B Mackay (Applicant in Person)
M Carlon, Office of the General Counsel, NSW Police Force (Respondent)
File Number(s): 1510435
[2]
Introduction
The applicant, Mr Brett Barry Mackay, has lodged an application for review against a decision by the NSW Police Force ('the respondent') to refuse to grant him a Category AB firearms licence. The original decision to refuse the licence was made on 10 February 2015. This decision was affirmed on internal review on 1 April 2015.
In affirming the decision, the internal reviewer found that in accordance with section 11(4)(c) of the Firearms Act 1996, Mr Mackay should not be issued with a firearms licence as there was cause to believe that he may not personally exercise continuous and responsible control over firearms because of his intemperate habits. The internal reviewer also found that it would not be in the public interest to issue Mr Mackay with a firearms licence as the internal reviewer could not be satisfied there would be 'virtually no risk' to the public safety if Mr Mackay were granted such a licence.
Mr Mackay was required to make his application to the Tribunal within 28 days from the finalisation of the internal review, namely by 13 May 2015. Mr Mackay did not lodge his application for review, however, until 24 July 2015.
On 21 September 2015, Mr Mackay wrote to the Tribunal in terms that are accepted to be an application to the Tribunal to accept his application for review despite its late lodgement.
At a directions hearing before this Tribunal on 29 September 2015, an order was made that Mr Mackay file and serve submissions and evidence as to why his application for review should be accepted even though it was filed out of time. A further direction was made that the out of time issue be determined by the Tribunal on the papers after the due date of the respondent's evidence and submissions. Due to Mr Mackay's late filing of material, the Tribunal has accepted the late receipt of the respondent's submissions, which were filed and served on 13 November 2015.
The respondent objects to the requested extension of time being granted to Mr Mackay.
The question before the Tribunal is whether Mr Mackay's application for an extension of time in which to lodge his application for review should be granted.
[3]
Evidence
The following material is contained on file:
Section 58 documents;
Evidence and submissions by the respondent in relation to Mr Mackay's application to extend time for filing his review application; and
Letter by Mr Mackay dated 21 September 2015 annexing a series of letters from Coffs Central Medical Centre, including a lengthy letter to Mr Mackay from Dr Gavin Nichols dated 10 September 2015.
The matter was listed for directions on 29 September 2015. Mr Mackay was to appear by telephone but was unable to be contacted by the Tribunal.
On 19 October 2015, Mr Mackay wrote to the Tribunal to apologise for being unavailable by telephone on 29 September 2015 'due to the fact that I was out of town, on this day, for a brief period.' In this letter, he also advises as follows:
Attached to my previous letter was a report from my doctor stating the reason as to why I was late in seeking assistance from NCAT in an attempt to solve this ongoing matter…In addition to this report, there is illness within the family and I am unable to leave the farm for this reason, for more than a few hours.
The doctor's report to which Mr Mackay refers would appear to be an undated report by Dr Mulvey which provides as follows:
Brett Mackay DOB: 12/1/1965
1. He had a very high serum ferritin found 14/7/2015 and a high trans ferritin saturation of 98%
Associated with this has been abnormal liver function tests.
He has not felt well since January 2015
His previous doctor has arranged for him to have 2 venesections in the past 2 weeks.
2. He suffers from emphysema as well.
In his application for review, Mr Mackay gives the following explanation for lodging his application for review outside the time allowed:
I have been unable to respond sooner as I have been unwell.
Attached to his application for review are a series of letters from Mr Mackay dated between November 2014 and May 2015. Further correspondence by Mr Mackay dated 24 August 2015, 21 September 2015, 19 October 2015 and 27 October 2015 has also been received by the Tribunal.
It is difficult to find within these documents a clear explanation by Mr Mackay for his delay in lodging his application for review. However, the following appear to constitute points in support of his application for an extension of time in which to lodge an application for review to the Tribunal:
He has emphysema from which he has suffered for over ten years;
He was dependent on alprozalam (to control panic attacks) for nine to ten years before he realised that it had undesirable side effects when combined with alcohol;
He denies ever having contemplated suicide or self-harm or violence towards others;
He is not aware that he suffers from a mental illness. He only ever experienced problems when he was prescribed unsuitable drugs and was consuming excess alcohol;
He wishes to be granted a firearms licence not for hunting or vermin control but simply for shooting targets at the local pistol club;
He suffers from Chronic Obstructive Pulmonary Disease and admits to having an alcohol problem; and
He obtained the SSAA safe shooting certificate as proof he is capable of handling firearms in an appropriate manner.
In a risk assessment report for Mr Mackay dated 8 January 2015, Dr Robin Bradley, psychiatrist, noted information provided by Mr Mackay's general practitioner that Mr Mackay has a long-term alcohol problem and has been reluctant to cease drinking alcohol or to take medication to assist him with his alcohol dependence.
