Appeal Panel CITATION: Commissioner of Police, New South Wales Police Service v Brett (GD) [2002] NSWADTAP 34 APPELLANT PARTIES: Commissioner of Police, New South Wales Police Service RESPONDENT Kenneth William Brett FILE NUMBER: 029031 HEARING DATES: 27/09/02 SUBMISSIONS CLOSED: 09/27/2002 DATE OF DECISION: 10/29/2002 Brett v Commissioner of Police, New South Wales Police Service [2002] NSWADT 115 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Higgins S - Judicial Member; Antonios Z - Member CATCHWORDS: delay - relevant/irrelevant considerations MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 013156 DATE OF DECISION UNDER APPEAL: 07/04/2002 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1966 CASES CITED: Sweet v Commissioner of Police [2000] NSWADT 185 APPELLANT REPRESENTATION: J Klarica, counsel RESPONDENT In person ORDERS: 1. Appeal dismissed 1 This appeal relates to a decision of the General Division of the Tribunal which set aside the decision of the Commissioner of Police to revoke the firearms licence (category AB) issued on 10 September 1998 under the Firearms Act 1996 (the Firearms Act) to Kenneth William Brett, who is the respondent to the appeal: see Brett v Commissioner of Police, New South Wales Police Service [2002] NSWADT 115. 2 Mr Brett had voluntarily surrendered his firearms to local police on 5 May 2000 in line with advice given to him by those treating him for depression following the break-up of his marriage. In early 2001 there was disagreement as between local police, and as between medical practitioners, as to whether Mr Brett was sufficiently recovered to end the suspension and restore his licence. Ultimately there was a decision to recommend to the Firearms Registry that the licence be revoked, and that occurred on 3 April 2001. Mr Brett sought internal review. The agency confirmed its decision, and he was so advised by letter dated 2 May 2001. On 25 June 2001 he applied to the Tribunal for review of the decision. A hearing took place on 16 August 2001. It was adjourned part heard to a date to be fixed. There was no further hearing. However, the Tribunal, without objection from the parties, in November 2001 considered further evidence by way of an exchange of correspondence between the parties. The cover page to the decision states that submissions closed on 23 November 2001. The decision was delivered on 4 July 2002. 3 A party is entitled to appeal to the Appeal Panel in relation to a question of law, and, with the leave of the Appeal Panel, the appeal may extend to the merits: see Administrative Decisions Tribunal Act 1997 (the Tribunal Act), s 113(2). 4 In this case the Commissioner lodged a notice of appeal on 5 July 2002. At hearing the Commissioner did not pursue all the grounds set out in the notice. In the notice the Commissioner also sought leave to extend the appeal to the merits. However, at the hearing of the appeal the Commissioner stated that the Commissioner no longer sought any order which might interfere with Mr Brett's continued retention of his licence. If it was successful on the appeal, it did not seek any order that would have the effect of Mr Brett losing his licence. The essential dispute of the hearing before the Tribunal Member was whether Mr Brett had sufficiently recovered from depression to be given back his licence now (Mr Brett's case), or should it only occur after a period of 12 months, commencing in February 2001, had passed satisfactorily (the Commissioner's case). 5 By the time the decision was delivered, the 12 months' period mentioned had passed without incident or further concern. As noted, the Commissioner did not object to the effect of the decision – i.e. the restoration of Mr Brett's licence. 6 However the Commissioner has persisted with the appeal, because of concerns he has that the decision was affected by errors of law. 7 Mr Brett participated in the appeal by telephone. He had no submissions to make, especially once he learnt that his licence would not be placed in jeopardy even if the Commissioner successfully argued that the Tribunal's decision was affected by errors of law. 8 The Commissioner pressed two objections to the decision at the appeal: (1) that, as the decision was delivered later than the time limit for delivery of decisions set by s 80(3) of the Tribunal Act, the decision was without effect; and, alternatively (2) the Tribunal erred by having regard to irrelevant considerations (at [56] of its reasons); misapplied the Firearms Act to the facts; and erred in considering issues as they stood at the date of the decision (4 July 2002) rather than at the time of the hearing (16 August 2001). (1) Late Publication of Reasons 9 The time limit applying to the delivery of decisions in the Tribunal is governed by s 80, as follows: ' 80. Tribunal may reserve decision (1) The Tribunal may reserve its decision in any proceedings before it. (2) A reserved decision of a member or members of the Tribunal may be given: (a) by the member or members at a subsequent sitting of the Tribunal, or (b) if the decision of a member is set out in writing and signed by the member---by being delivered by a member of the Tribunal, or (c) by the Registrar, at a time and place of which the parties have been given reasonable notice. (3) If the Tribunal reserves its decision, it must give the reasons for its decision either orally or in writing within 6 months (or such other lesser period as may be specified by the rules of the Tribunal generally or for that class of matter) of the date on which it reserved its decision. (4) A failure to comply with subsection (3) does not affect the validity of a reserved decision.' 