POLIZZI -v- COMMISSIONER OF POLICE [2015] WASC 319 (28 August 2015)

4 A direction was made that the issue raised by the respondent should be determined as a preliminary issue in the appeal. I have concluded that there may be utility in the appeal for reasons that were not raised in Middlecoat.

The Firearms Act

5 The Firearms Act creates various offences relating to the possession of, or dealings with, firearms or ammunition without a licence or permit issued pursuant to the Act (s 19). The Act permits various types of licences to be issued, including a firearm licence that entitles the holder to possess, carry and lawfully use the firearm named and identified in the licence and ammunition for that firearm (s 16(1)(a)).

6 Section 18(1) of the Firearms Act provides the procedure by which a person may apply for a licence or permit under the Act. Section 11(1) states that the Commissioner cannot grant an approval or permit, or issue a licence under the Act to a person if the Commissioner is of the opinion that, among other things, the person is not a fit and proper person to hold the approval, permit or licence. Section 20 provides that the Commissioner may refuse to renew or may revoke any licence, permit or approval where the Commissioner is satisfied, among other things, that a person who is the holder of a licence, permit or approval under the Act could not, because of s 11, be granted the approval or permit or issued the licence, as the case requires, if the person were then applying for it.

7 Section 9A(3) of the Firearms Act specifies that a firearm licence is valid for a period of 12 months from the day on which it was issued or last renewed. Section 9A further provides, in relation to renewal of licences, that:

(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 three 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 three 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 s 18(1).

8 The Commissioner's delegate decided that the appellant's firearm licence should be revoked under s 20 of the Firearms Act on about 3 January 2013. The decision was made pursuant to s 20(1)(a)(iii); that is, the Commissioner's delegate determined that the appellant was not a fit and proper person to hold the licence within the meaning and for the purpose of s 11(1)(c) of the Firearms Act. The appellant applied to the Tribunal for a review of that decision by an application dated 18 January 2013. The Tribunal delivered its decision dismissing the application on 26 September 2014 (its reasons for decision being published on 24 October 2014).

9 It was not in issue that the appellant's licence would have expired on 31 October 2013 if it had not been revoked. Accordingly, the appellant would have been required to apply to renew the licence under s 9A(4) of the Firearms Act sometime between 30 September 2013 and 30 October 2014.

10 Mr Middlecoat sought a review in the State Administrative Tribunal of a decision to revoke his firearm licence. The licence period had apparently expired by the time that Mr Middlecoat commenced his review application. However, the Tribunal held that the proceedings were not futile as there was a 'window for renewal that extended for 12 months after expiry of the revoked licence' (Middlecoat [15]).

11 The Tribunal specified that its decision should take effect shortly prior to the 12month period following the expiry of Mr Middlecoat's licence. That was so that Mr Middlecoat could apply to renew his licence within the 12month period if he succeeded in setting aside the decision to revoke his licence. However, the Tribunal subsequently affirmed the revocation decision.

12 Mr Middlecoat commenced an appeal from the Tribunal's decision. The 12month period following the expiry of his licence had passed by that time. The Commissioner of Police raised a preliminary issue as to whether the appeal ought to be dismissed as (so he contended) the effect of s 9A(7) of the Firearms Act was that Mr Middlecoat's licence could no longer be renewed regardless of the outcome of the appeal. The Commissioner submitted that the court should dismiss the appeal in the exercise of its discretion to refuse relief where no practical result could flow from the appeal: Middlecoat [6].

13 Hall J accepted that submission and dismissed the appeal on determination of the preliminary issue. His Honour held that the combined effect of s 9A and s 29 and s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) was that it was not possible for the court or for the Tribunal, if the matter was remitted for a rehearing, to make any decision that would allow Mr Middlecoat to renew his licence.

14 It is convenient to set out the relevant provisions of the SAT Act before further considering his Honour's reasoning.

(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.

....

(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.

...

(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.

16 Section 105 of the SAT Act provides, so far as is relevant, that an appeal from a decision of the Tribunal can only be brought with leave and on a question of law. Section 105(9) provides that:

(a) affirm, vary, or set aside the decision of the Tribunal; or

(b) make any decision that the Tribunal could have made in the proceeding; or

(c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,

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

17 Hall J rejected an argument to the effect that s 29(3)(c)(i) of the SAT Act, read with s 29(2), allowed the Tribunal to backdate its decision to the date on which the reviewable decision had been made even if the decisionmaker lacked that power. His Honour identified seven reasons why that argument could not be accepted. Briefly summarised, they were that:

(a) the meaning and effect of s 9A(7) of the Firearms Act was plain;

(b) it was consistent with the balance of s 9A that licence renewals should not occur more than 12 months after expiry;

