William Alan Hull v Commissioner of Police

Relevant factual background and timeline

1. On 28 August 2020, the Commissioner issued a Notice of Refusal of Category A, B Firearms Licence to the Applicant (the "Decision"). A copy of that Decision was attached to the Applicant's NCAT Application. The Decision was made pursuant to Section 11(4)(a) of the Firearms Act, which prescribes that the Commissioner must not issue a licence to a person if the Commissioner has reasonable cause to believe that an applicant may not personally exercise continuous and responsible control over firearms because of an applicant's way of living or domestic circumstances; and Section 11(7) of the Firearms Act, which prescribes that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. The reasons cited in the Decision were concerns in relation to the applicant's "way of living and domestic circumstances" and the "risk that this places on public safety".
2. On 25 August 2020, the Respondent had issued a Notice of Refusal of Category H Firearms Licence to the Applicant's mother, Ms Megan Elizabeth Hull, and a Notice of Revocation of her Category A, B Licence. The Applicant's mother's application for administrative review by NCAT and related extension of time request is the subject of a separate but similar decision by this Tribunal.
3. In September 2020, the Applicant contacted Equilaw Solicitors as a matter of urgency and arranged an appointment with Joshua Whale, whom he instructed to prepare an application for internal review of the Decision.
4. On 22 September 2020, the Applicant, via his solicitor, lodged an application for internal review of the Decision ("Internal Review Application"), within the 28‑day time limit under section 53(2)(d) of the ADR Act. The Internal Review Application stated that the Applicant wishes to become more involved with his local gun clubs, along with his mother who is a presently a member. The Applicant submitted that there was "no reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms" and more than mere suspicion or conjecture must be the basis of "reasonable cause". The Applicant stated that if any element of his living arrangements caused significant concern, he would be willing to relocate the firearms to help eliminate any risk. The Applicant noted his mother owns a property where they spend a significant portion of their time and that this would be a possible location for safekeeping. Alternatively, the safe storage at Elk's gun shop could be utilised. He also submitted there was no reasonable cause to believe that the Applicant holding a licence was contrary to public interest.
5. Upon filing the Internal Review Application via email, the solicitor received an automatic response from the NSW Firearms Registry confirming receipt and advising that: there may be a delay in finalising your case. You will be immediately advised in writing when a decision has been made, following completion of the review. Please note that the decision being reviewed is still currently in effect. If you have not been notified of the outcome of the internal review within 21 days, the internal review is taken to be finalised under section 53(9)(b) of the Administrative Decisions Review Act 1997 and if you have the right to seek a review of the decision by the NSW Civil and Administrative Tribunal, you may then proceed to make an application to the Tribunal if you wish. The Firearms Registry will continue to process your internal review request, even though it's taken to be finalised, until you make an application to the Tribunal.
6. At the 21-day point (i.e., 13 October 2020), the Applicant had not been notified of an outcome in his matter and he contacted his solicitor to seek advice for the next step. The Applicant's solicitor "misinterpreted the relevant sections and advised the Applicant that he could apply to appeal the decision in NCAT from any time the matter was taken to be finalised or within 28 days of receipt of the outcome under s23(3)(b) Civil Administrative Tribunal Rules 2014." The Applicant instructed the solicitor that he wished to wait for the internal review.
7. On 15 December 2020, the Applicant's solicitor sought an update from the NSW Firearms Registry about when an outcome could be expected. The Firearms Registry replied via email the same day to advise that the internal review applications for the Applicant (and his mother) remained in the queue and the reviews would be conducted when they reach first place. The Registry stated it was impossible to determine when that would occur as every requested involves completely different complexities. The Registry's email then stated: As previously noted, you will be immediately advised in writing when a decision has been made, following completion of the reviews. You were further advised that if you have not been notified of the outcome of the internal reviews within 21 days, the internal review is taken to be finalised under section 53(9)(b) of the Administrative Decisions Review Act 1997 and if your clients have the right to seek a review of the decision by the NSW Civil and Administrative Tribunal, they may then proceed to make an application to the Tribunal if they wish. The Firearms Registry will continue to process your internal review requests, even though they are taken to be finalised, unless your clients make an application to the Tribunal.
8. In September of 2021, the Applicant "exercised frustration with the lack of progress and wished to commence proceedings by filing an Application to NCAT". The Applicant's mother had purchased a farming property which meant that the revocation of his licence was causing him distress in conjunction with the lack of clarity as to when he could expect a resolution. At that point, the Applicant's solicitor prepared the NCAT Application. When he filed the NCAT Application on 16 September 2021, he erroneously ticked the box stating that the matter was made in time, "due to ignorance of when the time limitation began".
9. On 14 October 2021, the Respondent's solicitor notified the Applicant's solicitor that there was an issue with the timeliness of the application. The Applicant's solicitor states that this was the first time he had questioned the time limit and upon further review of the case law and legislation, he formed the view that the Respondent's solicitor was correct.
10. The parties then agreed on a timetable for submissions in relation to the extension of time application, which was formalised at the directions hearing before the Tribunal on 19 October 2021.
11. As at this time, as far as the Tribunal is aware, the Firearms Registry has not determined the internal review.

