Tag Archives: case by case

Court Overturns Tribunal Decision to Remove Firearms Licence from Domestic Violence Order Subject

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In Singh -v- The Registrar of Firearms the Supreme Court has examined an apparent inconsistency between powers granted to Magistrates under the Domestic Violence and Protection Orders Act and the powers of the Registrar of Firearms to strip a Firearms Licence from someone who is the subject of a DVPO final order.

Background

Firstly let me cover myself by saying that Domestic Violence and Personal Protection Orders are not criminal offences. There is no finding of guilt. They are civil proceedings without the usual evidential burdens and there are numerous reasons they can be made. They do deal with some heavy stuff but frequently they are ludicrously overblown and often parties don’t fight them because the undertakings are mutual such as both parties agreeing they want nothing to do with each other. My personal go-to story is the neighbour who felt personally threatened by a tree growing over the fence and both parties agreed to trim the tree and stay 10 metres away from each other and only communicate through their lawyers. This counts as my disclaimer by the way.

Now, down to business.

Following the 1996 Port Arthur massacre, there was a review of firearms laws all over Australian and in the already relatively gun-safe ACT it took the guise of amendments to the Firearms Act to prevent someone applying for a licence if, in the last 10 years, they had been the subject of a gun control order. Under s57 of the DVPO act once a final order is made by a Magistrate, the subject’s Firearms Licence is automatically cancelled unless the Magistrate otherwise orders. s81 of the Firearms Act the Registrar of Firearms is able to cancel a licence under a number of pre-conditions including if the licensee is not suitable satisfied on reasonable grounds. Being the subject of a Domestic Violence Protection Order is arguably a reasonable ground to lose your firearms licence…but thats the entire point…arguably.

In Singh the Appellant had a final order made against him by the Magistrate who elected to grant an application to not strip the applicant of his licence. However, following the making of the final order the Registrar of Firearms, who is the ACT Deputy Chief Police Officer (Crime), Commander David Price, exercised his discretion to take away the licence of the Appellant.

Appeal Points

On appeal the Appellant raised dual issues of an absurd/unreasonable construction of the acts and an inconsistency in the reading of the acts.

On the point of absurd/unreasonable reading the Court found that there may be a “tension” between the acts but was able to rely on (the gift that keeps on giving) Eastman [2010] ACTCA 15 at [88]:

…the word “absurd”…mean[s] “(o)ut of harmony with reason or propriety; incongruous, inappropriate; unreasonable; ridiculous, silly”. The word “unreasonable” means “(n)ot endowed with reason; irrational … . Not based on or acting in accordance with reason or good sense”.

Neither Act can be described as such. Neither Act is internally absurd or unreasonable; any absurdity or unreasonableness arises from the tension between the Acts.

The Court found essentially that there was no absurd or unreasonable construction in the drafting of the acts. Under the Legislation Act, specifically ss138-140, an act must be interpreted by reading the act as a whole and preferring the interpretation which gives effect to the act.

Inconsistency

The Appellant raised the second point of the decision being inconsistent on the difference between a power specifically given to the Registrar versus the apparent guidance provided by the Magistrate.

On the point of inconsistency the court examined a number of authorities including the hansard from the passage of the bill from Mr Bill Stefaniak, then opposing the bill, who now sits on the ACAT, from which the appeal was based, stated:

I am aware that there are firearms enthusiasts who feel that the provisions [the precursor suitability provisions] are too stringent and could result in people having their weapons taken off them, for reasons that are not logically connected with their holding a firearms licence. I have some sympathy with these concerns. By way of hypothetical example, it seems unfair that someone who is a target pistol enthusiast and who perhaps stores their guns in an armoury at a firing range should automatically lose their licence if they had 10 years ago been subjected to an interim protection order and recently had their drivers licence suspended. But that is the automatic effect of [the precursor section].(Australian Capital Territory, Hansard, Legislative Assembly, 3 July 2008, 2754 (Dr Deb Foskey).

The Court’s conclusion of inconsistency included a few biting comments about the operations of the act and the need for the legislature to remedy the inconsistency:

52. Finally, it would be an unusual outcome if the considered decision of a judicial officer is to be rendered otiose by the virtually simultaneous mandatory action of an administrator.53. There is no relevant area in which the provisions can operate consistently. The Tribunal found (at [54]) that the relevant provisions of the DVPO Act were enacted after the relevant provisions of the Firearms Act. That finding was not challenged on the appeal. Therefore, there are strong grounds to conclude that the power granted to the Magistrates Court to make a non-cancellation order in specific cases was intended to repeal the mandatory but general cancellation effected by the Firearms Act.54. I accept that implied repeal leads to odd results, including the result that a licence that is saved by a non-cancellation order cannot be renewed because a renewal is treated as a new licence application and refusal of a new licence is mandatory under the Firearms Act.55. I support the recommendation of the Tribunal at [61] that “…legislative action [should] be taken to clarify the relationship between the DVPO Act and the Firearms Act where a PPO is made against the holder of a firearms licence.”

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Supreme Court tuts Proactive Magistrate

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The ACT Supreme Court has warned Magistrates not to undertake their own investigations when deciding applications before the Court.