According to Dr Bradley:
When intoxicated Brett appears to suffer from a complete loss of insight and awareness, he has no insight into his own behaviour and has no recollection at all of his aggression. These facts alone would mean he is totally unfit to possess or use a firearm…In view of Brett's lack of insight into the effect of alcohol on himself it is my opinion that his condition does have the potential to put public safety at risk if he was in possession of a firearm. Although he is not overtly an aggressive person, when intoxicated this does appear to become a major issue.
In a letter dated 27 October 2015, Mr Mackay makes the following submissions:
I would like to know why NCAT took my money and agreed to represent me in the court of law knowing that my request for assistance was 'too late' by fifty-six days.
Secondly, I feel it is my duty to correct the 'mental health report' conducted by Dr Bradley on the 07.01.15.
Mr Mackay has the following objections to the risk assessment report prepared by Dr Bradley:
His general practitioner, referred to in the report, was not competent;
Dr Bradley has never witnessed Mr Mackay in a state of intoxication;
He has never been 'addicted' to Xanax. He is reluctant to use medication of any kind due to side effects;
He is no longer dependent on alcohol;
Dr Bradley has made assumptions in the report that Mr Mackay does not accept;
Weapons of any kind will always be of concern when in the wrong hands;
He denies that he has ever been an aggressive person;
He asserts that 'it is wrong to defecate on people you do not know.' This submission appears to be a response to the opinion of Dr Bradley that there is a very high risk that Mr Mackay will relapse (into alcohol dependence) and that there is continuous alcohol use by Mr Mackay, possibility abuse, taking place at the present.
Part of the section 58 materials comprise a series of COPS reports for events alleged to have occurred in 2005, 2008, 2011, 2012, 2013 involving police contact with Mr Mackay who was said to be intoxicated on each occasion.
In the series of letters from Coffs Central Medical Centre to Mr Mackay, which were provided by Mr Mackay to the Tribunal, Mr Mackay is requested to attend the surgery to undertake a liver biopsy to confirm whether he is suffering from cirrhosis of the liver and/or haemochromatosis (elevated iron levels).
Contained in a letter dated 10 September 2015 from Dr Gavin Nichols of Coffs Harbour Medical Centre to Mr Mackay (as supplied to the Tribunal by Mr Mackay) is the following:
You asked me to provide a certificate to say you were too sick to attend the Firearms Licensing Appeal meeting in Sydney and you asked me to do that the day after you were due in Sydney. So I cannot have an opinion on your sickness in arrears. …You appealed against the NSW Police force and you had an obligation to prove that you were a responsible person and you were expected to be at that appeal meeting…You asked me to provide evidence for your non-attendance. Certificates can be rejected and they can be challenged if they do not contain adequate explanation and this happens all the time…You did not adequately explain what made you too sick to attend an appeal that you had organised without support from your GP or a lawyer, in which you challenged the NSW Police force.
You have been told that you have a drinking problem by relatives, friends, Doctors, Psychiatrists and the NSW Police Force….You said you could not afford a lawyer and you also thought that the obligation to travel to Sydney was unfair. Then you said that you had been busy meeting the obligations of the property that you shared with your elderly parents. You said your father had a stroke. So, you have already contradicted yourself, because that it [was] not you being sick….I don't want to help you to get a firearms licence and I don't know how to tell you without being ambiguous.
[4]
Relevant law
Section 55 of the Administrative Decisions Review Act 1997 states that an application to this Tribunal is to be made in the time and manner prescribed by the procedural rules. Unless an extension is granted by the Tribunal, an application for review must be lodged within 28 days after the day on which the internal review is taken to have been finalised (clause 24 of the Civil and Administrative Tribunal Rules 2014.)
In accordance with the provisions of section 41 of the Civil and Administrative Tribunal Act 2013, the Tribunal may 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.'
Although section 41 of the Civil and Administrative Tribunal Act does not indicate what factors must be considered when dealing with an application for an extension of time, this section (and its predecessor, section 57 of the Administrative Decisions Tribunal Act 1997) have been considered in cases both before this Tribunal and, in the case of section 57 of the Administrative Decisions Tribunal Act, before the former Administrative Decisions Tribunal.
The grant of an extension of time is not automatic. The discretion to extend time is given for the sole purpose of enabling the Tribunal to do justice between the parties. 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. It is also necessary to consider the prospects of the applicants succeeding in their application. In order to justify the Tribunal extending the time, there must be some material upon which the Tribunal can exercise its discretion: see Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2] per McHugh J. See also Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16] and Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20].
Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted.
As is clearly set out in Jackson v Land and Housing Corporation [2014] NSWCATAP 22, albeit in the context of an appeal, the relevant considerations to be taken into account by the Tribunal in deciding whether to grant an extension of time are:
1. The length of the delay;
2. The reason for the delay;
3. The applicant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
4. The extent of any prejudice suffered by the respondent.
Similar considerations are to be taken into account in the context of an application for review. This is made clear in the decision of Saleam v Registrar, Registry of Births, Deaths & Marriages [2011] NSWADT 254.