The time limit for filing the application under the relevant legislation

1. It is common ground that the Decision was made on 25 August 2020 and that the Applicant filed timely for internal review of the Decision on 22 September 2020, within the 28-day time limit set by section 53(2)(d) of the ADR Act.
2. Section 53(9) of the ADR Act, provides: (9) When an internal review is finalised An internal review is taken to be finalised if: (a) the applicant is notified of the outcome of the review under subsection (6), or (b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).
3. It is common ground that, in accordance with section 53(9)(b) of the ADR Act, and in the absence of any outcome of the review having been notified to the Applicant, the internal review was taken to have been finalised after twenty-one (21) days of it being lodged, that is on 13 October 2020.
4. Section 75(1) of the Firearms Act gives this Tribunal jurisdiction, as it allows a person to apply to the Tribunal for an administrative review under the ADR Act of "(a) the refusal of or failure by the Commissioner to issue a licence" and "(c) the revocation of a licence".
5. Section 40 of the CAT Act provides: An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules.
6. Section 55(2) of the ADR Act provides: Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules.
7. The enabling legislation, that is the Firearms Act, does not provide a time limit for the making of an application to the Tribunal.
8. The Civil and Administrative Tribunal Rules 2014 which are the "procedural rules" (see the ADR Act, s 4(1) and the CAT Act, s 4(1)), provide in rule 24(3): Unless the Tribunal grants an extension under section 41 of the Act, an application must be made: (a) in the case where enabling legislation specifies the period within which the application is to be made - within the period specified, or (b) in any other case - by the end of the default application period.
9. Rule 24(4) defines the "default application period" as: (a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997 - the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act, or
10. The parties agree that applying the above-referenced provisions to the circumstances of this case, the 28-day period for lodging an application with the Tribunal expired on 10 November 2020, which was 28 days after the internal review was taken to have been finalised on 13 October 2020.
11. The Applicant's NCAT Application, however, was not received until 16 September 2021. The NCAT Application was thus in excess of ten (10) months out of time.
12. Section 41(1) of the CAT Act provides: 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.

Issue for determination

1. The issue for determination is whether the Tribunal should grant the Applicant an extension of time under section 41 of the CAT Act.

Relevant principles

1. Under section 41 of the CAT Act the Tribunal has the power to grant an extension of time in which to file an application for review. The power under section 41 of the CAT Act is a discretionary one and in exercising that discretion, the Tribunal must seek to give effect to the guiding principles to facilitate the just, quick and cheap resolution of the real issues in the proceeding (section 36 of the CAT Act).
2. In CFZ v Department of Education [2015] NSWCATAD 231 ("CFZ"), Senior Member Molony considered the principles applicable to granting an extension of time in the administrative review are context. He concluded (at [9]) that the principles applicable to granting an extension of time in which to appeal, as discussed in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 ("Jackson") are equally applicable to an administrative review application, with appropriate adaptation. In Jackson, the Appeal Panel referred to the following considerations (internal citations omitted): 22 The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant …; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision … and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success …; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), … and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable ...
3. In CFZ, Senior Member Molony wrote (at [9]): 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…. So too is timeliness or delay in the antecedent administrative processes…. Those matters are necessary adaptations to the consideration of an extension of time in the context of an administrative review.
4. A summary of the relevant considerations is set out by Senior Member Lucy in CFA v Department of Family and Community Services [2016] NSWCATAD 32, Whilst it is important to remember that the Tribunal has a broad discretion concerning the grant of an extension of time, the cases referred to above establish that the following factors are relevant: (1) The length of the delay; (2) The reason for the delay; (3) The applicant's prospects of success; (4) Any prejudice suffered by the respondent; (5) Public interest considerations; (6) Timeliness or delay in antecedent administrative processes; (7) Whether strict compliance with the rules will work an injustice upon the applicant.
5. Both parties in the present matter relied on the above list of factors. The Tribunal will next consider how each of the factors applies in the circumstances of the present case.

