MIDDLECOAT -v- COMMISSIONER OF POLICE [2012] WASC 309 (30 August 2012)

3 On 8 October 2010 the appellant sought review of the revocation decision in the SAT. Whilst those proceedings were pending, in or about March 2011, the appellant made an application to the Commissioner to renew the firearms licence, notwithstanding that it had been revoked. That application was refused. On 27 April 2011 the SAT ordered, by consent, that the respondent's refusal to renew the licence be included as a decision in respect of which review was sought in the SAT proceedings.

4 On 26 September 2011 the SAT dismissed the review application and affirmed the respondent's decisions to revoke and not renew the licence. On 4 November 2011 the SAT made orders, by consent, fixing the date of effect of its decision as 18 September 2011.

5 The appellant has now appealed to this court on the grounds that the SAT erred in law in dismissing the application for review. Before the substantive appeal was heard the parties sought that a preliminary issue be determined. That issue was critical to the appeal. A hearing of that issue occurred on 12 June 2012.

6 The preliminary issue arises from the terms of s 9A(7) of the Firearms Act. That subsection provides that a licence cannot be renewed more than 12 months after its expiry. The respondent contends that because the licence expired on 20 September 2010 and more than 12 months has now passed since that date, it is no longer possible, as a matter of law, for the licence to be renewed. Accordingly, it is submitted that even if the appellant was able to make out any of his grounds on the appeal it would not be possible for this court (or the SAT if the matter was remitted for a rehearing) to make any decision that would have the effect of renewing the licence. In those circumstances the respondent submits that the court should dismiss the appeal in the exercise of its discretion to refuse relief where no practical result could flow from the success of the appeal.

7 For the reasons that follow I have concluded that the respondent's contention is correct and that the appeal must be dismissed.

8 On 15 April 2010 police attended at the appellant's property and located two unsecured gun cabinets that were freestanding and not affixed as required by the Firearms Act. The police also located three unlicensed firearms in one of the cabinets, a stun gun (which is a prohibited device in this State) and a backpack containing a licensed pistol and an ammunition belt. The police also located a quantity of unlicensed ammunition of various types.

9 The appellant was charged with seven charges, they being three charges of possessing an unlicensed firearm contrary to s 19(1) of the Firearms Act; one charge of possessing a prohibited weapon contrary to s 6(1)(b) of the Weapons Act 1999 (WA); one charge of failing to observe the requirements of storage responsibilities contrary to s 23(9)(d) of the Firearms Act; one charge of failing to ensure safekeeping of a firearm and ammunition contrary to s 23(9)(a) of the Firearms Act; and one charge of possessing unlicensed ammunition contrary to s 19(1) of the Firearms Act.

10 On 11 May 2010 the appellant pleaded guilty to the seven charges and a $2,000 global fine was imposed. He sought a spent conviction order but this was refused by the magistrate.

11 The appellant then appealed his sentence to this court. In particular, he appealed against the refusal to grant him a spent conviction. On 19 October 2010 McKechnie J allowed the appeal on the basis that the magistrate had made a factual error and, in the reexercise of the sentencing discretion, His Honour made a spent conviction order: Middlecoat v Bluett [2010] WASC 300.

12 As a result of the convictions a delegate of the respondent formed the opinion that the appellant was not a fit and proper person to hold a firearms licence and that therefore his licence would be revoked: s 20 of the Firearms Act. That revocation was stated to be effective on the date of service of notice of the decision. Notice of the decision was contained in a letter dated 31 August 2010 that was served on the appellant on 18 September 2010.

13 The appellant had a right to seek a review of the revocation decision pursuant to s 22(2) of the Firearms Act. He exercised that right by lodging an application with the SAT on 6 October 2010.

14 The review in the SAT was conducted on the papers. In support of his decision the respondent relied on the seven Firearms Act convictions and also on other information in relation to the appellant's character. Although the appellant was subsequently successful on his criminal appeal in obtaining a spent conviction order this had no material impact on the review. This is because the Spent Convictions Act 1988 (WA) permits regard to be had to a matter that resulted in a spent conviction order for the purpose of 'a person applying for the issue of a licence under the Firearms Act 1973': cl 1 sch 3 Spent Convictions Act. There was a question in the review proceedings in the SAT as to whether that exception applied to revocations under the Firearms Act, but that is not a matter that I need to resolve on this appeal.

