Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Inman v Commissioner of Police, NSW Police Force [2023] NSWCATAP 297 Hearing dates: 2 June 2023 Date of orders: 03 November 2023 Decision date: 03 November 2023 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member Dr J Lucy, Senior Member Decision: 1. Leave to appeal is refused. 2. Appeal dismissed. Catchwords: APPEAL – Whether decision to make timetabling orders was internally appealable decision – Whether leave should be granted to appeal from summary dismissal decision Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW) Cases Cited: Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Zonnevylle v Minister for Education & Early Childhood Learning [2021] NSWCATAP 398 Texts Cited: None Cited Category: Principal judgment Parties: Christine Inman (Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: Solicitors: Appellant in person Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/00033733 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Date of Decision: 24 January 2023 Before: S Montgomery, Senior Member File Number(s): 2022/370555 REASONS FOR DECISION 1. The Commissioner of Police (the Commissioner) refused the appellant's application for a firearms licence. The applicant did not seek internal review of that decision but instead lodged an application for review of that decision with the Tribunal. 2. The Commissioner applied for the summary dismissal of the application. The Tribunal made timetabling orders, held a hearing of the summary dismissal application then dismissed the appellant's application to the Tribunal for want of jurisdiction. 3. The appellant appealed from both the timetabling decision (which she appears to have misunderstood to be a dismissal of her application) and the summary dismissal decision. 4. We have found that the making of timetabling orders was not an internally appealable decision and that the appellant was not entitled to appeal from it. 5. We decided not to grant leave to appeal from the decision to summarily dismiss the appellant's application to the Tribunal because the appellant has not provided us with sufficient material to determine whether the Tribunal made any error. Background 1. In 2019, the appellant was convicted of the offences of travelling without a railway ticket, resisting an officer in the execution of the officer's duty and assaulting an officer in the execution of duty. As a result of those convictions, a delegate of the Commissioner revoked her firearms licence on 5 June 2019. 2. The appellant applied for a Category A firearms licence on about 23 August 2022. 3. On 9 November 2022, a delegate of the Commissioner refused that application (the refusal decision). The delegate identified in the reasons for refusal that the appellant's 2019 convictions were the main basis for the decision. 4. On 8 December 2022, the appellant applied to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of the refusal decision. She had not first applied for internal review of the refusal decision. 5. Section 55(1) of the Administrative Decisions Review Act provides that an interested person may apply for administrative review of an administratively reviewable decision, and s 55(3) of that Act relevantly provides that such an application may not be made unless the interested person has first applied for an internal review of the decision. 6. The Commissioner's representative informed the Tribunal that the Commissioner wished to apply for summary dismissal of the appellant's application, on the basis that she had not applied for internal review of the refusal decision. On 24 January 2023, the Tribunal made a timetable for the parties to file and serve material relating to the proposed summary dismissal application and listed that application for hearing. The orders were followed by a notation referring to the terms of ss 55(3) and (4)(b) of the Administrative Decisions Review Act. The notation stated that the applicant had not established that it was necessary to deal with the application in order to protect her interests, and invited her to provide evidence in support of that proposition. 7. On the same day, the appellant emailed the Registrar asking for written reasons for the Tribunal's decision. On 30 January 2020, the Registrar wrote to the parties, advising that no written reasons would be provided because the record of case management outcomes did not fall within the parameters of s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 8. On 1 February 2023, the appellant filed a Notice of Appeal, challenging the orders of 24 January 2023 on various bases. 9. On 14 February 2023, the Tribunal held a hearing of the summary dismissal application. Following that hearing, the Tribunal dismissed the appellant's application for review of the refusal decision, for want of jurisdiction. It gave oral reasons for its decision. 