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[2014] VSC 498
General information, not legal advice.
Supreme Court of Victoria
2014-10-07
GINNANE J
Original judgment source is linked above.
APPEAL - Magistrates' Court - Family violence order including firearms condition - Revocation of order - Whether subject of order could apply for a declaration that he was not a prohibited person under Firearms Act - Appeal allowed - Firearms Act 1996 (Vic) ss 3, 189; Family Violence Protection Act (Vic) , , , , , , , , .
1 This appeal from the Magistrates' Court raises an important question about the operation of final family violence intervention orders with firearms conditions made under the Family Violence Protection Act 2008 (Vic). The appeal requires determination of when a person, against whom such an order has been made, can apply for a declaration that he or she is deemed not to be a prohibited person from holding a firearm under the Firearms Act 1996 Act (Vic) by virtue of having been subject to the order. Can such a person obtain such a declaration when the family violence intervention order and the firearms condition are revoked or does the person have to wait five years from when he or she was subject to the final family violence intervention order with the firearms condition?
2 Mr Peter Lebessis, the respondent, applied for such a declaration. On 11 June 2013, a Magistrate sitting at Heidelberg, without any opposition being expressed by the representative of the Victoria Police who appeared, made such a declaration. The appellant, who is a member of the Victoria Police and who sought the original final family violence intervention order, now appeals, arguing that the Magistrate lacked jurisdiction to make the declaration because five years had not elapsed since the revocation of the order including the firearms condition.[1]
3 The two Acts complement each other and serve, amongst other things, to protect Victorians from violence, involving the use of firearms.
4 Mr Lebessis did not appear at, and was not represented at, the hearing of this appeal and I therefore only heard argument on behalf of the appellant. Inquiries that I directed on the day of the hearing revealed that Mr Lebessis was 'not defending the appeal'.[2] However, counsel for the appellant, helpfully and properly, directed my attention to arguments that might have been put on Mr Lebessis' behalf if he had appeared or been represented.
5 On 16 April 2012, upon the application of the appellant, Constable Stephensen, a Magistrate sitting at Heidelberg made a final family violence intervention order against Mr Lebessis pursuant to the Family Violence Protection Act 2008 (Vic). Mr Lebessis was ordered not to commit 'family violence' (as that term is defined in s 5 of the Family Violence Protection Act) against the protected persons listed in the order. Three persons were named as 'Affected Family Members', including Ms F Fakos, who, it appears from documents that were later filed in the Magistrates' Court, is Mr Lebessis' wife. The order was to expire at midnight on 16 April 2013.
6 The Court also ordered that 'any firearms authority held by the respondent (Mr Lebessis) is cancelled'. That part of the order was described as the firearms condition.
7 As a consequence of the order made on 16 April 2012, Mr Lebessis became 'a prohibited person' under paragraph (c)(ia) of the definition of that term in s 3(1) of the Firearms Act 1996. That meant that he could not possess, carry or use a firearm. Section 5 of the Act creates the offence of a prohibited person possessing, carrying or using a firearm.[3]
8 On 7 December 2012, upon the application by Ms Fakos, which was dated 21 June 2012, the Magistrates' Court at Heidelberg ordered the revocation of the 16 April 2012 order. There was no transcript of that hearing.[4] Ms Fakos' application form was headed 'Application to Extend, Vary or Revoke an Intervention Order'. In the form, Ms Fakos gave as her reasons for the application:
My husband is not a threat or ever has been. This has been a misunderstanding. It was a simple issue between ourselves and certain family members got involved and influenced me. He is innocent.
9 On the form, Ms Fakos stated the described change of circumstances:
There is no danger to myself or any other person.
The argument was a misunderstanding.
10 The order of 7 December 2012, which revoked the intervention order, stated:
This Order revokes the order made by the Heidelberg Magistrates' Court on 16/4/2012.
12 It appears that the references to 'ASH order' and 'FIR2 order' were references to the family violence intervention order with the firearms condition.
13 On 30 April 2013, Mr Lebessis made an application pursuant to s 189 of the Firearms Act 1996 in the Magistrates' Court for a declaration that he be deemed not to be a 'prohibited person' for the purposes of that Act. He ticked a box on the form indicating that he was subject to a final intervention order.
14 On the application form, Mr Lebessis explained that he wanted to be deemed a non-prohibited person:
To allow me to resume my recreational activities (hunting/sport target shooting) with my children.
