assist the Tribunal in coming to its view.

CONCLUSION

1. For the foregoing reasons, I am satisfied that, even though the Applicant did not duly apply for an internal review of the decision to impose a Firearms Prohibition Order, it is necessary for the Tribunal to deal with the application in order to protect the Applicant's interests and the application to the Tribunal was made, in the circumstances, within a reasonable time following the administratively reviewable decision under ADR Act s 55(4)(b).

Orders 1. The Tribunal decides to deal with the Applicant's application to the Tribunal for review of the Respondent's decision to impose a FPO, even though the applicant has not duly applied for internal review of the decision. 2. The parties are to file Short Minutes of Order setting out a timetable for the filing of evidence and submissions with a view to a hearing date after the conclusion of the Applicant's criminal trial currently scheduled to commence on 1 March 2021, or such earlier date as the parties may agree.

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 24 December 2020 - Typographical error corrected. Applicant's name corrected from "Lidby" to "Libdy" 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: 24 December 2020