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Supreme Court of Victoria |
Last Updated: 3 August 2023
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
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and
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MAGISTRATES’ COURT OF VICTORIA
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Second Defendant
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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ADMINISTRATIVE LAW — Judicial review — Plaintiff subject to a
final intervention order under the Family Violence Protection Act 2008
(Vic) and hence a ‘prohibited person’ for the purposes of the
Firearms Act 1996 (Vic) — Plaintiff applied to Magistrates’
Court under Firearms Act 1996 (Vic),
s 189 for order deeming him not to be a prohibited person —
Magistrates’ Court order deemed plaintiff to be a non-prohibited
person
for the purposes of any employment, or in other circumstances considered
suitable to Victoria Police Firearms Registry —
Plaintiff’s firearm
licence subsequently cancelled by delegate of Chief Commissioner of Police
— Whether Magistrates’
Court failed to exercise the jurisdiction
given to it under s 189 by delegating determination of the purposes for
which plaintiff
was deemed not to be a prohibited person — Proceeding
commenced 153 days out of time — Whether special circumstances
justifying
extension of time — Extension of time granted — Order set aside and
application remitted to Magistrates’
Court for rehearing —
Firearms Act 1996 (Vic), ss 3, 47, 49, 50, 189.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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RA Criminal Lawyers
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For the First Defendant
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For the Second Defendant
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No appearance
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1 SBW has held a firearms licence for more
than 30 years, since he was a
teenager.[1] Until 6 May 2022 he held
a category A and B longarm licence under the Firearms Act
1996 (Vic), for the reason of
hunting.[2] He also trained with and
used firearms during 27 years of exemplary service with the Australian Army. He
was medically discharged
from the Army in 2015.
2 SBW
and FPL were married for 25 years, and together they had three children. They
separated in June 2018 and were divorced in January
2020.
3 On 27 November 2020, FPL obtained an interim
intervention order against SBW, under the Family Violence Protection
Act 2008 (Vic). On 4 December 2020, as a result of the interim order, a
delegate of the Chief Commissioner of Police suspended SBW’s
firearms licence under s 47 of the Firearms Act and gave notice that he
proposed to cancel the licence under
s 49.
4 After a contested hearing on 11 August
2021, the Magistrates’ Court of Victoria made a final intervention
order for the protection of FPL. The order did not include conditions
cancelling or revoking
SBW’s firearms licence. The order expired 12
months later, on 10 August 2022.
5 A consequence of
the final intervention order was that SBW became a ‘prohibited
person’ for the purposes of the Firearms Act. Under paragraph (c)(i) of
the definition of ‘prohibited person’ in s 3(1) of the Firearms
Act, a person who is subject to a final order under the Protection Act is a
prohibited person while the order remains in force, and for
five years after it
expires.
6 Section 47A of the Firearms Act requires
the Chief Commissioner to suspend a firearms licence held by a paragraph (c)(i)
prohibited person. If the licence holder
does not within three months of the
suspension make an application for a declaration under s 189 of the
Firearms Act, the Chief Commissioner must cancel their
licence.[3]
7 In
addition to s 47A of the Firearms Act, s 49(5) provides:
In the case of a person whose licence has been suspended and who makes an application under section 189, the Chief Commissioner must cancel the licence unless—(a) the court makes a declaration referred to in subsection (1)(a) ...; or(b) the court makes a declaration referred to in subsection (1)(b) ... deeming the holder of the licence to be a prohibited person for limited purposes and the purpose for which the person is deemed not to be a prohibited person is the purpose for which the licence is issued.
A person who is a prohibited person referred to in paragraph (c)(i) of the definition of prohibited person in section 3(1) may apply to the Court for a declaration that the person—(a) is deemed not to be a prohibited person by virtue of being or having been subject to a final order of a kind referred to in that subparagraph; or(b) is so deemed for limited purposes only.
9 Where such a declaration is made, the
purposes for which the person is deemed not to be a prohibited person must be
specified in
the order.
10 On 6 September 2021, SBW
applied to the Magistrates’ Court for a declaration under s 189(1) of
the Firearms Act. His application stated that his purposes for having a
firearms licence were hunting, sport/target shooting, as a collector, and
for
occupational purposes as a pest controller and a military museum curator. He
provided letters from his employers and his treating
psychologist in support of
his application.
