Welsh v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2023-07-13

Background

On 17 July 2019, Michael John Welsh (the Applicant) lodged an application for a category AB firearms licence for the genuine reason of Sport/Target Shooting and Recreational Hunting/Vermin Control (the Application).
The Commissioner of Police, NSW Police Force (the Respondent) refused the Application by way of Notice of Refusal dated 13 June 2020 (the Decision). The Decision included reasons for the refusal.
On 28 January 2023, the Applicant's solicitor emailed the Respondent to advise that the Applicant had not been served with the Decision until 13 January 2023 and that the Applicant was still within time to seek an internal review of the Decision. The Applicant's solicitor sought an extension until 28 February 2023 to obtain more detailed instructions and prepare his client's submissions.
On 7 February 2023, the Respondent advised the Applicant's solicitor by email that the application for internal review was outside of the statutory time frame set out in s 53(2)(d) of the Administrative Decisions Review Act 1997 (ADR Act) and denied the request.
On 10 February 2023, the Applicant applied to the Tribunal seeking administrative review of the Decision (the application). In the application form, a tick was placed next to the box indicating that the Applicant had made an application for internal review or objection and the agency had not responded within the time allowed (deemed refusal). A box was also ticked to indicate that the application was lodged within the time allowed under the relevant legislation.

Documentary evidence

The application in relation to jurisdiction and any extension of time to bring the application was heard on 13 July 2023. The application form attached a copy of the Decision and the email correspondence between the Applicant's solicitor and the Respondent on 28 January 2023 and 7 February 2023 in relation to the internal review. The Applicant relied on his undated affidavit (exhibit A1) that attached a number of emails with the Respondent during the period from 12 December 2019 to 13 January 2023.
The Respondent relied on a number of documents attached to the Respondent's submissions dated 4 April 2023, namely; the Decision; an extract from the Respondent's document management system; together with the same email correspondence between the Applicant and the Respondent relied upon by the Applicant (exhibit R1). The Respondent also relied on an image extracted from Google Maps (Exhibit R2) and a copy of the Application (exhibit R3).
It was not in dispute that the Applicant provided details of his residential address in the Application. In these reasons, and to protect the Applicant's privacy, I will refer to the residential address provided by the Applicant by reference to the house number only (Number 15). The Applicant also stated in the Application that he had a NSW driver licence and provided the licence number. In response to the question in the Application, "Is your postal address the same as your residential address?", the Applicant stated "No" and provided details of his Post Office Box (PO Box). In response to the question in the Application "Is your safe storage address the same as your residential address", the Applicant stated "Yes".
The email correspondence between the Applicant and the Respondent during the period December 2019 to January 2023 (part exhibit A1 and part exhibit R1) can be summarised as follows: 1. On 12 December 2019, the Applicant emailed the Respondent stating: …Could you please update me on the progress of my fire arms application? Does this process normally take this long?... 1. On 16 January 2020, the Applicant emailed the Respondent stating: It has now been another month since my last communication to you. Could you please send me an update on how my Firearms Application is going? 1. On 19 February 2020, the Applicant stated that he had completed an online information enquiry form and that : I applied for a firearms licence 17/7/19 and have not heard back from anyone. Please advise when I might be receiving my licence. 1. On 6 March 2020, the Respondent sent an email seeking further details from the Applicant in order to verify his identify and respond to his query. The Applicant replied on the same date and provided the requested details. In providing his residential address he provided the street name, suburb and postcode, together with the name of his house. No house number was provided. 2. On 31 March 2020, the Respondent sent an email that included the following, as well as a link to view his status report in relation to the Application: Our records indicate that your application is still currently with our adjudication team. Due to high volumes of applications being received processing times are longer than usual. Please use the Public Register on the Firearms Registry website to check the status of your firearms licence or Permit to Acquire. Click on "Check your Licence, Permit or Permit to Acquire" from our Home Page or use the following link [link included]. Enter your Firearms Licence number, click the 'I'm not a Robot' box and follow the instructions on screen, then press Search to view your status report. 1. On 26 May 2020, the Applicant sent an email to the Respondent asking if there was any news on his firearms licence. 2. On 11 January 2023, the Applicant sent an email asking for assistance in obtaining his firearms licence. The email included the following: I applied 17/7/2019 and have been chasing it up since. I have not been contacted at all. 1. On 12 January 2023, the Respondent sent an email seeking further details from the Applicant in order to verify his identify and respond to his query. The Applicant replied on the same date and provided the requested details, including that: My residential address is [Number 15]. 1. On 13 January 2023, the Respondent sent an email stating: Please see attached refusal that was sent to you on 13 June 2020.
In his undated affidavit (exhibit A1), the Applicant stated that he did not receive any letter from the Respondent "at either my home address at [Number 15] nor at [PO Box] - in relation to my Firearms Licence Application". He stated that he had not seen or received a copy of the Decision before 13 January 2023. He also stated that the address at the top left of the Decision, namely Number 15, was not his postal address in 2020 but rather his "residential address". He stated that at that time, his postal address was his PO Box.