15 Mr Lebessis was required to give notice of the application to the registrar of the Court, the Chief Commissioner of Police and persons protected by the final intervention order.[5]
16 Mr Lebessis' application was heard by a Magistrate sitting at Heidelberg on 11 June 2013. As I have stated, the application was not opposed by the Police representative. The Magistrate granted the application that day and made the declaration that Mr Lebessis sought ordering that he be deemed not to be a prohibited person pursuant to s 189 of the Firearms Act 1996 (Vic). The Magistrate also ordered that the Chief Commissioner of Police pay Mr Lebessis' costs of $750.00, such order to be stayed for three months.
17 Despite Mr Lebessis' application not being opposed, Constable Stephensen now appeals against the orders that the Magistrates' Court made on 11 June 2013.[6] He seeks to have those orders set aside and an order made that the application be dismissed. He argues that the Magistrate lacked jurisdiction to make the declaration because Mr Lebessis remained a prohibited person, as not more than five years had expired since he was subject to a final family violence intervention order including a firearms condition.
18 The fact that the Police representative did not oppose Mr Lebessis' application does not, in the circumstances of this case, prevent the appeal being brought. Although the appeal only lies on a question of law, jurisdiction cannot be conferred by consent of the parties[7] and the purported exercise of jurisdiction which did not exist involves an error of law.
19 The hearing before the Magistrate was short and the transcript occupies a page and a quarter. Constable Stephensen's representative stated that the application was not opposed and, according to the draft transcript, said:
The intervention order was revoked and the charges have been withdrawn and the protected person has been interviewed and has no objections.
20 The Magistrate asked whether a formal order was needed if the order had been revoked and asked what power the police had to require a formal order.
21 The solicitor appearing for Mr Lebessis replied:
Because once the application is withdrawn or revoked then there is no need to come here but then the Sergeant in charge of firearms actually wouldn't grant it and asked for a formal order.
22 The Magistrate asked the representative for Constable Stephensen (Police) what was the basis of the opposition that was originally held and the advocate replied:
POLICE: It was originally police were concerned for the applicants wellbeing so they requested something from the doctor saying that he is fit and we have got that but the Firearms registry have obviously
HIS HONOUR: No, but what's the basis of opposing it if the person becomes a nonprohibited person by revocation of the order? There is no basis under the Act.
POLICE: It's not opposed today your Honour.
HIS HONOUR: No, no, no, no, no you are missing the point. What are your costs for today?
LAWYER FOR MR LEBESSIS: $750 your Honour.
HIS HONOUR: Thank you, I'll make an order for costs as well. If there is a basis for it you can oppose costs but you don't invoke rules that aren't there. I'll make an order of costs for $750, stay of 3 months against the Chief Commissioner of Police.
LAWYER FOR MR LEBESSIS: As your Honour pleases.
HIS HONOUR: And the person who is playing God can explain to the Chief Commissioner why he had to fork out $750.
23 As I later explain, this exchange revealed a misunderstanding of the Magistrate's function. The Court had to decide whether to make a declaration under s 189 of the Firearms Act 1996 and the Police had every right to appear, even if only to inform the Court that they did not oppose the application. Police officers are entitled to apply for family violence intervention orders[8] and are entitled to appear when declarations are sought that a person is deemed not to be a prohibited person. The making of declarations under s 189 of the Firearms Act 1996 is an important step in the regulation of the use of firearms.
24 The Magistrate was in error in assuming that Mr Lebessis' entitlement to obtain a declaration under s 189 of the Firearms Act 1996 had, in effect, already been determined by the revocation of the final family violence intervention order on 7 December 2012. The Magistrate, in fact, was required to consider, separately, whether a declaration under s 189 of the Firearms Act 1996 should be made, including whether Mr Lebessis was a person who could apply for a declaration.
25 The question of law identified in Constable Stephensen's notice of appeal is:
(1) Whether the learned Magistrate made a jurisdictional error in making the order sought in circumstances where those orders were beyond the jurisdiction, power or function of the Magistrates' Court.
26 The grounds of appeal attached to that question of law were:
(1) Having regard to the fact that:
(a) the jurisdiction, power or function of the Court under s 189 of the Firearms Act 1996 (Vic) does not extend to making an order in respect of a person who is a "prohibited person" referred to in paragraph (c)(ia) of the definition of that term in s 3(1) of the Firearms Act 1996 (Vic); and
(b) there was no other source of the jurisdiction, power or function of the Court relied on by the Court;
the learned Magistrate had no jurisdiction, power or function to make the order sought, and thereby erred in so doing.
27 The following are the key provisions of the Family Violence Protection Act 2008 (Vic) for the purposes of this application. Section 1 states:
The purpose of this Act is to -
(a) maximise safety for children and adults who have experienced family violence;
(b) prevent and reduce family violence to the greatest extent possible; and
(c) promote the accountability of perpetrators of family violence for their actions.
