Plaintiff v First Respondent

2 Mr Swebbs and the Chief Commissioner of Police prepared a joint memorandum requesting the Court to set aside the decision of the Magistrate and remit the matter to the Magistrates' Court, differently constituted, for rehearing.[1] The key grounds of Mr Swebbs' application[2] that are said to justify the orders sought are grounds (d)(v) and (vi) of the amended originating motion which are as follows:

(d) That the first named respondent, His Honour Magistrate Crisp, erred at law and/or there was an error on the face of the record in dismissing the Plaintiff's application where in the circumstances:

...

(v) he declared that it is illegitimate to make an application to be deemed a non-prohibited person during the currency of the intervention order which caused the status of being a prohibited person to arise without basis for such a declaration in law;

(vi) he refused to follow the law as disclosed in Pickford v Chief Commissioner of Police [2002] VSC 435 and followed in Clark v Chief Commissioner of Police [2010] VSC 144 and declared in one instance that the approach of the Supreme Court was misconceived and in another instance not binding upon him.

3 The third respondent,[3] Ms T Symons, indicated that she did not wish to participate in the proceedings in this Court, however, should the matter be remitted, she may wish to participate because of concerns for her safety.[4]

4 In judicial review proceedings, the Court cannot make consent orders setting aside an order unless satisfied that the orders are appropriate. For the reasons set out below, I am satisfied that the orders proposed are appropriate.

5 Mr Swebbs had possessed firearms. On 24 November 2015, he was served with an interim family violence intervention order. At a hearing on 15 December 2015, he consented to a final family violence intervention order without making admissions. The order, which was for 12 months, named four affected family members. It did not contain a firearms prohibition. But, upon the making of the order, Mr Swebbs became a prohibited person under the Firearms Act unable to possess, carry or use firearms.

6 Mr Swebb says that he was told of the 'five year prohibition' effect of the intervention order on his possession of firearms only after the order was made, and was also told, at that time, by the duty lawyer at the court that his appropriate course was to apply to be deemed not to be a prohibited person. He filed such an application with the Magistrates' Court then and there.

prohibited person means -

(c) a person who is subject to -

(i) a final order under the Family Violence Protection Act 2008 that does not include conditions cancelling or revoking a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory;

8 The Court is given a discretion to declare that a person is deemed not to be a prohibited person in the following terms:

189 Application to be deemed not to be a prohibited person

(1) A person who is a prohibited person referred to in paragraph (c)(i) of the definition of prohibited person in section 3(1) may apply to the Court for a declaration that the person -

(a) is deemed not to be a prohibited person by virtue of being or having been subject to a final order of a kind referred to in that subparagraph; or

(b) is so deemed for limited purposes only.

9 Section 189 both gives the right to an otherwise prohibited person to apply for a deeming declaration and gives the Court the discretion to determine whether to make that declaration.

10 In my opinion, the Magistrate erred in exercising the discretion conferred by s 189 to determine Mr Swebbs' application. He wrongly considered that the application was incompetent because it was made during the term of the intervention order. He said:

I do not think the application is competent today, I do not think it is competent until the expiry of the order, even if the order is sought to be extended.

11 The Magistrates' Court can exercise the discretion conferred by s 189 during the currency of the intervention order provided that it is an intervention order without a firearms condition as was the case here.[5] The Magistrate erred in deciding that no application under s 189 could be made during the currency of the intervention order.

12 The second error that the Magistrate made was to disregard Nettle J's description in Pickford v Chief Commissioner of Police[6] of the ambit of the discretion conferred by s 189, which was in the following terms:

Unguided by authority, however, it appears to me that the section was to enable a person to be relieved of the consequences of being a prohibited person when, viewed objectively, the circumstances which gave rise to that status, or developments since, or both in combination, impel the conclusion that it is not appropriate or desirable that the person be afflicted with the consequences of being a prohibited person. Such guidance as is to be derived from the Parliamentary debates is at least not inconsistent with that view.[7]

13 Nettle J's description of the purpose of the section should have been used by the Magistrate as a guide to the proper exercise of discretion conferred by s 189. It should be so used by the Magistrate who rehears the application. Of course, in the nature of the exercise of a discretion, it will be for the Magistrate to weigh the facts that are relevant to the proper exercise of the discretion. These may well include: why the intervention order was made, whether it is still required, the views of the person for whose protection it was made, the views of the police and any other matters bearing on the risks that may flow to the community from the applicant being able to possess firearms. A number of the remarks made by the Magistrate suggest that he had regard to matters that were not related to the purpose of the Family Violence Protection Act 2008.

14 The discretion contained in s 189 is broad and its limits are to 'be determined by implication from the subject-matter, scope and purpose of the Act'.[8] The Magistrate was required to examine the circumstances of the case, and determine, when those circumstances were considered objectively, whether Mr Swebbs' application should be granted. The Magistrate did not follow that path.

15 The Magistrate's decision involved errors of law on the face of the record by imposing invalid limitations on the power contained in s 189 and not exercising the discretion conferred by s 189 in accordance with law.

16 I propose to make an order in the nature of certiorari quashing the order of the Magistrate at the Magistrates' Court at Frankston 5 August 2016 in proceeding Z01097951 refusing Mr Swebbs' application under s 189 of the Firearms Act 1996. Mr Swebb's application is to be remitted to the Magistrates' Court at Frankston for rehearing and determination in accordance with law by a different Magistrate.

17 Mr Swebbs has foreshadowed that he will seek costs against the Magistrates' Court. I have set out in the order a time table for any such application to be made. It will be decided on the papers once any such submissions are received.

[1] Pursuant to Practice Note SC CL 9. The first respondent adopted a Hardiman stance.

[2] Mr Swebbs sought to file an amended originating motion by consent of the third respondent and I give leave for him to do so.

[3] The originating motion and amended originating motion described the defendants as respondents and I will use that description.

[5] See Stephensen v Lebessis [2014] VSC 498 as to the effect of an intervention order with a firearms condition.

[6] [2002] VSC 435.

[7] [2002] VSC 435, [6] (Citations omitted). This statement was applied in Clark v Chief Commissioner of Police [2010] VSC 144.

[8] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-40 (Mason J).