Oral evidence

The Applicant gave evidence at the hearing. He was asked by Mr Lowe if there were any corrections to his affidavit, and he indicated that his place of residence in paragraph 3 should have the house number "50" instead of "15". The street name and suburb were said to be the same. The Applicant gave evidence that he had resided at that address (Number 50) for some 40 years but that it was not a "good address", and the property does not have a mail box. He said that he had had a PO Box for more than 40 years, and possibly 50 years, and that between March and June 2020 he received his mail by going to his PO Box every day.
In cross-examination by Mr Zoppo, the Applicant stated that he used to own Number 15. He said the property was 20 acres and he subdivided it, with his factory at the front. He said that he never lived there but he used to work seven days back then, and there were a couple of beds in there. He said that anyone who wanted to see him, "went to Number 15". He said that he sold Number 15 in 2012 and moved out of there to another factory.
The Applicant was shown the Google Maps picture of Number 15 (exhibit R2) and agreed that the photo accurately described the location. The picture showed a street view of the property at Number 15 that displayed a large sign with the number 15, a business name and the words "EXPRESS CATERING EQUIPMENT". Another sign on the fence to the property contained the words "COLLECTION DEPOT". The Applicant agreed that his driver licence still had his address as Number 15 and that he had not changed it. He agreed that the residential address in his Application was Number 15. When asked if he had typed the Application himself, he said that his secretary "does all that work" as he is not computer literate.
The Applicant agreed that he had told police that he was living at Number 15 and that his Application was submitted on 17 July 2019. Mr Zoppo asked the Applicant why, seven years after having left Number 15, he told Police that he was still living there and the Applicant responded, "I really don't know." He denied trying to deceive police,
The Applicant agreed that he had answered "Yes" to the question "Is your safe storage address the same as your residential address?" When asked if he had read through the Application and checked the declaration, he stated that his "girl' would have brought it to him. He was asked if he had confirmed that all statements noted in the declaration were true and correct, and he responded, "I would have."
The Applicant gave evidence that his house at Number 50 was also referred to by a house name, and this was what was referred to in the email with the Respondent. He said that until recently, there were no numbers and that his home was built in 1850 and was referred to by name. He said that now it is referred to as Number 50. The Applicant was asked about why he referred to his residential address as being Number 15 in the email to the Respondent dated 12 January 2023, and he said that he "honestly" did not know and thought perhaps his secretary was trying to keep it the same as the Application. He said that his secretary knows where he lives and that she knows about Number 15 as she used to work there, and she also knows that he had not owned Number 15 since 2012.
The Applicant agreed that the reference to Number 15 appeared on his Application and on documents completed by his solicitor. The Applicant agreed that there has been an error in the documents.
The Applicant was then taken through the emails attached to his affidavit. In relation to the email sent on 31 March 2020 with instructions on how to use the Public Register, Mr Zoppo asked if he had used the link and the Applicant replied that his secretary "may have". He said that he does not understand all that "new world tech". When asked if there was any reason that he did not follow up in relation to his licence between 28 May 2020 and 11 January 2023, he said that he was "busy" and also that he thought the Firearms Registry was "dicking" him around. The Applicant acknowledged that it was too slow and that his secretary had not followed up. The Applicant denied having received the Decision and stated that if his secretary had accessed the Public Register website, she had never told him that the Application had been refused. He said that he had believed that he would get his firearms licence back.
In re-examination, the Applicant confirmed that he had the same secretary for 35 years plus and stated that she is computer literate and that he directs her work on the computer. He said that when he reviews a document, he makes notes that he gives to her or sometimes he calls her in. The Applicant stated that he had never sent an email and does not have a computer on his desk. In relation to why Number 15 was referred to in the Application, the Applicant said that his driver licence showed Number 15, that he should have had it changed and that it was "neglect" on his part. He said that he been "slow" and that he will get it changed.
The Applicant's evidence was that his current driver licence will expire in November 2024 and that he had renewed it in 2014 and 2019. He acknowledged that he had renewed the licence since he had sold Number 15. The Applicant said that he had instructed the emails to be sent to the Respondent and that he is responsible for the references to Number 15.