10 It is a contravention of the statutory duty imposed by s 80(3) for a decision to be delivered later than 6 months after the decision is reserved. In this case, the decision was delivered 7 months after the close of submissions. We note that the Commissioner's submissions proceeded on the basis that the reserved date was the day the hearing concluded (16 August 2001). The Tribunal practice has been, in cases where the parties have been permitted to file further submissions or material after the oral hearing, to treat the final date of those submissions as the date when the decision was reserved (in this case 23 November 2001). 11 The Parliament has made clear in s 80 the importance it attaches to timeliness of decisions in this Tribunal. Clearly it is not acceptable for the Parliament's time limit to be exceeded. But does failure to comply with the time limit have the result suggested by the Commissioner, i.e. the decision under review is unassailable by virtue of the failure of the Tribunal to meet the statutory requirement? The Appeal Panel pointed out to counsel for the Commissioner the potential unfairness of such an outcome. A citizen who had lodged an application for review with the Tribunal would be deprived, through no fault of the citizen, of the benefit that the Parliament had sought to give him or her - a full merits review of the decision by an independent, external Tribunal. That deprivation would be compounded where ultimately it proves to be the case that the Tribunal disagrees with the underlying decision. That was the situation here. 12 In our view, sub-section (4) was inserted in s 80 of the Tribunal Act to deal with the problem this case raises. A decision that is out of time remains valid despite that failure. 13 Counsel for the Commissioner referred in support of his argument to another provision of the Tribunal Act, s 6(5) which provides: ' (5) Failure to make a timely decision taken to be failure to make a decision For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enactment concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.' 14 'Decision-maker' is not a term that is defined in the Tribunal Act. However, it is in our view clear from the definition of 'decision' in s 6 and the definition of 'enactment' in s 5 that the term does not include the Tribunal. 'Enactment' has the meaning of an Act 'other than this Act', whether in relation to a reviewable decision or in any other case: s 5. Accordingly, the reference in s 6(5) to the 'enactment concerned' is a reference to an enactment as defined in s 5, i.e. an enactment 'other than this Act'. This fits with the general scheme of s 6 which, we consider, is directed to the rules that are to apply to decisions over which the Tribunal has jurisdiction, and the effect on jurisdiction of such occurrences as decisions which purport to exercise a statutory power, decisions which are beyond power, failures to make a decision, and failures to make a timely decision. On the other hand, the rules relating to the making of decisions by the Tribunal (the issue here) are dealt with separately in s 80 (see above) and s 87 (power to correct decisions). (2) Alleged Errors in Reasoning 15 As noted earlier, the Commissioner submitted that there were three types of defects in the reasoning: (a) taking into account irrelevant considerations, and no evidence for findings; (b) misapplication of the Firearms Act to the facts; and (c) giving consideration to issues as they stood at the date of the decision (4 July 2002) rather than at the time of the hearing (16 August 2002). 16 The power to revoke a licence is conferred by s 24 of the Firearms Act. Section 24(2) relevantly provides: ' (2) A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) ..., or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (d) for any other reason prescribed by the regulations.' 17 Section 11(3) and (4) of the Firearms Act deal with the grounds upon which the Commissioner may refuse to issue a licence, relevantly as follows: ' (3) A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, ... (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: ... (b) the applicant's intemperate habits or being of unsound mind.' 18 In his reasons for decision the Commissioner based his decision on several heads of power - (i) a reason for not issuing a licence - being of unsound mind (s 11(4)(b)); (ii) no longer being a fit and proper person (s 11(2)(c)); and (iii) a reason prescribed by the regulations (s 11(2)(d)), in this instance, 'that it is not in the public interest for the person to whom it [the licence] is issued to continue to hold it.' (Firearms (General) Regulation 1997, cl 17). 19 The two paragraphs in the reasons which are the subject of objection (paras [56] and [67]) occur in the course of the Tribunal's consideration of the 'unsound mind' basis for revoking the licence. There is no challenge to the Tribunal's reasons rejecting the Commissioner's reliance on the 'not fit and proper' and 'public interest' grounds. (a) Irrelevant Considerations and No Evidence Objections 20 There is always a question of degree involved in the assessment of whether a person's mind is 'unsound'. We agree with the approach taken by the Tribunal in Sweet v Commissioner of Police [2000] NSWADT 185: '22 In interpreting the phrase "unsound mind" the ordinary grammatical meaning of the phrase must be applied. "Unsound" is defined in the Macquarie Dictionary , 3rd edition, The Macquarie Library, as "not sound; diseased, as the body or mind." 23 In Herbohn v NZI Life Ltd [1998] QSC 122 (12 June 1998) WC Lee J gives a useful exposition of the meaning of "unsound mind." His Honour said that: 'Mayo J. in Pointon v. Walkley [1951] S.A.S.R. 121 at 125, when concerned with the meaning of "unsound mind" for the purposes of a limitation statute . . . said:- "'Unsound' is the anthesis of 'Sound'. 