Diamond v Commissioner of Police [2022] NSWCATAD 217

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Diamond v Commissioner of Police [2022] NSWCATAD 217 Hearing dates: On the papers Date of orders: 30 June 2022 Decision date: 30 June 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: 1. The interim application is to be determined on the papers, and dispensing with a hearing, pursuant to s50(2) Civil and Administrative Tribunal Act 2013. 2. The substantive application has been filed within time. 3. The Tribunal has jurisdiction to determine the proceedings. 4. The matter is to be fixed for a directions hearing by the Registrar. Catchwords: PROCEDURAL HEARING – reckoning of time – s 36 Interpretation Act NSW 1983 – s 53 Administrative Decisions Review Act NSW 1997 – request for internal review Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Interpretation Act 1987 (NSW) Category: Procedural rulings Parties: Michael Constance Diamond (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Hartman & Associates (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/00045826 Publication restriction: None

REASONS FOR DECISION 1. On 16 February 2022, Mr Michael Diamond ("the applicant") lodged with the Tribunal an application for administrative review of a decision made by the Commissioner of Police ("the respondent") on 24 December 2021. The decision which is the subject of review is a notice of refusal for a category A firearms licence under the Firearms Act 1996. 2. It is not in dispute that when considering the substantive application, the provisions of the Administrative Decisions Review Act 1997 (NSW) ("the ADR Act") are apposite. Section 55 of the ADR Act provides: 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. (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. Note— The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013. (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). (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. (6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests. (emphasis added) 1. It was identified at a directions hearing on 5 April 2022, that the applicant did not lodge a request for an internal review of the respondent's decision in accordance with s 55(3) of the ADR Act. For this reason, the Tribunal is to determine whether the substantive proceeding can proceed. 2. Orders were made for the parties to file submissions concerning whether leave for the applicant to proceed should be granted pursuant to s 55(4)(a) of the ADR Act. For the reasons given below, leave for the applicant to proceed is not required.