Applicant's submissions

The Applicant relied on an Outline of Submissions for the Applicant headed "Jurisdiction to Determine the Application" filed with the Tribunal on 23 March 2023. In relation to the issue of jurisdiction, it was submitted that no issue was taken that a decision to refuse a firearms licence falls plainly within the category to which an administrative appeal would usually be available. A pre-condition for the Tribunal hearing an administrative review matter, generally, is that an application for internal review has been made and has been either refused or deemed refused, and it must have been made (subject to some exceptions including discretionary exceptions) within 28 days of the applicant being 'provided' a statement of the reasons for the refusal to grant a firearms licence in accordance with s 53(2)(d) of the ADR Act.
It was submitted that the meaning of 'provide' in this context incorporates the receipt of something from another and that in the context of the ADR Act, unless the Tribunal can be satisfied that a person in fact received a statement of reasons, then it cannot be satisfied that it was provided (Applicant's emphasis added). It was submitted that in the current matter, the Applicant received the decision on 13 January 2023 and that the application for internal review was made within the relevant statutory period.
It was further submitted that if the Tribunal was against these submissions, the Tribunal has a broad discretion under s 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), to extend relevant time periods to find jurisdiction, ostensibly in order to achieve the stated objectives of 'just, quick and cheap resolution' of the issues in proceedings. Further, the Applicant would rely on the broad discretionary powers under s 55(5)(a)-(c) of the ADR Act, to find jurisdiction in the event that the application for internal review was found to have been late.
In oral submissions, Mr Lowe referred to a number of matters outlined in the written submissions. In addition, he submitted that the Applicant had been disorganised rather than dishonest in relation to his address details and referred to there being no letter box at Number 50 and to the Decision having never been sent to that address. It was submitted that there is a positive duty on the administrator to notify the Applicant of the outcome of the Application and that it was plainly the case the Applicant was telling the truth and that he had not received the Decision. It was noted that whilst there was an option for the Applicant to re-apply for a firearms licence, he had chosen to make an application for internal review.
It was submitted that the internal review application was filed within time as the Applicant did not receive the Decision until it was sent to him by email on 13 January 2023. The Applicant had provided the correct details of his PO Box and no correspondence had been sent there. Mr Lowe submitted that the postal acceptance rule applied and that there was no evidence, such as a date stamp, to indicate when the Decision was sent. Even if the Decision was sent to Number 15, this had no bearing on whether jurisdiction is established.