28 Section 74 of the Family Violence Protection Act 2008 provides for the making of final family violence intervention orders. That term is defined in s 11.
29 Section 95 of the Family Violence Protection Act 2008 empowers the Court to include a condition in a final order cancelling the respondent's firearms authority or weapons approval or revoking the application of the weapons exemption to the respondent.
30 A right of appeal to the County Court against the inclusion of a firearms condition is given by ss 114 and 115 of the Family Violence Protection Act 2008.
31 Section 100 provides that the Magistrates' Court may vary or revoke a family violence intervention order.
32 That revocation of the final family violence intervention order took effect not ab initio, but from 7 December 2012. This follows from the plain meaning of the word 'revoke', the definition of which includes: 'annul, repeal, rescind ... cancel'.[9]
33 Section 171 of the Family Violence Protection Act 2008 states:
Relationship with Firearms Act 1996 and Control of Weapons Act 1990
To remove doubt, it is declared that if the court decides to include in a family violence intervention order a condition under section 95(a) or (b) -
(a) no appeal lies against the decision under the Firearms Act 1996 or the Control of Weapons Act 1990; and
(b) the respondent may not apply under section 189 of the Firearms Act 1996 for a declaration that the person is deemed not to be a prohibited person for that Act.
34 The purposes of the Firearms Act 1996 (Vic) include to give effect to the principle that the possession, carriage, use, acquisition and disposal of firearms are conditional on the need to ensure public safety and peace by a licensing or regulation system. The Act establishes a system of licensing and regulating possession, carriage and use of firearms.[10]
35 Section 189 of the Firearms Act 1996 provides in relevant respects:
(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.
(1AA) A person who is a prohibited person referred to in paragraph (c)(ib) 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 an order of a kind referred to in that paragraph; or
(b) is so deemed for limited purposes only.
(1A) A person to whom paragraph (d) of the definition of prohibited person applies may apply to the Court for a declaration that the person -
(a) is deemed not to be a prohibited person; or
(b) is so deemed for limited purposes only.
(2) The purposes for which the person is deemed not to be a prohibited person must be specified in the order.
...
(4) In the case of an application under subsection (1), the Court cannot hear the application until any appeal under the Family Violence Protection Act 2008 in relation to the final order has been determined.
36 The term 'prohibited person' is defined in s 3 of the Firearms Act 1996 as follows:
(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; or
(ia) a final order under the Family Violence Protection Act 2008 that does 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;
...
or, in relation to a person, not more than 5 years have expired since the person was subject to such an order...
(d) a person, in relation to whom, not more than 12 months have expired since that person was found guilty by a court, whether in Victoria or in another State or a Territory, of -
(i) an offence against this Act, in relation to which it was open to the court to impose a term of imprisonment; or
(ii) an offence against any other Act involving the possession or use of firearms and in relation to which it was open to the court to impose a term of imprisonment; or
(iii) an indictable offence -
and who is not, by virtue of the operation of any other paragraph of this definition, a prohibited person; ...
37 The operative provisions of the Firearms Act 1996, including s 189, were inserted by ss 245 and 248(1) of the Family Violence Protection Act 2008. The provisions specifically created two categories of prohibited persons. The two statutes are intended to operate in harmony with each other to give effect to the legislative scheme concerning the regulation of the use of firearms.[11]
38 The Explanatory Memorandum for the Family Violence Protection Act 2008 stated in relation to the purpose of s 189 of the Firearms Act 1996:
Clause 248 substitutes section 189(1) of the Firearms Act 1996. The clause enables a person who is deemed to be a prohibited person, due to the fact that they are subject to an intervention order under the Bill, to apply to a court for a declaration that they are deemed -
However, such a person must not apply for a declaration if the intervention order revoked any licence, permit or other authority to possess, carry or use firearms. The clause also inserts section 189(4) into the Firearms Act 1996. This clause provides that an application under section 189(1) may not be made until any appeal under the Bill has been determined.
39 In the second reading speech for the Family Violence Protection Act 2008, the Attorney-General stated:
To clarify the existing law, the bill amends the definition of "prohibited person" in the Firearms Act to create two categories of "prohibited person" by virtue of the making of an intervention order.[12]
40 Constable Stephensen, the appellant, contends that the Magistrate made a jurisdictional error in making the declaration of 11 June 2013 because Mr Lebessis was not one of the classes of 'prohibited person[s]' described in the definition of that term in s 3(1) of the Firearms Act 1996, who could apply for a declaration. He was not a (c)(i) person, but a (c)(ia) person and therefore had to wait for the expiration of five years from the time when he was subject to a final intervention order until he could apply for a declaration that he be deemed not to be a prohibited person. This requirement existed by reason of the concluding words of the definition of 'prohibited person' which are:
or, in relation to a person, not more than 5 years have expired since the person was subject to such an order.