11 However, FPL objected to the
declaration being made, and provided a detailed statement in which she explained
why she felt safe
knowing that SBW did not have access to guns, and her fears
about him regaining that access. She did not suggest that he had ever
committed
family violence using a firearm, nor that he had threatened to do so. Her fears
were based on her view that SBW was fixated
and irrational in his thought
processes, had limited capacity to manage his own thoughts, and might lash out
in an emotional situation.
She was particularly concerned about what might
happen if their youngest daughter, who was then 13 years old and living with
SBW,
wished to change her living arrangements in
future.
12 On 22 April 2022, a magistrate heard
SBW’s s 189 application and granted it in part. Both SBW and the
Chief Commissioner
were represented by counsel at the hearing. The Chief
Commissioner did not formally oppose the application, and said that he would
be
governed by whether the magistrate was satisfied that SBW had demonstrated a
genuine need.
13 At the conclusion of the hearing on
22 April 2022, the magistrate ordered:
The Applicant, [SBW], is now deemed a non-prohibited person pursuant to s.189 Firearms Act: for the purposes of any employment, or in other circumstances considered suitable to Victoria Police Firearms Registry.
14 Her Honour’s reasons for the order were recorded on transcript, as follows:
This is a firearms application of [SBW] pursuant to s189 of the Firearms Act. He comes about as a prohibited person before an intervention order finding being made against him and the need for an intervention order being established by a magistrate in a contested hearing. That intervention by all accounts has expired.
It seems this application has been adjourned on a number of occasions for review and support from Victoria Police to file material before the court. I have been assisted by the affidavits from Brittany Darvell, [SBW], and also from [FPL]. As I have revealed, there is a letter from Skydive Nagambie and also SMEAC in relation to future employment on file, and they are helpful and also speak very highly of [SBW]’s skills and ability with respect to firearms. As I have said at the outset, this is not in issue.
The applicant here has given evidence, and as I have said, there is a number of matters of which I do not have issue, which would entitle him to an application being granted and an order being made of this court. There is concern for the lack of insight or appreciation of another's point of view, which is why the firearms legislation and the Family Violence Protection Act matters are so intertwined.
Here, I have determined in the exercise of my discretion in these matters to grant the application and order as follows: the applicant, [SBW], is now deemed a non-prohibited person, pursuant to s189 of the Firearms Act for the purposes of any employment or in any other circumstances considered suitable to Victoria Police Firearms Registry. And I have said that as a caution and to allow that process to take place. Having had many of these applications before me, I understand the process, although I concede they were usually by police officers down in the city seeking their firearms applications returned to them.
Another order and a note I am making is that I have heard evidence. I note the protected person objects and material has been filed in support. And for the record, I am not satisfied that her intervention order was brought for collateral purposes at all, as alleged by the applicant, and all objections to this application are without foundation. However, on balance, as ordered, the application is granted, and I put that on the record.
15 SBW might reasonably have thought that this was a favourable decision, and that he would soon regain the firearms licence that had been suspended since December 2020. However, on 6 May 2022, a delegate of the Chief Commissioner gave notice that the licence had been cancelled. The cancellation letter from the Victoria Police Licensing and Regulation Division read:
On the 4th December 2020, your firearms licence was suspended on the grounds that you are now a prohibited person for the purposes of the Firearms Act 1996 (the Act).
Your application under section 189 of the Act to be declared a non-prohibited person was approved by the ... Magistrates Court, on the 22nd April 2022, with specific conditions attached to the approval.
The conditions state “THE APPLICANT, [SBW], IS NOW DEEMED A NON-PROHIBITED PERSON PURSUANT TO S.189 FIREARMS ACT, FOR THE PURPOSES OF ANY EMPLOYMENT, OR IN ANY OTHER CIRCUMSTANCES CONSIDERED SUITABLE TO VICTORIA POLICE FIREARMS REGISTRY.
The above conditions do not specifically support the genuine need activity of hunting on your firearms licence, subsequently your Category A & B Longarm Licence ... is hereby cancelled, as per section 49(5) of the Act.
16 On 19 May 2022, SBW applied to the
Firearms Appeals Committee for review of the Chief Commissioner’s decision
to cancel his
licence. The Committee dismissed his application on 7 September
2022, on the basis that SBW lacked standing.