Respondent's submissions

The Respondent relied on the written submissions "in response to the Applicant's submissions on jurisdiction and application for an extension of time" filed with the Tribunal on 4 April 2023. It was submitted that the Tribunal does not have jurisdiction to review the Decision in circumstances where the Applicant has failed to seek an internal review of the Decision within the statutory time frame. It was also submitted that the Tribunal should decline to exercise its discretion to extend the period for making of the internal review application under s 41 of the NCAT Act and s 55(5) of the ADR Act.
In oral submissions, Mr Zoppo referred to the written submissions and stated that the application for internal review was 921 days late. He further submitted that until the day of the hearing, the Applicant's address was understood to be Number 15 and that in evidence, the Applicant told the Tribunal that his driver licence had that address, even though he had sold Number 15 in 2012. Mr Zoppo submitted that the Tribunal may have difficulty in accepting what the Applicant said but, in any event, the primary focus was on whether the Applicant had duly applied for an internal review, and this had not occurred.
It was submitted that the extract from the Respondent's document management system was a business record and was evidence that the Decision was sent to Number 15 on 13 June 2020. Mr Zoppo referred to the large gap in the emails and the fact that the Applicant had made no enquiries with the Respondent for some two years and that he had been provided with the website details for the portal.

Applicable legislation

Section 75(1)(a) of the Firearms Act 1996 (the Act) confers jurisdiction on the Tribunal for administrative review of the Respondent's decision pursuant to s 9 of the ADR Act.
Section 55 of the ADR Act relevantly provides as follows: 55 Making of applications (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. … (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).
Section 53(2)(d) of the ADR Act requires that an application for internal review is: (d) to be lodged at the office (or an office) of the administrator within 28 days (or such later date as the administrator may allow) after the person: (i) if the person has requested reasons under section 49 - was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or (ii) if the person has not requested reasons under section 49 - was notified of the making of the administratively reviewable decision, …

Request for internal review

It was not in dispute that the Decision to refuse the Application is an administratively reviewable decision and that the Applicant is an interested person in respect of the Decision, and I accept this to be the case. The issue that is in dispute is whether or not the Applicant lodged his application for internal review within the time frame set out in s 53(2)(d) of the ADR Act.
It was submitted on behalf of the Applicant that he was not provided with the Decision until 13 January 2023 and that an application for internal review was made within 15 days, namely on 28 January 2023 and accordingly, was not out of time. Upon refusal of the internal review, the application was filed with the Tribunal the following day.
The Respondent contended that the Decision was made on 13 June 2020 and was posted on that day to the Applicant's residential address as set out in the Application. It was submitted that in accordance with s 76 of the Interpretation Act 1987, the Applicant was taken to have received the Decision on 23 June 2020, being seven business days after 13 June 2020. Pursuant to s 53(2)(d) of the ADR Act, it was submitted that the Applicant had 28 days from that date to make an application for internal review, namely by 21 July 2020 and accordingly his application on 28 January 2023 was out of time.