15 The respondent raised a preliminary issue before the SAT to the effect that the review as futile: see, for example, Tonkin and Commissioner of Police [2011] WASAT 24. However, the SAT ruled that if the review was successful then at any point up to 20 September 2011 the appellant had a right to seek a renewal of his licence in accordance with s 9A(4) of the Firearms Act. This meant that there was, as the Tribunal described it, 'a window for renewal that extended for 12 months after expiry of the revoked licence'. Because the appellant was still within that window at the time the review was under consideration the preliminary point was dismissed.

16 The SAT published its decision refusing the application for review on 26 September 2011. The appellant then sought clarification from the SAT as to the date upon which the order dismissing the application had been made. This was because it had been agreed that in order to preserve the rights (if any) of the appellant any decision and orders in the review would be issued with effect no later than 18 September 2011. The SAT made the clarification and fixed the date of the effect of its decision as 15 September 2011. This was said to have been in the exercise of the Tribunal's powers under s 29(5)(b) of the SAT Act to fix a date when a decision would or will have effect and also under s 83(1)(b) of the SAT Act to correct any accidental slip or omission.

17 Whilst not expressly stated by the Tribunal, it would appear that the reason why it was considered necessary for the review to be determined before 18 September 2011 was to allow for the licence to be renewed in the event that the revocation decision was set aside. This appears to have been on the assumption that a renewal would only be possible within 12 months of the expiry of the licence. Of course, that did not resolve the question as to what would happen in the event that the review was refused and the revocation decision affirmed. That is what occurred. The appellant then sought leave to appeal to this court by an appeal notice filed on 22 December 2011.

18 Section 9A of the Firearms Act provides as follows:

Duration and renewal of licences

(1) The period for which this section provides that a licence is valid is subject to -

(a) any other provision of this Act; and

(b) anything endorsed on the licence,

under which the licence ceases to be valid earlier.

(2) An Ammunition Collector's Licence is valid for a period of 5 years from the day on which it was issued or last renewed.

(2a) A Firearm Collector's Licence is valid for a period of 3 years from the day on which it was issued or last renewed unless that day was before the day on which the Firearms Amendment Act 2004 section 12 came into operation, in which case it is valid for a period of 5 years from the day on which it was issued or last renewed.

(3) Any other licence under this Act is valid for a period of 12 months from the day on which it was issued or last renewed.

(4) The Commissioner may, on payment of the prescribed fee, renew a licence from time to time for further periods on application made within one month before, or within 12 months after, its expiry.

(5) Where a licence is renewed on application made within one month before, or within 3 months after, its expiry, it is deemed to have been renewed immediately after its expiry and the renewal is deemed to be a continuation of the licence.

(6) Where a licence is renewed on application made more than 3 months, but not more than 12 months, after its expiry, the renewal takes effect on and from the day on which it is effected but, for the purpose of determining the day when the renewed licence expires, it is deemed to have been renewed immediately after it previously expired.

(7) A licence cannot be renewed under this section more than 12 months after its expiry, but the person who held it is not prevented from making an application for a licence under section 18(1).

19 Section 9A was inserted in 1996 by the Firearms Amendment Act 1996 (WA). It deals generally with the renewal and duration of firearms licences. The Amendment Act was passed in the wake of the tragic events that occurred at Port Arthur in Tasmania on 28 April 1996: see McGee v Chitty [2011] WASCA 125 [38] (Mazza J, with whom Pullin and Newnes JJA agreed)

20 Section 9A(3) of the Firearms Act provides that a firearms licence (other than a firearm collectors licence or an ammunition collectors licence, which are not of concern here) is valid for 12 months. However, s 9A(4) provides that the Commissioner may, on payment of the prescribed fee, renew a firearms licence on application made within one month before, or within 12 months after, its expiry. Where a firearms licence is renewed on an application made within one month before and three months after it expires, it is deemed to have been renewed immediately after expiry: s 9A(5). Where a firearms licence is renewed on an application made more than three months but less than 12 months after its expiry then that renewal takes effect from the date on which it is effected. However, for the purpose of determining when the renewed firearms licence expires it is deemed to have been renewed immediately after it initially expired: s 9A(6). The effect of this is that if an application to renew is made more than three months after expiry of the licence it will commence when the renewal takes effect and expire on a date that is 12 months from the previous expiry date. Accordingly, a licence renewed one day before the end of the 12 month period following the previous expiry will itself expire on the following day but may then be renewed in the following 12 month period.