17 The
Committee provided written reasons in which it explained that its review
jurisdiction under s 50 of the Firearms Act was limited to the cancellation
of licences under s 49(1). Because SBW’s licence was cancelled under
s 49(5), and not s 49(1), the Committee had no jurisdiction to review
the cancellation. The Committee also considered that the limited purposes for
which
SBW had been declared to be a non-prohibited person did not include making
an application under s 50 of the Firearms
Act.
18 In an attempt to find a way out of this
regulatory thicket, SBW commenced this proceeding, in which he seeks judicial
review of
the order of the Magistrates’ Court made on 22 April 2022
(April 2022 Order). He seeks orders quashing or setting aside the April
2022 Order, and remitting his s 189 application to a differently
constituted
Magistrates’ Court to be determined according to law. He also
seeks an extension of time to bring the proceeding, under r
56.02(3) of the
Supreme Court (General Civil Procedure) Rules 2015
(Vic).
19 The Chief Commissioner appeared at a
directions hearing on 8 February 2023, and advised that he did not oppose or
consent to the
relief sought by SBW, and did not propose to take an active role
in the proceeding. This position was apparently based on an agreement
that SBW
would not seek costs against the Chief Commissioner. On 28 February 2023, SBW
filed an amended originating motion deleting
his claim for a costs order against
the Chief Commissioner. The Chief Commissioner has taken no step in the
proceeding since that
time, and did not appear at the trial on 25 July
2023.
20 The Magistrates’ Court wrote to the
Court on 1 December 2022, advising that it did not intend to take an active role
in the
proceeding and would abide by the decision of the
Court.[4]
21 For
the reasons that follow, I will extend the time for SBW to commence this
proceeding, set aside the April 2022 Order, and remit
the s 189 application
to the Magistrates’ Court to be heard and determined according to law.
Should time be extended?
22 Under r 56.02(1) of the Rules, a
judicial review proceeding under Order 56 must be commenced within 60 days after
the date when
the grounds for the relief or remedy claimed first arose. Rule
56.02(3) provides that the time fixed by r 56.02(1) may not be extended
except in special circumstances.
23 The expression
‘special circumstances’ is ‘deliberately flexible and designed
to encompass cases which might
not easily be anticipated by more prescriptive
words’.[5] The question whether
special circumstances exist is to be determined objectively, by reference to the
whole of the circumstances
of a particular
case.[6] Relevant circumstances
include the length of the delay, the reasons for the delay, justice to both
parties including any prejudice
occasioned by the delay, the merits of the
grounds for review, and the public interest in the finality of
litigation.[7] No one circumstance is
necessarily determinative; all relevant factors (positive and negative) should
be
considered.[8]
24 As
to the length of the delay, the time limit expired on 21 June 2022, 60 days
after the Magistrates’ Court made the April
2022 Order. SBW commenced
this proceeding on 21 November 2022, 153 days out of
time.
25 SBW swore an affidavit in which he gave the
following reasons for the delay:
(a) After learning of the cancellation of his licence on about 9 May 2022, he elected to have the cancellation reviewed by the Committee. He posted his application for review on or about 20 May 2022. On 7 September 2022, the Committee gave its decision that it did not have power to hear his application and, as a result, it was dismissed.
(b) On or about 22 September 2022, he instructed his lawyers that he wished to have the April 2022 Order reviewed. On 28 September 2022, they contacted the local Magistrates’ Court for a copy of the original s 189 application, which was not provided until 5 October 2022.
(c) On 12 October 2022, Victoria was affected by heavy rainfall and the area surrounding SBW’s home in regional Victoria was flooded. He is a volunteer with the Country Fire Authority and was engaged in assisting the community with the impact of the flood. This delayed the preparation of his affidavit in support of his application for review.
(d) SBW swore his affidavit in support on 9 November 2022.[9]
26 I accept this explanation of the
reasons for the delay.
27 The Chief Commissioner did
not oppose an extension of time, and did not suggest that Victoria Police would
suffer any prejudice
due to the delay. On the other hand, this proceeding is a
necessary step in SBW’s efforts to regain a firearms licence. Aside
from
the explained delay in commencing this proceeding, SBW has not rested on his
rights in seeking to maintain, and now regain,
his
licence.
28 Significantly, I consider that there is
merit to SBW’s contention that the April 2022 Order was affected by error,
and that
the error was material to the cancellation of his licence by the Chief
Commissioner.