Consideration

Section 48(1) of the ADR Act provides that an administrator who makes an administratively reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the decision and the right of the person to have the decision reviewed. It was not disputed that the Decision is a written document setting out the Respondent's decision to refuse the Application and that it contains details in relation to the Applicant's rights to have the Decision reviewed and I accept that it does.
It was submitted on behalf of the Applicant that s 53(2)(d) of the ADR Act required him to make an application for internal review within 28 days of being "provided" with the statement of reasons. It was respectfully submitted that the Tribunal would be satisfied on the evidence that the Applicant was not "provided" with an outcome/statement of reasons before 13 January 2023.
Section 53(2)(d) of the ADR Act does not refer to the term "outcome" and does not require that an applicant must be provided with a statement of reasons prior to making an application for internal review. Relevantly, an application for internal review can be made within 28 days after the person was either provided with a statement of reasons under s 49 (if the person has requested them) or was notified of the making of the administratively reviewable decision (if the person has not requested reasons).
Under the first paragraph of the Decision, there is a heading, "Statement of reasons" that is said to be under s 49 of the ADR Act. It was not suggested by either party that the Applicant had at any time made a written request for the reasons under s 49 of the ADR Act, and it is clear that the statement of reasons forms part of the Decision. Accordingly, in circumstances where the Applicant did not request reasons under s 49 and where the Decision incorporated the reasons, I do not accept the submissions on behalf of the Applicant that he was required to be "provided" with a statement of reasons prior to applying for an internal review. I find that s 53(2)(d)(ii) of the ADR Act requires the Applicant to have lodged an application for internal review within 28 days after he was "notified" of the making of the Decision.
It was submitted that the Applicant did not accept that the evidence established that the Decision was sent to him on 13 June 2020. The Respondent relied on the extract from the Respondent's document management system and submitted that it was a business record under the Evidence Act 1995. The extract stated as follows: Update on: 27/07/2020 09:29:58 by [blanked out] #F/enq 26/05/20 - Lic app status update. Licence refused, letter sent 13/06/20. NFA".
Having regard to the extract, I am satisfied that the extract amounts to a business record for the purposes of s 69 of the Evidence Act. Under s 39 of the NCAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself of any matter in such matter as it thinks fit, subject to the rules of natural justice.
Even if the extract was found not to fall within s 69 of the Evidence Act, I accept the Applicant's evidence before the Tribunal that whilst he was not computer literate, he directed his secretary to send emails to the Respondent in relation to the Application and that an email was sent at the direction of the Applicant to the Respondent on 26 May 2020 asking if there was any news on his firearms licence. I take "#F/Enq" in the extract above to refer to a firearms enquiry on 26 May 2020 in relation to a licence application status update. The date of the Applicant's email accords with the date in the extract above and it is apparent from the evidence that he was seeking an update from the Respondent on his Application. The Decision was addressed to the Applicant at Number 15 and was headed Notice of Refusal and dated 13 June 2020. I am satisfied having regard to the Decision, and the reference in the extract to "letter sent 13/06/20", that the Decision was sent on 13 June 2020 to the Applicant at Number 15.
Whilst there is no further evidence as to how the Decision was sent, the common or ordinary meaning of the term "send" as defined in the Macquarie Dictionary (online edition) includes "to cause to be conveyed or transmitted to a destination: to send a letter". Accordingly, I am satisfied that the Respondent sent the Decision on 13 June 2020.
Section 76(1) of the Interpretation Act provides as follows: 76 Service by post (1) If an Act or instrument authorises or requires any document to be served by post (whether the word "serve", "give" or "send" or any other word is used), service of the document - (a) may be effected by properly addressing, prepaying and posting a letter containing the document, and (b) in Australia or in an external Territory - is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the seventh working day after the letter was posted, and (c) in another place - is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post. (2) In this section - working day means a day that is not - (a) a Saturday or Sunday, or (b) a public holiday or a bank holiday in the place to which the letter was addressed.
It was accepted by both parties that s 76(1) of the Interpretation Act applied to the Decision. I find that the provision applies to the giving of notice of the Decision in accordance with section 48 of the ADR Act and that service of the Decision is taken to have been effected on the seventh working day after it was posted, unless evidence sufficient to raise doubt is adduced to the contrary.
Section 86 of the Act provides as follows: Service of notices Any notice or other instrument required or authorised by this Act or the regulations to be served on a person by post is sufficiently addressed if it is addressed to the last address of the person known to the Commissioner.
Section 86 does not distinguish between a postal address or a residential address. The provision does not require that the notice or other instrument that is being served on a person by post be addressed to a person's postal address. There is no evidence before the Tribunal that the Applicant notified the Respondent at any time between the submission of the Application and the date of the hearing that his residential address was Number 50. The residential address provided by the Applicant in the Application was Number 15, and as of 13 June 2020, was the last residential address known to the Respondent. The Decision was addressed to the Applicant at Number 15 and pursuant to s 86 of the Act, I find that it was "sufficiently addressed".
Section 76 of the Interpretation Act requires that the letter containing the document be properly addressed. As I have previously found, the Decision was addressed to the Applicant at Number 15, the residential address provided by the Applicant in his Application, and I find that it was properly addressed.
The issue for consideration is whether the Respondent has complied with the provisions of s 48 (1) of the ADR Act and has taken "such steps as are reasonable in the circumstances" to give notice in writing to the Applicant of the Decision and rights to have the Decision reviewed. As previously referred to, the Respondent sent the Decision to Number 15, the address provided by the Applicant in the Application. The Application contained a heading "Declaration" that included the following:

I understand that it is a serious offence under the [Act] to make a statement or provide information that I know is false or misleading and I certify that all the information contained in this application is true and correct in every detail.
I authorise the release of my personal information to any third party the [Respondent] deems appropriate and for the purposes of any relevant Authority verifying the details of this application.
I agree to the NSW Police Force undertaking any such enquiries as are necessary to establish that the information I have provided in relation to this application is true and correct.