Application of relevant principles to the present case

Length of the Delay

1. The Applicant concedes that the NCAT Application was filed out of time by more than ten months and that this is a "significant delay". The Applicant observes that whilst this is a "significant delay", no outcome has been received from the Firearms Registry in this matter. The length of delay has, according to the Applicant, been exacerbated by the failure of the Firearms Registry to give any indication of the expected outcome in the internal review. This delay, the Applicant submits, should be considered in determining this application.
2. The Respondent points out that the delay is in excess of ten months, and that a delay of that length "stands in stark contrast" to the statutory time permitted of 28 days.
3. The Tribunal considers the length of the delay in the present matter to be a factor weighing strongly against a grant of an extension of time. It notes that in other cases, even much shorter periods of delay have not been excused for purposes of extension requests (e.g., 62 days was described as "a significant delay" in CFZ; and 9 days was even too long in Commissioner for Social Housing v Williams [2017] ACAT 63 ("Williams"), cited by the Respondent).

Reason for the Delay

1. The Applicant points to the error of his solicitor as the first reason for the delay. The misinterpretation of legislation meant that the Applicant was given advice that he could elect to appeal to the Tribunal for review of the decision at any point from 21 days from the filing of the appeal up until 28 days from the outcome of the decision. The Applicant also says that had there been an outcome of the internal review within 21 days, he would have provided instructions to file an appeal to NCAT. The Applicant further points to the communication from the Firearms Registry that it was impossible to provide a timeframe for when the internal review would be complete, "essentially leaving the [Applicant] in a state of suspension at the discretion of the registry". He states that he preferred to exhaust each step of the appeal before moving onto the next as he hoped the matter would be satisfactorily resolved at the internal review stage.
2. The Respondent submits that the Applicant attempts to deflect blame for the delay on the Firearms Registry. However, the Firearms Registry's communication with the Applicant's solicitor had been immediate, including on 22 September 2020 acknowledging receipt of the Internal Review Application and in response to the status update request on 15 December 2020. In both instances, the Firearms Registry was transparent about the likelihood of delays, the operation of section 53(9) of the ADR Act with respect to the review being taken to be finalised after 21 days, and the right to make an application to the Tribunal from that point onwards. The Respondent thus emphasises that the delay in filing the NCAT Application was entirely due to the Applicant. The Respondent does not accept legal error as an excuse for the delay, in circumstances where the Firearms Registry had directed the Applicant's lawyer to the specific provisions of relevance and provided a simple explanation as to their effect. The Respondent submits that "lawyers are not strangers to the existence of time limitations and the need to identify and strictly comply with them."
3. The Tribunal takes into account that the reason for the delay was the Applicant's solicitor's misunderstanding of the legislation. The Tribunal notes that the solicitor made an error about the timeline despite the Firearms Registry twice informing him promptly and in clear terms that if no outcome of the internal review was conveyed within 21 days, the internal review is taken to be finalised under section 53(9)(b) of the ADR Act and the client may then apply to NCAT. The lawyer confirmed in his affidavit that he understood that the internal review "is taken to be finalised after twenty-one (21) days" and so advised his client. Where he erred was in failing to advise her that as soon as the review is taken to be finalised, the 28-day period for applying to NCAT commences. The Applicant submitted that the solicitor was aware that time limits existed, but did "not properly inform himself of when this time limitation ran from".
4. The Applicant's solicitor also pointed out that he is "not a frequent participant in the Administrative and Equal Opportunity Division" of the Tribunal and referred to the case of Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61, ("Kharbanda") in which Judge O'Connor stated "a more generous approach to the acceptance of an explanation for late filing may be appropriate in the case of 'one-time' participants in the processes of the Tribunal, especially if they are unrepresented or have special disabilities. Even in the case of a sophisticated litigant … it may be unduly harsh to visit upon it an omission on the part of its legal adviser." Here, the Applicant was not unrepresented nor under any special disability. The solicitor does not state he was a 'one-time' participant, but rather that he was not a frequent participant in this particular division of the Tribunal. Given that the Firearms Registry referred the solicitor to the specific legislative provisions and the way in which they triggered time limits for review, the Tribunal considers the explanations of the Applicant for delay to be weak.
5. The Tribunal also recalls that the Applicant himself was immediately attentive to obtaining legal assistance and filing the Internal Review Application in a timely fashion. He diligently followed up with his solicitor as soon as the 21‑day period expired. Nevertheless, as explained by his solicitor, he chose to wait out the internal review process rather than pursue the matter simultaneously with the Tribunal. There is nothing in the record explaining what steps, if any, he took within the long ten-month period that passed between his follow-up enquiry to his solicitor and the decision finally to file the NCAT Application. While some degree of blame falls to his lawyer, the lack of follow-up must, to some extent, also reflect a lack of urgency or attention on the part of the Applicant himself.