10. On 22 March 2023, the Appeal Panel directed that the Notice of Appeal be treated as also challenging the Tribunal's decision of 14 February 2023 dismissing the appellant's application. The Appeal Panel also directed the appellant to file and serve a transcript of the hearing, if oral reasons were given and/or she was relying on what happened at that hearing. Grounds of appeal 1. The appellant annexed to her Notice of Appeal a document setting out her dissatisfaction with the Tribunal's orders of 24 January 2023 and raising some other matters. The document indicated that the appellant understood her application to have been dismissed on 24 January 2023. The document did not clearly identify her grounds of appeal. 2. The appellant did not file an amended notice of appeal, despite being directed to do so, and did not identify any grounds of appeal in relation to the dismissal decision. 3. In submissions, the Commissioner summarised the grounds of appeal which may be discerned from the Notice of Appeal (challenging the 24 January 2023 orders) as follows: 1. Breach of procedural fairness because no reasons were stated and the case was automatically dismissed; 2. For the same reasons, the member was biased; 3. Failure to consider relevant evidence 4. Failure to understand the law correctly because the appellant automatically qualifies for an exemption and has passed the probability test; 5. Failure to exercise discretion reasonably; 6. Failure to give written reasons; 7. Acting under dictation. 1. We consider that this is a fair summary of the grounds articulated by the appellant in the Notice of Appeal. Relevant principles governing the appeal 1. The appellant challenges two "decisions" in her appeal. The first was made on 24 January 2023 (when the Tribunal made timetabling orders) and the second was made on 14 February 2023 (the summary dismissal decision). 2. As indicated above, the appellant appears to have erroneously understood the Tribunal to have dismissed her application at the time it made the timetabling orders. There is an issue as to whether the making of the timetabling orders constitutes an "internally appealable decision" within ss 32(4) and 80(1) of the NCAT Act. If it does, it would properly be characterised as an interlocutory decision. 3. The summary dismissal decision is an interlocutory decision (see NCAT Act, s 4(1), definition of "interlocutory decision"). 4. The appellant may only appeal from an interlocutory decision of the Tribunal with the leave of the Appeal Panel (NCAT Act, s 80(2)(a)). 5. The principles governing leave to appeal from an interlocutory decision were considered by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35]. They include that leave should only be granted where there are substantial reasons to allow an appellate review and that where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal. Hearing of the appeal 1. At the appeal hearing, the appellant initially told us that she maintained her right to silence. We explained that the hearing was her opportunity to persuade us of her case. 2. The Commissioner's representative, Ms Chenhall, submitted at the hearing that the making of the timetabling orders was not an appealable decision. 3. As for the summary dismissal decision, Ms Chenhall submitted that the Tribunal had not made any errors of law. She said that the Tribunal was required to be satisfied of the matters set out in s 55(4)(b) of the Administrative Decisions Review Act before it had jurisdiction to hear the appellant's application. In Ms Chenhall's submission, there was no error in its decision that it was not satisfied that it was necessary for the Tribunal to deal with the application to protect the applicant's interests (within s 55(4)(b) of that Act). 4. The Appeal Panel asked the appellant to explain why the summary dismissal decision was wrong. She responded that she had been embarrassed after she had been arrested. She said that there was a huge amount of paperwork. 5. The Appeal Panel asked the appellant if she could identify an error of law in the summary dismissal decision. The appellant said that her case was qualified for the Court of Criminal Appeal. She said that she did not have the energy or the financial luxury to do this. The appellant told us that in the highest forum in this country things are known very well, but they are just ignored. 6. The appellant did not clearly articulate any errors made by the Tribunal at the hearing of the appeal. Appeal from timetabling orders 1. A party is generally entitled to appeal from an "internally appealable decision" (NCAT Act, s 80(1)). An "internally appealable decision" is "a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction" (NCAT Act, ss 4(1), 32(4)). The term "decision" is defined in s 5(1) of the NCAT Act as follows: "In this Act, decision includes any of the following— (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing." 1. The issue is whether the decision to direct the parties to file and serve material is an internally appealable decision from which the appellant may appeal. 