Underneath the Declaration in the Application, a box had been ticked next to the statement "I confirm that all statements noted in the declaration are true and correct". In his evidence the Applicant acknowledged that he would have confirmed this. The Applicant also provided details of his NSW driver licence in the Application.
As referred to previously, the Applicant's evidence was that he had resided at Number 50 for some 40 years and that whilst he owned Number 15 for a number of years before selling the property in 2012, he had never lived there. The residential address provided by the Applicant in the Application was Number 15 and reference was also made to this being his residential address in the email to the Respondent on 12 January 2023 as well as in his undated affidavit before the Tribunal. It was only in his oral evidence before the Tribunal that the Applicant corrected the original reference to Number 15 to Number 50. The Applicant said that he did not know why the documents referred to Number 15.
The Applicant's evidence was that after selling Number 15, he had renewed his driver licence on two subsequent occasions in 2014 and in 2019, and that his residential address on his driver licence remained as Number 15 as of the date of the hearing. The Applicant's reason for not updating the address on his driver licence was "neglect".
Whilst no evidence was before the Tribunal as to whether the Respondent took steps to establish whether the residential address provided in the Application was true and correct, it is apparent that any check in relation to the Applicant's NSW driver licence would have found the same residential address for the Applicant as used in the Application, namely Number 15, even though the Applicant gave evidence that he had never lived at that address and had sold it in 2012.
The email correspondence between the Applicant and the Respondent (part exhibit A1 and part exhibit R1) contains an email from the Respondent to the Applicant dated 6 March 2020. Of note, the footer of the Respondent's Business Reception Team includes a banner containing the words "Update when you relocate", and in smaller font, the words, "It is a condition of your licence to notify us when you or your firearms move location". Underneath there appears to be a hyperlink and the words "Click here to update your details online". It is not suggested that the Applicant was the holder of a firearms licence between 2019 and the date of the hearing, and it is clear that he was not.
In Saxby v Commissioner of Police [2021] NSWCATAD 275 (Saxby), Senior Member Naida Isenberg made a number of observations in relation to the provision of false and misleading information in applications under the Act and said at [75]: 75. …one of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner…
I agree with these observations made by Senior Member Isenberg. I find that in all of the circumstances of this matter, it was reasonable for the Respondent to use the residential address that had been provided by the Applicant in his Application, namely Number 15, in order to give him notice of the Decision and his rights of review. There was no evidence before the Tribunal that the Decision was returned to the Respondent as undeliverable, and no evidence that the Applicant communicated in any way with the Respondent between 26 May 2020 and 11 January 2023 or indicated that he had not received any further information in relation to his Application.

Extension of time

In the event that the Tribunal found against the Applicant in relation to whether his request for internal review was within time, the Applicant sought an extension of the relevant time periods to find jurisdiction in this matter and relied upon s 41 of the NCAT Act and s 55(5) of the ADR Act.

Relevant legislation

Section 36(1) of the NCAT Act provides as follows: (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
Section 41 of the NCAT Act is as follows: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, 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. (2) Such an application may be made even though the relevant period of time has expired.
Section 55 of the ADR Act relevantly states: (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. (5) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (4) (a) applies - the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant. …