(c) the words 'under this section' in s 9A(7) were not intended to leave open the possibility that the Tribunal could decide to reinstate a licence despite the effect of that subsection;

(d) s 29(2) of the SAT Act allowed for the possibility that the Act or the enabling Act conferred a power on the Tribunal that was wider than the power than had been invested in the decisionmaker - however, neither the SAT Act or the Firearms Act enlarged the powers conferred on the Tribunal;

(e) the effect of s 29(9) of the SAT Act was that the Tribunal was unable to deal with a matter that was different in essence from the matter that was before the decisionmaker;

(f) the power conferred by s 29(3)(c)(i) was not expressed to be sufficiently wide to enable the Tribunal to substitute a decision that was different in kind to the decision made by the decisionmaker;

(g) s 29 had not been interpreted and applied in analogous contexts in a way that was consistent with the appellant's argument.

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 [40].

19 I respectfully agree with his Honour's analysis of the relevant provisions of the Firearms Act and the SAT Act.

20 The appellant apparently accepted that he was prevented from applying to renew his firearm licence by the effluxion of time, although he expressed some grievance about the time taken for his review application to be completed in the Tribunal. However, his primary concern was not with the licence but with the consequences of the decision that he was not a fit and proper person to hold a firearm licence. He stated:

However, it is more to do with the actual decision itself and the finding of my status. That's what I object to. That's what I'm appealing on. The actual firearm licence itself, I'm not bothered; I'm not interested about it. It - that's not a priority for me. It's - it's basically the decision. I understand the court's powers, whatever they are, if they can reverse the decision or not and even if that was the case then there's still an implication if I had to apply for a firearm licence ... there's [sic] stopping me from applying for it. On a hypothetical basis, if this decision was overturned and I'm deemed to be fit and proper I don't see then what would stop me then applying, if I wanted to, and go through the normal process again of a normal application (ts 3 4).

21 Counsel for the respondent noted in answer to that submission that this court would not have the power to make a positive finding that the appellant was a fit and proper person to hold a firearm licence even if it found that the Tribunal had erred. I accept that submission. In the ordinary course, the matter would be remitted to the Tribunal for reconsideration if the decision to affirm the revocation decision was set aside. However, in my view, that does not necessarily mean that an order setting aside the Tribunal's decision would lack utility.

22 Middlecoat apparently proceeded on the assumption that the appellant's sole purpose was to renew his firearm licence. The appeal lacked utility as that purpose could not be achieved, regardless of the outcome.

23 However, a successful appeal in this matter that resulted in the Tribunal's decision being set aside might have some practical effect. The Firearms Act does not expressly prevent a person from applying for a 'new' firearm licence under s 18 of the Act where a previous licence has been revoked (although, it would appear that s 9A(7) does not apply where a licence has been revoked). However, it is plain from the provisions of s 18 that the fact that an applicant had previously held a licence that had been revoked would represent a significant (if not complete) impediment to the grant of a fresh licence - particularly where the licence had been revoked on the ground that the applicant was not a fit and proper person. That is hardly surprising.

24 An appeal from the decision of the Tribunal must be on a question of law. I have not considered whether any of the appellant's proposed grounds of appeal are on a question of law. However, an order setting aside the Tribunal's decision on the ground that it was infected by a material error of law might have, at least, two practical consequences.

25 First, the decision to affirm the revocation decision would no longer stand. That may remove an obvious and immediate impediment to any subsequent application for a firearm licence.

26 Second, the error of law may be such as to materially affect the Tribunal's conclusion that the appellant was not a fit and proper person. Again, that would have a practical effect in respect of any subsequent application that he might make for a firearm licence. Although the court cannot make a positive finding that the appellant was a fit and proper person (and the court could not remit the matter to the Tribunal to reconsider that question), setting aside the decision could neutralise any adverse consequences that might flow generally from a finding that he was not a fit and proper person to hold such a licence. It might also be said that the appellant has a wider 'reputational' interest in exposing any error of law made by the Tribunal in finding that he was not a fit and proper person to hold a firearm licence.

27 In my view, it cannot be said that there is 'no prospect that allowing "the error to go uncorrected would impose substantial injustice"': City of Swan v LWP Property Group Pty Ltd [2013] WASCA 90 [25].

28 Accordingly, I do not consider that the appeal necessarily lacks utility merely because the time for applying to renew the licence has passed. However, that should not be taken as a positive finding that the appeal has utility. In my view, it is necessary for two further matters to be considered in determining whether leave to appeal ought to be granted under s 105(1) SAT Act:

(b) if the appeal is on a question of law, whether that question and any error allegedly made by the Tribunal, were material to the Tribunal's decision (the appeal would apparently lack utility if the question/error was immaterial).

29 Accordingly, I will hear from the parties as to the directions to be made for determining those questions.