41 The revocation of the final family violence intervention order did not mean that it could be treated as never having existed.
42 After reserving judgment, I invited further submissions from both parties as to the effect of the revocation of the final family violence intervention order containing a firearms condition. For the purpose of identifying the issue on which I invited further submissions, I directed the parties' attention to the 'Explanation of Final Order Form', contained in the Family Violence Protection Regulations 2008 (Vic). In particular, I referred to the statements in that Form concerning the effect of the inclusion of a firearms condition. I referred the parties to that Form, not because it could govern the interpretation of the legislation, but because its wording, particularly in paragraph 29, contained a succinct statement of an interpretation of the effect of the inclusion of a firearms condition in a family violence intervention order, which appeared to be contrary to the submissions advanced, at least initially, by the appellant.
43 I will set out four paragraphs of the 'Explanation of the Final Order Form':
44 I received further written submissions from the appellant, but not from Mr Lebessis. I then listed the appeal for further submissions, and at that hearing only the appellant was represented. The appellant maintained his earlier submissions and contended that paragraph 27 of the Form accurately stated the effect of the Firearms Act 1996, that is, that if the Court has included a firearms or weapons condition in a final order, the respondent could not make an application under the Firearms Act 1996 to be deemed not to be a prohibited person.
45 The appellant submitted that it was unnecessary for the Court to determine the accuracy of the statements in paragraphs 28 and 29 of the Form because Mr Lebessis was not a person in respect of whom the Court 'has varied the final order to remove a firearms or weapons condition'. He submitted that on 7 December 2012, Mr Lebessis sought, and the Court granted, an order revoking the final intervention order in its entirety, including the firearms condition. The Court had never varied the final order to remove a firearms or weapons condition, and Mr Lebessis had never been a prohibited person as defined in paragraph (c)(i) of the definition of that term in s 3(1) of the Firearms Act 1996. On 7 December 2012, the family violence intervention order and the firearms condition had been revoked as one, there was never a moment in time when Mr Lebessis was subject to a family violence order without a firearms condition and, therefore, he never was a person who could apply for a declaration under s 189 of the Firearms Act 1996. Consequently, Mr Lebessis remained a prohibited person under the Firearms Act 1996 until five years after 7 December 2012.
46 I consider that the plain meaning of the words[13] of s 189 of the Firearms Act 1996 leads to the conclusion for which the appellant contends.
47 The phrase at the conclusion of paragraph (c) of the definition of 'prohibited person' contained in s 3(1) of the Firearms Act 1996:
or, in relation to a person, not more than 5 years have expired since the person was subject to such an order;
applies to all of the parts of paragraph (c) of the definition of 'prohibited person' that is contained in s 3(1) of the Firearms Act 1996.[14]
48 Paragraph (c) of the definition of 'prohibited person' in s 3(1) of the Firearms Act 1996 creates two relevant categories of prohibited persons: those in paragraph (c)(i) and those in paragraph (c)(ia). Only those persons who come within paragraph (c)(i) can apply for a declaration under s 189. Mr Lebessis was never a prohibited person within the definition in paragraph (c)(i), he was a prohibited person within paragraph (c)(ia).
49 If a person falls within the second category of prohibited person, which is defined in paragraph (c)(ia), and no appeal is brought to the County Court against the intervention order with a firearms condition, then the five year prohibition applies.
50 The effect of the Family Violence Protection Act 2008 is that a person who is subject to an intervention order with a firearms condition is subject to an absolute prohibition from possessing firearms for five years from the time when they were last subject to that order.
51 They therefore are unable to apply for a declaration that they are no longer a prohibited person until five years have expired since they were subject to such an order.
52 That may be said to create a harsh conclusion in this case, but it reflects the significance that the Parliament has given to the inclusion of firearms conditions in final family violence intervention orders. That significance is unsurprising in a community where incidents of family violence involving firearms occur frequently. The policy question of whether a person, who is no longer subject to an intervention order which includes a firearms condition, should be able to possess firearms before five years have expired is for Parliament to decide.
53 The fact remains, that a person subject to a family violence intervention order including a firearms condition has, at some point, engaged in behaviour of sufficient concern to justify the making of that order. The fact that later events may establish that an application was made by mistake, as Ms Fakos states occurred with her application, cannot affect the ambit of the statutory effect of the order. The revocation of the intervention order does not mean that the effect of the firearms condition disappears.