21 The rationale for these renewal arrangements is not clear from the Act. Nor is it clear from any of the background material that was provided at the hearing. It was suggested in submissions that the purpose was to provide a grace period for farmers who may not remember to renew their firearms licence before they expire. Whatever the reason, the appellant pointed out that the provisions of s 9A were not new at the time of the 1996 Amendment Act but reflected the content of previous provisions: see s 18 of the 1983 Act.

22 The crucial subsection for the purpose of this appeal is s 9A(7). That section relevantly provides that a licence cannot be renewed more than 12 months after its expiry. It also makes clear that this does not prevent a person who formerly held a firearms licence from making a fresh application for a licence.

23 The significance as far as the appellant is concerned in being able to renew a licence rather than make a fresh application is that under the relevant regulations renewals will generally occur as a matter of course (though the Commissioner does retain a discretion in this regard). In this respect, it is necessary to refer to the Firearms Regulations 1974 (WA). Regulation 3B and reg 4 provide as follows:

(1) The prescribed form of a licence or permit issued under the Act is the applicable form in Schedule 1.

(2) If -

(a) a person holds a firearm licence, a firearm collector's licence or a corporate licence; and

(b) applies for the same licence but for an additional firearm; and

(c) a licence is issued for the additional firearm,

the licence for the additional firearm forms part of the original licence and expires on the same date as the original licence.

(3) A licence is not renewable as of right.

(4) The Commissioner may treat an application for the renewal of a licence as an application for the grant of a licence and, in particular, may require the applicant to produce a current firearm serviceability certificate for the firearm.

(5) The fee prescribed for the renewal of a licence is subject to apportionment under section 18(4) of the Act as if it were payable for the issue of the licence.

(1) The Commissioner may, within 28 days of the expiry of a licence or a permit under section 17 of the Act, send a notice to the holder of the licence or permit inviting him or her to renew it by paying the fee for that renewal at a place approved by the Commissioner.

(2) If the holder pays the fee in accordance with the notice -

(a) the holder is to be taken to have applied for the renewal under regulation 3A; and

(b) the licence or permit is taken to have been renewed.

24 As is evident from these regulations, a licence is not renewable as of right and it is open to the Commissioner to treat an application for renewal as an application for the grant of a licence. However, other than in such cases, if a licence holder pays a fee in accordance with a renewal notice the licence holder is taken to have applied for renewal and the licence is taken to have been renewed: reg 4. Accordingly, the real difference appears to be that in respect of an application for a new licence the Commissioner cannot grant approval if, amongst other things, he is of the opinion that it is not desirable in the interest of public safety or the person is not a fit and proper person to hold the licence: s 11. Such an assessment may, but will not necessarily, occur on a licence renewal.

25 The respondent's argument is simple. He contends that the plain meaning of s 9A(7) is that a licence cannot be renewed more than 12 months after its expiry. More than 12 months has now passed since the licence expired. The 12 month grace period expired on 20 September 2011. Notwithstanding that the appellant made an application to renew the licence within that 12 month period, that application was ineffective because the licence had by then been revoked and, in any event, the application to renew was refused. In those circumstances, it would no longer be open for the Commissioner to grant a renewal as to do so would be contrary to s 9A(7). Since the SAT on review and this court on an appeal can only exercise those powers available to the original decision maker, it is no longer possible, regardless of the merits of the grounds of appeal, for the licence to be reinstated as an outcome of the appeal proceedings.

26 The appellant's response is that the powers of the SAT and of this court are not confined to those available to the Commissioner under s 9A. He submits that the crucial words in s 9A(7) are 'under this section'. He submits that when the SAT is exercising its powers pursuant to s 29 of the SAT Act it does so under that section and not pursuant to the Act under which the original decision was made. In other words the SAT, it is said, derives its review powers from the SAT Act, and is not confined by the provisions of the Acts under which the decisions it reviews are made. For those reasons the appellant contends that the SAT, and consequently this court on appeal, can order renewal of the expired licence notwithstanding the prohibition in s 9A(7).

27 The appellant's argument depends critically on the interpretation of s 29 of the SAT Act. That section provides as follows:

Tribunal's powers in review jurisdiction

(1) The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision.

(2) Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal.

(3) The Tribunal may -

(a) affirm the decision that is being reviewed; or

(b) vary the decision that is being reviewed; or

(c) set aside the decision that is being reviewed and -

(i) substitute its own decision; or

(ii) send the matter back to the decisionmaker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,

and, in any case, may make any order the Tribunal considers appropriate.