Section 55 of the ADR Act

It was not in dispute that s 55(4) of the ADR Act provides that the Tribunal may deal with the application in relation to the Decision even though the Applicant has not duly applied for an internal review to which he was entitled if the Tribunal is satisfied of the matters set out in subsections (a) and (b).
In determining whether the Applicant's late application for internal review was unreasonably refused by the Respondent or whether an application to the Tribunal was made within a reasonable time following the Decision, the Tribunal is to have regard to the matters set out in s 55(5) of the ADR Act. In respect of the time when the Applicant became aware of the making of the Decision, it is apparent that the Applicant was aware of the making of the Decision from at least 13 January 2023, the date that it was emailed to him.
The evidence before the Tribunal does not permit me to be satisfied that the Applicant was personally served with the Decision prior to 13 January 2023. However, as I have previously found, the Respondent took such steps, in accordance with s 48 of the ADR Act, as were reasonable in the circumstances to give the Applicant written notice of the Decision on 13 June 2020 by sending it to him at Number 15, the residential address provided by the Applicant in the Application and service was effected on 23 June 2020.
In his oral evidence, the Applicant accepted that he was responsible for the reference to Number 15 in his Application. In circumstances where he acknowledged that he had lived at Number 50 for 40 years; had never lived at Number 15; sold Number 15 in 2012; and had no connection to Number 15 after that time, I find that the Applicant knew as of the date of submission of the Application that Number 15 was not his residential address. In light of the email that he received from the Respondent dated 31 March 2020, the Applicant was aware that his Application was with the Respondent's adjudication team and that processing times were longer than usual. It follows that even though the Applicant had provided the Respondent with the correct details of his PO Box, he would have been aware of the possibility that any decision in relation to the Application could be sent to the residential address that he provided to the Respondent in his Application.
However, whilst the Applicant sent one further email to the Respondent on 26 May 2020, he failed to make any further enquiries of any kind with the Respondent about the Application until 11 January 2023, more than two and a half years later or to take any steps to check, or to direct his secretary to check, the status of his Application on the Public Register. Whilst I am not able to find that the Applicant was aware of the making of the Decision prior to 13 January 2023, I find that his provision of incorrect information to the Respondent and his failure to take any steps to follow up the Application for a period of two and a half years are both relevant matters in the exercise of the discretion under s 55(4) and s 55(5) of the ADR Act and I afford these matters significant weight. I also have regard to the 28 day period prescribed by s 53(2)(d)(ii) of the ADR Act for the Applicant to lodge his application for internal review and that his application for internal review was lodged some two and half years outside this period.
I have had regard to those factors set out in s 55(5) of the ADR Act, and to my previous findings as set out in these Reasons. In the circumstances, I am not satisfied that the delegate of the Respondent dealing with the Applicant's application for internal review unreasonably refused to consider the application for internal review or that the application to the Tribunal was made within a reasonable time following the Decision.
I have also had regard to the Applicant's ability to lodge a fresh application for a firearms licence under the Act in the event that the application is dismissed and accordingly, I am satisfied that it is not necessary for the Tribunal to deal with the application to protect his interests.