29 While there is a strong public
interest in the finality of litigation, in this case it is outweighed by other
considerations, including
the desirability of correcting error and injustice.
In the circumstances of this case I am satisfied that there are special
circumstances
that justify extending the time in which to commence the
proceeding to 21 November 2022.
Should the April 2022 Order be set aside?
30 SBW submitted that the April 2022
Order impermissibly delegated determination of the purposes for which SBW should
be deemed not
to be a prohibited person to the ‘Victoria Police Firearms
Registry’. The Firearms Act reposed the jurisdiction to determine that
question in the Magistrates’ Court, and did not authorise the magistrate
to delegate
the whole or any part of that jurisdiction to another person. The
April 2022 Order did not specify the purposes for which SBW was
deemed not to be
a prohibited person, as required by s 189(2) of the Firearms Act. By
ordering that SBW was deemed not to be a prohibited person ‘in other
circumstances considered suitable to Victoria Police
Firearms Registry’,
the magistrate in effect referred the question for her decision to the very
person who was bound by the
Firearms Act to cancel SBW’s licence unless
the Magistrates’ Court deemed him not to be a prohibited
person.
31 I accept this submission. Section 189 of
the Firearms Act entrusts to the court to which the application is made the
jurisdiction to decide whether the applicant should be deemed not to be
a
prohibited person, either generally or for limited purposes
only.[10] The importance of this
question is underscored by s 189(2), which provides that the purposes for
which the applicant is deemed not
to be a prohibited person must be specified in
the order of the court. In SBW’s case, the magistrate did not determine
the
question. Instead, she left it for the Victoria Police Firearms Registry to
determine whether SBW should be deemed not to be a prohibited
person for any
purpose other than employment.
32 The
‘purposes’ contemplated by s 189 of the Firearms Act are not at
large, but rather relate to the reasons for which the particular applicant holds
their firearms licence. The scheme of
the Firearms Act is that firearms
licences are issued only for specified reasons, which vary with the type of
licence. Relevantly here, the Chief
Commissioner must not issue a category A or
B longarms licence unless the applicant can demonstrate that the licence is
required
for one or more of five specified reasons,
namely:[11]
(a) for sport or target shooting;(b) for hunting;
(c) for primary production;
(d) for the occupation of security guard or prison guard;
(e) for an official, commercial or prescribed purpose or for a purpose authorised by an Act or regulations.
Disposition
40 I will make an order in the nature of
certiorari, quashing the April 2022 Order, and an order in the nature of
mandamus, remitting
SBW’s s 189 application to the Magistrates’
Court to be heard and determined according to
law.
41 SBW also sought an order that his s 189
application be heard and determined by a different magistrate. Some good reason
must be
demonstrated for the Court to make such an order. A good reason might
be found in some feature of the conduct or reasons for decision
of the primary
decision-maker that would give the appearance of unfairness to the successful
party if the matter were to be remitted
to the same decision-maker — for
example, strongly expressed views on key issues, or adverse findings about the
credit of
witnesses.[15]
42 I
am not persuaded that such a reason exists here. In particular, I do not
consider that the magistrate’s remarks about
SBW’s lack of insight
and empathy for his former wife’s position give rise to a reasonable
apprehension of bias. Those
remarks were not remiss, in light of some of the
evidence SBW gave during the
hearing.[16] It is notable that the
magistrate decided to deem SBW not to be a prohibited person for some purposes,
despite her Honour’s
concerns about SBW’s lack of
insight.
43 It will be a matter for the
Magistrates’ Court to allocate the s 189 application to a magistrate
for rehearing.
44 In addition, SBW sought an order
that the Magistrates’ Court pay his costs of the proceeding. It is only
in extreme circumstances
that a costs order may be made against an inferior
court or tribunal in a judicial review proceeding; a mere error made in good
faith
should not attract an adverse costs order. Here, I do not consider that
the magistrate acted perversely or that there was serious
misconduct or
impropriety that might justify an award of costs against the Magistrates’
Court.[17]
45 Although
SBW did not seek an order that the Chief Commissioner pay his costs of the
proceeding, my preliminary view is that the
Chief Commissioner should be ordered
to pay those costs.
46 My preliminary view is based
on the following matters:
(a) SBW has succeeded in obtaining the relief he sought in this proceeding. Ordinarily, he would be entitled to an order that the unsuccessful party pay his costs of the proceeding.