(4) The fact that a decision is made on reconsideration as required under subsection (3)(c)(ii), does not prevent the decision from being open to review by the Tribunal.

(5) The decisionmaker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decisionmaker's decision -

(a) is to be regarded as, and given effect as, a decision of the decisionmaker; and

(b) unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect.

(6) Without limiting subsection (5)(a), the decisionmaker has power to do anything necessary to implement the Tribunal's decision.

(7) Despite subsection (5)(a), the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decisionmaker.

(8) Subsection (5)(a) does not affect an appeal under Part 5 against the Tribunal's decision.

(9) To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decisionmaker.

28 The appellant submits that the purpose of review proceedings is to correct decisions shown to be wrong and to make the decision that should have been made at the time of the decision upon the review. He suggests that this purpose is evident from s 29(2) which states that the power of the SAT provided for in s 29(1) to exercise the functions and discretions of the original decision maker does not limit powers given to the Tribunal by either the SAT Act or the enabling Act. The appellant suggests that s 29(3)(c)(i) should be viewed as being sufficiently broad in its terms to enable a decision to be made which can be effectively backdated to the time that the original decision was made even if this could not be done by the original decisionmaker. By this means it is suggested that in the event the appeal was allowed it would be open for a decision to be made that could be backdated such that the appellant would continue to have a right of renewal.

29 For the following reasons the appellant's contentions cannot be accepted. First, s 9A(7) is plain in its terms. Its effect is to ensure that after a period of more than 12 months has elapsed since a licence has expired, the licensee cannot simply renew their licence but must reapply for it. It is not difficult to think of policy reasons why such a prohibition is necessary. At some point after a licence expires it must be likely that the circumstances will have changed so significantly that it would be more appropriate for a new licence to be sought so that a reassessment of suitability can be made. Parliament has clearly determined that that time is 12 months. There is no reason why that timeframe, and the policy reasons that underpin it, should not apply equally in circumstances where a person has sought to review a decision to revoke a licence or to refuse a renewal.

30 Secondly, it is consistent with the balance of s 9A that renewals should not occur more than 12 months after expiry. Section 9A(4) allows for a grace period on an application to renew of no more than 12 months. The evident purpose of s 9A(7) is to confirm that at whatever time an application to renew is made, no decision by the Commissioner to grant a renewal can be made after the 12 month period has expired.

31 Thirdly, the words 'under this section' appearing in s 9A(7) were clearly not intended to be words of limitation. That is, it is not apparent that they were intended to allow for an exception in the event of a review to the SAT. The words 'under this section' are a reference to the obvious fact that any renewal must occur under that section. The fact that the SAT has the power on a review to exercise the powers of the original decisionmaker does not render the provisions of s 9A irrelevant. Clearly, any decision made by the SAT to renew a firearms licence is made pursuant to the combined effect of s 27 and s 29 of the SAT Act and s 9A of the Firearms Act.

32 Fourthly, contrary to the submissions of the appellant, s 29(2) cannot, in this case, be interpreted as conferring on the SAT a power to make a decision that would otherwise be contrary to s 9A(7). Section 29(2) allows for the possibility that the powers of the SAT may be broader than those of the original decisionmaker. But whether they are or not depends upon there being some other source of power either in the SAT Act or in the enabling Act. No such source of power exists here.

33 Fifthly, s 29(9) of the SAT Act makes it clear that the Tribunal cannot exercise its review powers in respect of a question before it that is different in essence from the matter that was before the decisionmaker. If there was a power not only to set aside and make a fresh decision but also to backdate that decision so as to avoid the effect of s 9A(7) then that decision would be one involving a significantly additional component and for that reason be different in essence from the decision of the decisionmaker.

34 Sixthly, the power of the SAT under s 29(3)(c)(i) to set aside the decision being reviewed and substitute its own decision does not in terms suggest that the decisions available to the SAT are different in kind and broader than those available to the original decisionmaker. To the contrary, in the absence of some express power to renew a licence more than 12 months after it expired, no such power could be inferred from the terms of s 29.

35 Seventhly, in similar circumstances in regard to other legislation the SAT has not interpreted s 29 in the way suggested here by the appellant. In Dunbar and the Commissioner of Police [2007] WASAT 90 Chaney J stated:

As I observed in Dulzurah Pty Ltd and Fisheries Department of Western Australia [2005] WASAT 144 at [29], nothing in s 29, or any other provision of the SAT Act, places the Tribunal in the shoes of the decision-maker for any purpose other than dealing with the decision under review. It is not open to the Tribunal to exercise some other discretion vested in the decision-maker where a decision in the exercise of that discretion is not the subject of the review. That is clearly so where there are pre-conditions to the exercise of the other discretion such as the requirements for renewal prescribed by s 49 of the SRA Act - see Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31; (1999) 90 FCR 513 at [45] [55].