In Le Clair v Childs [2015] ACTSC 118 the Defendant was before Court, listed for hearing, after months of adjournments and having been set down for hearing a number of times previously.

The Defendant was brought up from the holding cells and was somewhat perplexed that his Legal Aid solicitor had not appeared to run his ABH assault charge. The Defendant claimed he had in fact been granted aid for the hearing but had refused to Legal Aid solicitor assigned to him on the basis that she had previously advised to to plead guilty to a different charge but that another was assigned to him.

The Magistrate, seemingly unhappy with the veracity of these claims, stood the matter down and apparently contacted a Legal Aid solicitor or the office who confirmed that they had granted aid but could not provide a different solicitor. The Defendant ran his own case and was subsequently found guilty.

On appeal, Justice Burns was seemingly not impressed with the investigations, whatever they revealed and having found that an oral application for an adjournment was on foot, warned the Court not to rely on anything that was not directly before it when deciding the application.

7. I want to make it clear that I do not suggest that magistrates are required to grant an adjournment every time such an adjournment is sought by an unrepresented accused in proceedings in that Court. Much will depend upon the circumstances of the case. However, what I want to make clear is that, in exercising the discretion whether to grant an adjournment, a magistrate is expected to act judicially and to abide by the rules of natural justice and also procedural fairness.

This is a tough one, there is no doubting the importance of the right of the parties to challenge anything the judicial officer seeks to rely on. But that being said, the ACT Magistrates generally have a hard go of it. They are the most expert Magistrates in the country and their jurisdiction is closer to a District Court or the old Federal Magistrates, on top of their local court style jurisdiction. They currently have the biggest backlog in the Territory and despite the constant repetitions of the Supreme Court about the need for quick, inexpensive justice in the Magistrates Court, they are increasingly under a caseload burden. When a Defendant is before the Courts, having been listed for hearing several times, applies for aid, is granted aid, fires aid and asks for another adjournment….it’s not too much a stretch to believe that about 3/4 of the Magistrates would have done the same thing.
Broad message? Remember to get anything you need to rely on into evidence.

Defaults are Expensive, Emails are Free

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In an application for setting aside a default judgment, Master Mossop, considered an expanded test including what notice the Plaintiff notify the Defendant before filing for default judgment. Stormer Building Group v Johnson [2014] ACTSC 23 considered the implications of a hastily filed default application in instances where no correspondence had been received from the Defendant.

r1128 creates a general discretion for the setting aside and the Court generally follows Evans v Bartlam [1937] AC 473 at 480 which confirms that the discretion is unfettered. The Master continued to set out the usual test:

In Ryan v Adams (1993) 112 FLR 474 at 476, Miles CJ said of the relevant principles that, “As far as this Court is concerned, the most authoritative pronouncements are those in the Federal Court in Davies v Pagett (1986) 10 FCR 226.”
11. In that case, the Court noted that the trial judge had set out a summary of the principles from Lord Wright’s speech in Evans v Bartlam, and then adopted the trial judge’s summary of the relevant considerations as follows:
1. The length of the delay between the time for delivery of defence and the date of interlocutory judgment. On this aspect, the giving of notice of intention to apply for judgment may be a relevant factor.
2. The length of delay between the entering of such judgment and the application to set it aside.
3. The reasons for such delay. The defendant’s own contribution to the delay, as contrasted with the delay caused by his legal advisers, may fall for consideration.
4. The evidence as to whether or not the defendant may have a defence? The probability of a successful defence need not be demonstrated, and the fact that a defendant’s case may appear weak, will seldom be a bar.
5. Whether the plaintiff will be prejudiced by setting the aside the judgment, the nature of the prejudice being such that it cannot adequately be compensated by an order for costs.

Refshauge J in part of the Ezekial-Hart v Law Society saga tacked on the judgment of Wallace J in Pope v Aberdeen Transport Co Pty Ltd [1965] NSWR 1550 at 1551 where his Honour said:

I think that where the party signing judgment does so without giving warning of its intention to do so, such party will generally, though perhaps not invariably, be in difficulties on a summons to set aside the judgment where a defence on the merits is disclosed.

Long story short, this additional test has the effect of adding the impetus to the party seeking the apply for default to warn the other side before applying, especially when the application is made so soon to the expiry date for filing. The filling of a defence is not the same as the disclosure required by Ezekial-Hart. In these circumstances, where knowledge of a defence can be constructed, practitioners will have a harder time of explaining why no contact was made.

From a policy point of view, default judgments are relatively simple to have overturned. Hence a hastily applied for default creates more time and expense to the parties and the court as opposed to a simple email or even just allowing a bit of time to pass.

Despite the eagerness of the Plaintiff, there was still a delay on the part of the Defendant in filing to set aside the judgment, and for this the Plaintiff was awarded costs with a pretty accelerated timetable for the Defendant to file their defence, evidence etc.

Failing to communicate intended actions is also possibly a breach of solicitors rules, but in the case of Stormer it was definitely short of this, and frankly 99% of the time it will be too. That being said, it is difficult not to froth at the mouth when the time for filing passes, but do try to resist the temptation, and send a quick email clearly setting out the intended action and possible consequences, particularly when involved with a self-rep.