2. We note the following observations of the Appeal Panel in Zonnevylle v Minister for Education & Early Childhood Learning [2021] NSWCATAP 398 at [24]-[25]: "Because the direction made on 14 May 2021 for the parties to make a submission is of no continuing operative effect, it is unnecessary for us to consider the Respondent's submission to the effect that the direction is in fact not an appellable decision. Nevertheless, we are inclined to the view that a direction for the parties to make a submission is not a decision within the meaning of the definition of 'decision' contained in s 5 the NCAT Act. That section defines a decision in inclusive terms and the direction does not, in our view, respond to any of the kinds of decisions described in subsections (1)(a) to (f). Subsection (g) includes the definition of a decision as 'doing or refusing to do any other act or thing'. In our view a direction to make a submission is not a decision requiring a party to do an act or thing. Rather it is a statement that a party has an opportunity to be heard, being a preliminary step before a decision is made. We note that the word 'direction' is contained within s5(1)(b). By that subsection a decision includes 'giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission'. We remain of the view that that subsection does not include a decision requiring a party to make a submission but is intended to include a direction of a more substantive nature. That is apparent from the other kinds of decisions referred to in the subsection, namely giving, suspending, revoking or refusing to give a certificate, approval, consent or permission." 1. We agree with that analysis and are of the view that the making of the timetabling orders does not constitute a "decision" within the NCAT Act. If it does, we do not consider that it is an "internally appealable decision" within the NCAT Act, because it is unlikely that the legislature intended to confer a right to appeal from timetabling orders (even with a leave requirement). 2. If we are wrong about this, however, we cannot see any basis to grant leave to appeal from the Tribunal's decision to make timetabling orders on 24 January 2023. 3. The appellant has not explained how any of her grounds of appeal apply to the decision to order the Commissioner to file and serve material in support of the summary dismissal application and to order the appellant to file and serve material in reply. We cannot see any basis for concluding that there was a breach of procedural fairness, any apparent bias, that the member acted under dictation or made any other error of law. 4. Whilst the Tribunal did not provide any written reasons for the timetabling orders, this is not likely to constitute an error of law, as the orders did not decide any substantive matter and are unlikely to constitute a "decision" within s 62 of the NCAT Act. Section 62(2) of the NCAT Act requires the Tribunal to provide written reasons for a decision, upon request. The Court of Appeal observed in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [68], that even superior courts are not required to give reasons for every interlocutory decision. The same principles are likely to inform the construction of s 62 of the NCAT Act. 5. We note for completeness that a new subsection, s 62(2A), came into force on 20 September 2023, and relevantly provides that s 62(2) does not apply to minor procedural decisions that do not have a final or determinative impact on the rights of a party. However, that provision was not in force when the appellant requested the Tribunal to provide reasons for its timetabling orders and does not affect the determination of this appeal. 6. There are, in our view, no substantial reasons to allow an appellate review from the Tribunal's decision to make timetabling orders. If, contrary to our view, it is an internally appealable decision, leave to appeal from that decision should be refused because the appellant has not persuaded us that there is any error in the orders made. Appeal from summary dismissal decision 1. The appellant has not provided any basis for concluding that the Tribunal made an error when deciding to summarily dismiss her application. The appellant did not apply for a statement of written reasons for that decision, as she was entitled to do under s 62(2) of the NCAT Act. Nor did she provide the Appeal Panel with a sound recording or transcript of the hearing of the summary dismissal proceedings. 2. In these circumstances, the Appeal Panel is not in a position to assess whether the Tribunal made any error in summarily dismissing the appellant's application. 3. On the face of it, it was open to the Tribunal not to be satisfied that it was necessary to deal with the application in order to protect the appellant's interests (within s 55(4)(b) of the Administrative Decisions Review Act). Absent such satisfaction, in circumstances where the appellant had not applied for internal review of the refusal decision, the Tribunal had no jurisdiction to hear and determine the appellant's application. 4. We find that there are no substantial reasons to allow an appellate review of the summary dismissal decision and accordingly we refuse leave to appeal from that decision. Orders 1. We make the following orders: 1. Leave to appeal refused. 2. Appeal 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: 03 November 2023