Prospects of Success

1. The Applicant claims that he has strong prospects of success. He recalls that in his Internal Review Application he submitted that there was no reasonable cause to suspect that the Applicant would not exercise continuous and responsible control over firearms and if it were determined that any element of the Applicant's domestic arrangements were of concern, then a relocation of the firearms could eliminate any concern to a point where virtually no risk exists. The Applicant acknowledges that the lack of specificity contained in the initial notice to revoke and notice to refuse mean that "it is a difficult task to further submit on the prospects of success before the tribunal and in absence of any further evidence that the Registry may rely on in these proceedings proper."
2. The Respondent submits that there is no evidence provided to the Tribunal by the Applicant as to the merits of the application for review. It recalls from Jackson (at [22(4)]) that "it may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable." As discussed below at paragraph 54, the Respondent does not consider there is any prejudice suffered by the Applicant who can simply make a fresh application. Further, the Respondent submits that there is an absence of evidence that his case "has more substantial merit than merely being fairly arguable."
3. The Tribunal notes that there is a paucity of information relating to the merits of Mr Hull's application for a Category A, B licence. The Applicant's submissions also mention that his mother has purchased and resides on an agricultural holding in which his access to firearms are "more important for the commercial enterprise". However, these items are unsupported by any evidence and in any event do not shed any light on the domestic circumstances that might have led to, and are referenced in, the Respondent's Decision. Additionally, after fifteen months since the Decision, the circumstances of the Applicant may well have changed.
4. The Tribunal notes the observations in Jackson about the need for a showing of "substantial merit" when there is a long delay. Similarly, the Williams tribunal cited Justice Refshauge in the matter of Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTA 56 ("Concerned Citizens"), for the principle that in cases of long delay there is the need to show a "strong case" on the merits. The Tribunal does not have sufficient material before it to make a finding about the Applicant's prospects of success on the merits, and certainly not to the degree of a "substantial merit" or a "strong case". The Tribunal thus has not given great weight to this factor in deciding the extension request.

Prejudice suffered by the Respondent

1. The Applicant submits that the Respondent suffers no prejudice at the application being made out of time.
2. The Respondent does not expressly address the prejudice it suffers by the application being made out of time, or prejudice that it would suffer by allowing the application to proceed despite the delay.
3. The Tribunal gives little weight to this factor in deciding the extension request. It notes that in Concerned Citizens (at [20]-[21]), the court found that the "mere absence of prejudice is not enough to justify the extension of time."