(b) For the reasons just given, this is not one of those exceptional cases in which costs should be ordered against the Magistrates’ Court.
(c) The Chief Commissioner was represented by counsel at the Magistrates’ Court hearing on 22 April 2022. The purpose of that appearance is unclear, given the Chief Commissioner’s stated position that he did not oppose the s 189 application. Counsel for the Chief Commissioner did not make submissions on the relevant law, or the need for an order under s 189 to relate to the reason for which SBW held a firearms licence. They stood by while the magistrate made an order in terms that erroneously delegated to Victoria Police a decision about the purposes for which SBW should be deemed not to be a prohibited person. By his participation in the hearing on 22 April 2022, the Chief Commissioner contributed to the error that affected the April 2022 Order.
(d) The Chief Commissioner took a curious and somewhat unsatisfactory position in this proceeding. In proceedings such as this one, the Chief Commissioner is not a private litigant, but represents the public interest.[18] While he did not formally adopt a Hardiman position, and did not oppose SBW’s claim for relief, he provided no assistance to the Court in determining that claim.[19] This stance created the impression that the Chief Commissioner was more concerned with minimising exposure to costs than with representing the public interest in this proceeding.
(e) Because the Chief Commissioner appeared in the proceeding before the Magistrates’ Court, SBW may not apply for an indemnity certificate under s 7 of the Appeal Costs Act 1998 (Vic).
(f) But for s 38 of the Appeal Costs Act, I would have been inclined to grant an indemnity certificate to the Chief Commissioner. However, that provision precludes the Court from granting an indemnity certificate in favour of the Crown or any person representing the Crown.
47 The Chief Commissioner should advise my chambers within seven days whether he opposes an order that he pay SBW’s costs of this proceeding. In that event, I will list a further hearing to hear the Chief Commissioner’s submissions on that question. There will be no need for SBW to appear at that hearing.
[1] The plaintiff and his former wife are referred to by pseudonyms in these reasons, so that these reasons can be published without contravening s 166 of the Family Violence Protection Act 2008 (Vic).
[2] Firearms Act 1996 (Vic), s 10(1) provides that the Chief Commissioner must not issue a longarm licence for category A or B longarms unless the applicant can demonstrate that the licence is required for one or more of the listed reasons, which include ‘for hunting’.
[4] In accordance with the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35–6.
[5] Mann v Medical Practitioners Board [2002] VSC 256, [18] (Mann), approved on appeal in Mann v Medical Practitioners Board [2004] VSCA 148; (2004) 21 VAR 429, [68]–[72] (Hansen AJA, Chernov and Nettle JJA agreeing).
[6] Mann, [19].
[7] Lazarevic v Victoria Police [2014] VSC 497, [35]; Richards v Magistrates’ Court of Victoria (No 2) [2018] VSC 226, [12].
[8] Kocak v Wingfoot Pty Ltd [2011] VSC 285, [36].
[9] At trial, SBW’s counsel advised that the further delay between 9 and 21 November 2022 was due to an issue about whether SBW, who holds a Veteran Gold Card, was eligible for a concession on the fees payable under the Supreme Court (Fees) Regulations 2018 (Vic).
[10] Section 189(3) of the Firearms Act defines ‘Court’ for the purposes of s 189. In the case of a person who was made the subject of a final order under the Protection Act in Victoria, an application under s 189 must be made to the court which made the order — in this case, the Magistrates’ Court.
[12] Firearms Act, s 176.
[13] See, eg, Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597.
[14] Supreme Court of Victoria, Practice Note SC CL 9: Judicial Review and Appeals List, para 8.1. This was the course taken by the Chief Commissioner in Swebbs v Magistrates’ Court of Victoria & Ors [2017] VSC 229.
[15] Vegco Pty Ltd v Gibbons [2008] VSC 363; (2008) 30 VAR 1, [33].
[16] Magistrates’ Court Transcript, 22 April 2022, 11:24–19:27.
[17] Cf Magistrates’ Court of Victoria at Heidelberg v Robinson [2000] VSCA 198; (2000) 2 VR 233; Zukanovic v Magistrates’ Court of Victoria at Moorabbin [2011] VSC 141; (2011) 32 VR 216.
[18] Clark v Chief Commissioner of Police [2010] VSC 144, [7].
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