It is not open in these proceedings, for the Tribunal to issue a new licence to Mr Dunbar, nor to renew the expired licences.

This case can be distinguished from the facts in Cuddles Group Pty Ltd and Director General, Department for Community Development [2006] WASAT 114 where the Tribunal extended the operation of a licence until determination of the application for review, despite the fact that the licence had expired. The distinction lies in the fact that the decision there under review was a decision not to renew a licence, the renewal of which was a statutory entitlement in the absence of the decision-maker's decision not to renew. The power to extend the licence until the matter was finally determined was clearly a power available to the decision-maker in making the decision whether or not to renew, and thus came clearly within the powers conferred upon the Tribunal by s 29(1) of the SAT Act. In this case, the process of renewal involves an application and an exercise of discretion which would have occurred in April and May 2006. The decision under review is a decision in relation to revocation made in July 2003. The two are distinctly different discretionary decisions.

Does time run on the licences after revocation?

The applicant contends that 'time cannot run against the licence whilst it is revoked'. It is submitted that, because the licence had a further 34 months to run when it was revoked, the applicant would be entitled to a further 34 months operation of his licences if the Tribunal were to set aside the licensing officer's decision.

There is no statutory basis for that contention. It ignores s 29(5) of the SAT Act which provides that a decision that the Tribunal substitutes for the decision-maker's decision is to be regarded, unless the enabling Act states otherwise or the Tribunal orders otherwise, as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect. That provision is inconsistent with the proposition that the term of the licence is suspended and recommences from the date of the decision on review. It does not assist the applicant that s 29(5) contemplates a power for the Tribunal to order that the decision should have effect from some time other than when the reviewable decision would have had effect. In the circumstances of this case, it would be pointless for the Tribunal to make an order that the revocation be set aside as from the date of the decision on review, because on that date, no current licence exists upon which the order could have effect [19] - [23].

36 The same reasoning is applicable here. If the revocation decision of 18 September 2010 had not been made, or was set aside on review, the effect would have been to keep alive the then current licence. However, that licence would have expired in any event on 20 September 2010 and was not renewed within the permissible time. Whilst the refusal to renew was also challenged, the fact is that now more than 12 months has elapsed since the licence expired and the enabling act specifically prohibits a renewal after that period. Section 29(5) of the SAT Act can not assist in these circumstances.

37 Furthermore, this is not a situation where there is any basis for making a stay order under s 25 of the SAT Act. That is because no stay order could be made which would negate the effect of s 9A(7). Unlike in the case of Cuddles Group Pty Ltd and Director General Department of Community Development [2006] WASAT 114 the present matter involves not merely a renewal but also a revocation. The application for renewal was always dependent upon the setting aside of the revocation. Because of the revocation the application to renew had no effect and was, in any event, refused. No order that the SAT could make in respect of the renewal application would have had the effect of keeping alive a licence that had already been revoked.

38 The effect of this is that any proceedings undertaken by the appellant had to be completed and result in a favourable decision within the 12 month period from the expiry of the licence. If that was not achieved the proceedings would become redundant. The appellant suggested that this was an unfair result because it put him in a situation where he would be at the mercy of delays that may occur in the SAT and in the courts. I accept that that is so, but it does not justify coming to a conclusion which would be contrary to the clear terms of the Firearms Act and the SAT Act.

39 Section 105 of the SAT Act provides that an appeal from a decision of the SAT of this nature may only be brought with leave and on a question of law. Section 105(9) provides that in dealing with an appeal the court may affirm, vary or set aside the SAT's decision, make any decision the SAT could have made in the proceedings or remit the matter to the SAT. The section also empowers the court to make any order the court considers appropriate.

40 Since I have concluded that the SAT's powers on review correspond to those of the original decisionmaker and that it is no longer open for the Commissioner to renew the licence it follows that the SAT would now also be prohibited by s 9A from renewing the expired licence. Similarly, the court's powers on appeal are so limited.

41 In these circumstances the preliminary issue must be determined in favour of the respondent. Regardless of the merits of the appellant's grounds of appeal no practical result could flow from success of this appeal. For those reasons leave to appeal is refused and the appeal is, therefore, dismissed.