Public interest considerations

1. The Applicant submits that it is in the public interest that this matter be heard by the Tribunal, noting that the Applicant had been given almost no detail into the Decision and that as a matter of procedural fairness the Applicant must be able to understand the case that he is to meet. The Applicant submits, as a public interest factor, that his mother has purchased and resides on an agricultural holding "in which access to firearms is more important for the commercial enterprise."
2. The Respondent recalls that the Firearms Act is intended to protect and promote the public interest and that there is a cost associated with administering the Firearms Act, including with dealing with applications under that Act. Although this Tribunal is tasked with conducting reviews in a "just, quick and cheap" manner, the real costs of merits reviews, both to the parties and to the Tribunal "is not limited by the Tribunal's fee structure". The Respondent recalls the comments of the Tribunal in Williams (at [22]) to the effect that time limits are important and that tribunals deciding applications for extension of time should provide guidance to other parties. In particular, they: should send a message that parties and their representatives should routinely comply with rules, practice direction and orders of the Tribunal. If that happens, applications such as this, which consume the resources of the parties and divert resources from the Tribunal from dealing with substantive matters, will be less frequent and perhaps become a thing of a past.
3. The Respondent concludes that it is "not in the public interest that the Tribunal should entertain dealing with applications lodged grossly out of time due to the admitted error of their legal representatives when it is available to the Applicant to simply re-apply directly to the Firearms Registry for the licence."
4. The Tribunal is not persuaded by any public interest reason favouring the granting of an extension in this case. The Tribunal accepts that there are public interest factors weighing against the grant of an extension, including those cited above from Williams.

Timeliness or delay in antecedent administrative processes

1. The Applicant observes that it is "clear from the material that there are substantial delays in the internal review process at present". The Applicant was notified of this both in the automatically generated email in September 2020 and the email in response to her status update request in December 2020. The Applicant states that while aware of the pressures currently facing the Firearms Registry, the "review should have been completed within 21 days of the review being filed."
2. The Respondent states that the Applicant "misses the point", namely that the statutory requirement of 21 days is the trigger for enlivening the Applicant's entitlement to apply to the Tribunal, and at that point "it then falls upon the Applicant to act in a timely manner." The Respondent maintains that the Firearms Registry acted in a timely and efficient manner in the 'administrative' process in that it responded to both of the Applicant's lawyer's emails on the day of transmission. There was, according to the Respondent, "nothing done by the Registry which encouraged, inducted or contributed to the Applicant's failure to lodge an application with the Tribunal in time."
3. The Tribunal acknowledges that the Registry has taken over a year to process the Applicant's Internal Review Application and from the Applicant's point of view this delay is frustrating. Nevertheless, the Applicant was informed about the delays, and the mechanism available to deem the decision as having been made if no outcome was advised within 21 days. In terms of communications with the Applicant's solicitors, the Registry proved to be prompt and responsive on both occasions. Accordingly, the Tribunal does not consider the Registry's internal delays as a reason to grant an extension of time in the present circumstances.

Whether strict compliance with the rules will work an injustice upon the applicant

1. The Applicant points to the comments in Kharbanda (at [27]) that it may be "unduly harsh to visit upon [a litigant] an omission on the part of its legal adviser". The Applicant submits that he would "suffer a detriment if the tribunal did not see fit to deviate from a strict compliance with the rules and as such should exercise the powers to invoke procedural fairness in circumstances when the live issue is not due to the Applicant's fault."
2. The Respondent submits that there is no evidence of any prejudice being suffered by the Applicant. The Respondent points out that if the Applicant wishes to press for a licence to possess and use a firearm, it is open to the Applicant (and his mother) simply to lodge a fresh application with the Firearms Registry. There is no legislative bar to them doing so. For example, there are no 'mandatory disqualifying offences' involved. The Respondent also notes that with the passing of over 15 months since the decisions were made, there may have been a change in the Applicant's circumstances.
3. The Tribunal accepts that the Applicant can re-apply to the Firearms Registry for the licence and if he experiences the same kind of delays, will be aware that the decision will be deemed to have been made within 21 days, after which the 28-day time limit for application to the Tribunal will start to run. Repeating such a process will obviously inflict some level of inconvenience, but the fact remains that re-application is an avenue available to the Applicant. Therefore, strict compliance with the rules in this case will not inflict an injustice on the Applicant in this case.

Conclusion

1. In light of the above considerations, the Tribunal refuses to grant the extension of time for filing the application for administrative review.

Orders

1. The Tribunal makes the following orders: 1. The Tribunal dispenses with a hearing in this matter in accordance with section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) 2. The Applicant's application for an extension of time in which to apply for administrative review is refused. 3. The Applicant's application for administrative review is accordingly dismissed.

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: 11 January 2022