Section 41 of the NCAT Act

The Respondent accepts that the Tribunal has a discretion to extend the time for the making of the internal review application pursuant to section 41 of the NCAT Act and referred to the decisions in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) and CFZ v Department of Education [2015] NSWCATAD 231 (CFZ).
The discretion to grant an extension of time is unfettered but must be exercised judicially: Jackson. In CFZ, these principles were applied to an administrative review application and the Tribunal stated at [9] that in the context of an extension of time being brought in respect to the making of an administrative review application: Those principles, with appropriate adaption to the fact that here the Tribunal is dealing with an administrative review application, are equally applicable to CFZ's request for an extension of time in which to bring that application: see for example BKZ v The Children's Guardian [2014] NSWCATAD 23. In administrative review applications, there is a public interest component to the evaluation, in that the public interest in accepting a late application is a matter to be considered in the exercise of the discretion: see ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271 and Edwards v Department of Family and Community Services [2012] NSWADT 60. So too is timeliness or delay in the antecedent administrative processes: see Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212. Those matters are necessary adaptions to the consideration of an extension of time in the context of an administrative review.
In BKW v Department of Family and Community Services [2014] NSWCATAD 205, Principal Member Higgins considered the circumstances In which the Tribunal should exercise its discretion to extend time. She stated at [16] - [21]: 16 As can be seen from the terms of [section 41 of the NCAT Act], it gives the Tribunal a wide discretionary power to grant an extension of time in which to file and serve an application for external review of an administrative decision. 17 In Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [18] the Appeal Panel noted that the discretion in section 41 is to be exercised judicially and having regard to the guiding principles in section 36 of the NCAT Act (i.e. the need 'to facilitate the just, quick and cheap resolution of the real issue in the proceedings'). 18 That is, the grant of an extension of time is not automatic. 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. And for these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted. 19 In Jackson v Land and Housing Corporation at [22], the Appeal Panel set out the relevant considerations in deciding whether to grant an extension of time in which to lodge a Notice of Appeal. 20 These proceedings are administrative review proceedings (merits review proceedings) where role of the Tribunal is to determine the correct and preferable decision, at the time of the hearing, having regard to the applicable law and the relevant facts: see subsection 63(1) of the ADR Act. In determining an application for review the Tribunal can (affirm the decision, vary the decision or set it aside and make a decision in substitution thereof: see subsection 63(3) of the ADR Act. 21 While these proceedings differ to appeals, in my view, the principles set out in Jackson are also applicable with some modification. In summary, these can be described as follows: (a) the length of the delay; (b) the reason for delay; (c) the nature of the decision the subject of review and whether there is an arguable case that the decision the subject of review is not the correct and preferred decision and should be set aside or varied; and (d) prejudice to the respondent and any other interested person if strict compliance with the rules is applied. (see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 and [18] and following)
In considering an extension of time under s 41 of the NCAT Act, I take into account my previous findings including the Applicant's delay of two and a half years in lodging the application for internal review. The primary reason for the delay in lodging the application for internal review was that the Applicant provided a residential address in his Application that he knew was not correct and to which he had no connection, as he had sold it in 2012. I have found that the Respondent took such steps as were reasonable in the circumstances to give the Applicant written notice of the Decision at Number 15 and that the Applicant did not take any action to follow up the Application in the period from May 2020 to January 2023 or to check the status of the Application in the Public Register
The Respondent submitted that the Application has limited prospects of success if the application was heard, for the reasons set out in the Decision. However, the Respondent acknowledged that the Decision does not provide any real details as to the factors which the Respondent's delegate had regard to when considering s 11(7) of the Act and I accept this to be the case. I find that on the material before the Tribunal, it is not possible for me to be satisfied that the Applicant has established that he has a "fairly arguable" case that the Decision should be set aside or varied.
I have previously found, when considering the provisions of s 55 of the ADR Act, that in the event that this application is dismissed, the Applicant is able to lodge a fresh application for a firearms licence at any time. Accordingly, I find in these circumstances that there would be no prejudice to the rights of the Applicant if strict compliance with the statutory time frames is applied.
In relation to the public interest considerations, it is well established that in an application for review, the tribunal is not restricted to a consideration of the material that was before the decision maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. The Application was submitted on 17 July 2019, and a period of almost four years had elapsed prior to the Tribunal hearing on 13 July 2023 in relation to jurisdiction and the application to extend time.
Having regard to the incorrect information that is contained in the Application, including the Applicant's residential and safe storage address, together with the substantial period of time that has elapsed since the Decision was made, I am of the view that it would not be in the public interest to exercise the discretion to grant an extension of time in this matter. In reaching this view, I have taken into account the guiding principle for the NCAT Act and that the Applicant is able to submit a fresh application for a firearms licence which would allow him to provide up to date information to the Respondent for consideration.

Conclusion

Having regard to the various findings that I have made in this matter; I am satisfied that in accordance with the provisions of s 55(3) of the ADR Act that the application may not be made by the Applicant as he has not complied with the requirements relating to an internal review and accordingly that the Tribunal does not have jurisdiction in respect of the application.
For the reasons previously outlined, I am not satisfied of the matters referred to in either s 55(4)(a) or s 55(4)(b) of the ADR Act and accordingly, I decline to deal with the application in accordance with s 55(3) of that Act. For the reasons previously outlined, I also decline to exercise the discretion to extend the period of time for the Applicant to make an internal application under s 41 of the NCAT Act.
As a consequence of these findings, the application is misconceived and lacking in substance and should be dismissed pursuant to s 55(1)(b) of the NCAT Act and I have made the order accordingly.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 08 February 2024

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