54 The interpretation that I have adopted does not entirely remove the utility of an application to revoke an intervention order which includes a firearms condition. The revocation of the firearms condition still has some purpose. The earlier the person has a firearms condition removed, the earlier the five years prohibition commences to run, even if the intervention order without the firearms condition remains in force.
55 However, in this case, the revocation of the entire order, including the firearms condition, occurred simultaneously.
56 The appellant left open the possibility that, if a firearms condition was revoked, but the intervention order remained in force, it would then be appropriate to consider the person to be a prohibited person within the definition in paragraph (c)(i), who could seek a declaration under s 189 of the Firearms Act 1996. That interpretation would give a purpose to the removal of the firearms condition. It was stated from the bar table that that is the approach adopted in the Magistrates' Court.[15] I accept that that approach is supported by the correct interpretation of the legislation, because in those circumstances, the person restrained by the intervention order without the firearms condition comes within paragraph (c)(i) of the definition of 'prohibited person' which is contained in s 3(1) of the Firearms Act 1996. However, that process was not adopted in this case.
57 It is important that Courts follow the correct procedures in determining applications for intervention orders and their revocation, particularly when they include a firearms condition. In busy courts, Magistrates may be required to deal with many such applications on any given day, often with orders being sought by consent. But even when orders are sought by consent, the Magistrate is called on to exercise a discretion and to follow the correct procedures. It is important that Courts and the parties keep in mind, when final family violence intervention orders are made and when decisions are made about their revocation, that the inclusion of a firearms condition may prevent a declaration being made that the person be deemed not to be a prohibited person for five years from when the person was subject to it.
(a) subject to (b), a person, who has been subject to a final family violence intervention order including a firearms condition, cannot seek a declaration under s 189(1) of the Firearms Act 1996 that he or she be deemed not to be a prohibited person prior to five years having expired since he or she was subject to such an order;
(b) if a person who has been subject to a family violence intervention order including a firearms condition, has that firearms condition revoked and thereafter remains subject to the intervention order without a firearms condition, then he or she falls within paragraph (c)(i) of the definition of 'prohibited person' contained in s 3(1) of the Firearms Act 1996 and can apply for a declaration under s 189 of the Firearms Act 1996 that he or she be deemed not to be a prohibited person.
59 My conclusions are limited to circumstances in which a person subject to a family violence intervention order is seeking a declaration under s 189(1) of the Firearms Act 1996. My conclusions only extend to the categories of prohibited person described in paragraph (c)(i) and (c)(ia) of the definition of the term 'prohibited person' contained in s 3(1) of the Firearms Act 1996.
60 Finally, I note that the Magistrate erred in criticising the Police for their presence and role at the hearing on 11 June 2013 and in awarding costs against the Chief Commissioner. However, the Magistrate was called on to exercise a discretion. The Police had every right and responsibility to appear. The Police representative, of course, should have informed the Magistrate that Mr Lebessis could not obtain a declaration under s 189 of the Firearms Act 1996 (Vic).
61 Mr Lebessis was not entitled to obtain the declaration that the Magistrate made on 11 June 2013. It must be set aside. Mr Lebessis is not entitled to apply for a declaration under the Firearms Act 1996 (Vic) that he is deemed not to be a prohibited person until five years after 7 December 2012.
[1] Constable Stephensen also commenced judicial review proceedings under O 56 of the Supreme Court (General Civil Procedure) Rules 2005, however his application for judicial review was not pressed.
[2] Affidavit of Tristan James Moseby sworn 1 May 2014, paragraph 9.
[3] Firearms Act 1996 (Vic) s 5.
[4] The application form was exhibited to an affidavit that was filed pursuant to leave granted after I had reserved judgment.
[5] Firearms Act 1996 (Vic), s 189(2A).
[6] The appeal is brought under s 109 of the Magistrates Court Act 1989 (Vic). The Appellant was granted leave to appeal out of time by Associate Justice Mukhtar on 13 August 2013.
[7] Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, 163.
[9] Oxford English Dictionary Online (OUP, September 2014) (third meaning).
[11] See eg Commissioner of Taxation v Macquarie Bank Limited [2013] FCAFC 13; (2013) 210 FCR 164 [26]; Commissioner of Police v Eaton [2013] HCA 2; (2013) 294 ALR 608 [97]-[100].
[12] Hansard, Legislative Assembly, 26 June 2008, 2647-2648 (Mr Hulls).
[13] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47].
[14] D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths 7th ed 2011), 374.
Stephensen
Lebessis [2014] VSC 498
(1981) 148 CLR 150
(2013) 210 FCR 164
(2013) 294 ALR 608
(2009) 239 CLR 27