[5]
The length of the delay
Mr Mackay was required to make his application to the Tribunal within 28 days of the date of the finalisation of the internal review, namely 13 May 2015. When he lodged the application on 24 July 2015, he was 72 days late.
[6]
The reason for the delay
In support of his application for an extension of time in which to lodge his application for review, Mr Mackay has provided a medical certificate from Dr Mulvey. The medical certificate, which is undated, states that Mr Mackay suffers from emphysema, has not felt well since January 2015 and has had a very high serum ferritin and abnormal liver function tests. The medical certificate does not state, however, that these conditions prevented Mr Mackay from lodging his application for review within the relevant time period. As the medical certificate is both undated and does not specifically consider Mr Mackay's medical situation during the time period between the internal review decision, which was made on 1 April 2015, and his lodgement of the application for review on 24 July 2015, it does little to provide a convincing explanation for Mr Mackay's delay in lodging his application for review.
In his application for review, Mr Mackay writes that the application was lodged outside the time allowed because 'I have been unable to respond sooner as I have been unwell.' This does not provide an adequate explanation for the delay, particularly as the material before the Tribunal shows a trail of correspondence between Mr Mackay and the respondent in the time between the internal review and the lodgement of the application for review, that is, between 1 April 2015 and 24 July 2015.
The letters sent by Mr Mackay during this period are detailed, unlike the Administrative Review Application Form, which is a relatively simple form to complete. On this basis, the Tribunal does not accept that Mr Mackay was precluded from lodging his application for review within time on the basis of poor health.
[7]
The applicant's prospects of success
Section 11(4)(c) of the Firearms Act states that the Commissioner (or on review the Tribunal) must not issue a licence to a person if the Commissioner (or the Tribunal) has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of his intemperate habits.
On the evidence before the Tribunal, it appears that Mr Mackay has a significant and long-term problem with alcohol, which may affect his ability to exercise continuous and responsible control over a firearm. Evidence in support of this view is contained in the risk assessment report for Mr Mackay by Dr Bradley and in letters to Mr Mackay by his former general practitioner, Dr Nichols. COPS reports contained on file also allege interactions between police officers and Mr Mackay on occasions when Mr Mackay was said to be heavily intoxicated. No cogent reason has been put forward by Mr Mackay as to why this evidence should be disregarded.
Section 11(7) of the Firearms Act states that the Commissioner (or on review the Tribunal) may refuse to issues a licence if the Commissioner (or the Tribunal) considers that the issue of the licence would be contrary to the public interest.
In Livadura v Commissioner of Police, NSW Police Force [2008] NSWADT 160, it was held that 'in considering the public interest, regard must be had to underlying principles of the Act, stated in section 3(1), emphasising that firearm possession and use is a privilege conditional on the overriding need to ensure public safety.'
In Ward v Commissioner of Police [2000] NSWADT 28, it was held that in dealing with the question of whether or not a person would pose a risk to public safety, the Tribunal must be satisfied that there is virtually no risk.
The material before the Tribunal indicates that Mr Mackay has had, and continues to have, a serious alcohol problem. In light of his alcohol use, the psychiatrist, Dr Bradley, and Mr Mackay's former general practitioner, Dr Nichols, have formed the view that Mr Mackay should not hold a firearms licence. On the basis of the medical evidence before it, it would be difficult for the Tribunal to be satisfied that there would be virtually no risk to public safety if Mr Mackay were to be granted a firearms licence. The fact that Mr Mackay has completed a SSAA safe shooting certificate would not allay the Tribunal's concerns in this regard. For these reasons, the Tribunal is not convinced that Mr Mackay has a fairly arguable case or that his prospects of success are good.
[8]
Prejudice
The Tribunal accepts that the respondent has been put to the inconvenience of Mr Mackay's failure to appear before the Tribunal on 29 September 2015. Mr Mackay has also been late not only in lodging his application for review but also in providing submissions and evidence in relation to his request that he be granted an extension of time in which to lodge his application for review. No other prejudice has been occasioned to the respondent.
[9]
Conclusion
Mr Mackay's delay in lodging his application for review against the decision to refuse him a firearms licence is not insubstantial. His reasons for the delay - namely his ill-health and medical conditions - are not adequately supported by the evidence before the Tribunal. There is substantial evidence before the Tribunal that Mr Mackay has a long-term problem with alcohol and that because of this may not exercise continuous and responsible control over a firearm. There is also evidence before the Tribunal to indicate that it may not be in the public interest for Mr Mackay to hold a firearms licence. This evidence would be relevant to his prospects of success on review of the decision to refuse him a firearms licence. Having considered all these factors, the Tribunal has determined that it should refuse Mr Mackay's application for an extension of time in which to file his application for review of the decision to refuse him a firearms licence.
[10]
Orders
The application for an extension of the time in which to lodge an application for review to the Tribunal is refused.
The application is dismissed.
[11]
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: 09 December 2015