Sbat v Commissioner of Police [2021] NSWCATAD 174

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sbat v Commissioner of Police [2021] NSWCATAD 174 Hearing dates: 26 April 2021 Date of orders: 21 June 2021 Decision date: 21 June 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: The application is dismissed. Catchwords: ADMINISTRATIVE LAW – Firearms Prohibition Order – late application for internal review – whether the Tribunal may consider an application for administrative review Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Crimes Act 1900 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW) Cases Cited: Coleman v Health Care Complaints Commission [2020] NSWCA 337 Libdy v Commissioner of Police [2020] NSWCATAD 276 Texts Cited: Nil Category: Procedural rulings Parties: Omar Sbat (Applicant) Commissioner of Police (Respondent) Representation: Counsel: C Parkin (Applicant)

Solicitors: Birchgrove Legal (Applicant) Crown Solicitor (Respondent) File Number(s): 2021/00028724 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. This case concerns a firearms prohibition order (FPO) pursuant to s 73(1) of the Firearms Act 1996 made by the Commissioner against Mr Sbat, the applicant, on 25 February 2019. 2. The FPO was served on Mr Sbat on 25 March 2019 in person. He was entitled to an internal review of the decision under s 75(1)(f) of the Firearms Act and s. 53(1) of the Administrative Decisions Review Act 1997 (the ADR Act). Section 53(2)(d) of the ADR Act requires an application for internal review to be made within 28 days of the date on which he was notified of the FPO or such later date as the decision maker may allow. 3. Mr Sbat made an application for internal review of the decision on 16 September 2020. The respondent refused to undertake an internal review on the basis that the application was not made within a reasonable time. Nevertheless the applicant's internal review submissions were considered by a delegate of the respondent who decided to decline to revoke the FPO. 4. Mr Sbat has applied for administrative review of the decision by this Tribunal. Under s 55 of the ADR Act he is not entitled to administrative review unless he duly applied for an internal review and that internal review was finalised under s 53(9). However the Tribunal may deal with the application for administrative review if the Tribunal is satisfied that: 1. 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 2. 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 (s 55(4) ADR Act).