'Sound', when used in connection with body or mind, denotes the presence of perfect health or, putting it another way, the absence of all defects other than those that are trivial. A sound person is one without the sign of disease, malady or unhealthy abnormality.' When seeking to ascertain the meaning of the words "unsound mind" in a statute, they must be construed in relation to the subject matter with which the statute is dealing and their place within it: Kirby v. Leather [1965] 2 Q.B. 367 per Lord Denning M.R. at 383 where the Master of the Rolls said that for the purposes of that statute, a person is of unsound mind if he is incapable of managing his affairs as a reasonable man would do; King v. Coupland . So also with the expression "mental condition" which, according to Slattery J. in Kotulski v. Attard (1981) 1 N.S.W.L.R. 115 at 118 was "meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise will power to control physical acts in accordance with rational judgment".' 21 The Tribunal in this case, in line with submissions, purported to adopt the approach reflected in these observations. 22 The Commissioner objects to the reasoning process found at paras [56] and [67]. 23 At para [56] of its reasons, the Tribunal said: '56 The evidence established that Mr Brett had been diagnosed and treated for depression between May 2000 and January 2001. The pivotal factor leading to this diagnosis was that Mr Brett had entertained thoughts of suicide in the period following his wife of many years leaving him for another man. The evidence established that although he did have suicidal thoughts for a time, he no longer had such thoughts, and had not had such thoughts for a very long time. Even at the time Mr Brett had such thoughts , the actual action he took to seek medical assistance suggests quite rational judgment . On the evidence Mr Brett has appeared to act throughout his episode quite rationally.' (emphases in original text) 24 The Commissioner takes issue with the last two sentences -'Even at the time Mr Brett had such thoughts, the actual action he took to seek medical assistance suggests quite rational judgment. On the evidence Mr Brett has appeared to act throughout his episode quite rationally.' 25 The Commissioner submits that the above are opinions not based on evidence. He submitted that there needed to be some evidence that he had exercised rational judgment at the relevant time. All that was revealed by the evidence, Mr Klarica (counsel for the Commissioner) submitted, was that when Mr Brett had sought treatment he had been advised to surrender his firearms, and had done so. 26 Mr Klarica's submission in effect is that there needs to be a medical opinion that what occurred was an exercise of 'rational judgment' not merely a conclusion to that effect by the Tribunal. In this case the Tribunal had before it at hearing the following medical assessments: Dr A Moynham, clinical forensic medicine unit, NSW Police, 14 August 2001; Dr Tim Norris, Acting Senior Police Medical Officer, 19 March 2001; Dr Peter O'Brien, consultant psychiatrist, Southern Area Health Service, 8 January 2001; Jenni Chown, EMI Practitioner, Southern Area Health Service, 29 March 2001. As noted below, in reaching its final decision it also had two further medical reports before it, from Dr Peter O'Brien dated 27 September 2001, and Mr Brett's account of Dr Bandari's report made 1 March 2002. 27 In particular the report of Dr Peter O'Brien dated 8 January 2001 includes the following passage: 'At this stage, both the team and I have made no further plans to see him. He voluntarily gave his guns into the police, surrended [sic] his gun licence, during the crisis when he was quite down over the issues with his wife. They are now resolved and I can see no reason at all that he should not again be given his gun license (especially given the situation of living on the farm and having the need for the gun for feral animals).' 28 In our view, it was open on the material for the Tribunal to reach the conclusion that it did. It was not, we consider, bound to have a medical opinion before it precisely reflecting the terms of its findings. As we understand the Tribunal's reasoning, it saw the material as favouring the conclusion that this conduct supported a view favourable to the applicant that he had sought to act rationally at the time he handed in his guns and his gun licence. The Tribunal was seeking to derive from the expert evidence before it a conclusion that had regard to the way in which the issue of 'unsound mind' has been approached in the leading cases cited in Sweet. The hearing had proceeded without the Commissioner testing any of the medical evidence. The only oral evidence was given by the applicant, and he was cross examined. 29 At para [67] the Tribunal said: '67 Finally, in relation to Mr Klarica's submission that while Mr Brett was 'still being medicated for a condition that falls within the ambit of unsound mind as defined .....he is not of sound mind as defined in the legal sense.....' to be far too broad to agree with. There was no evidence to support the suggestion that all depression or depressive conditions or disorders render sufferers to be of an unsound mind for the purposes of the Act. It is conceivable that there are persons with depression in the community, whether diagnosed or not, whether treated or not, whether medicated or not, that are of no danger to themselves or anyone else. In Mr Brett's case the symptom that gave rise to the possibility of him being of unsound mind had been treated and no longer existed; the fact he remained on medication for some time after that symptom had disappeared is not, by itself, a sufficient basis to found a belief of unsound mind for the purposes of the Act. As it turns out, the fact now is that Mr Brett is no longer on medication anyway so the submission no longer applies. In the Tribunal's view, the fact it was recommended at the time medication stopped that Mr Brett be further reviewed in the future is also not a sufficient basis, in itself, to found an unsound mind.' 30 In the case of para [67] of the reasons, the Commissioner takes issue with the following statement as involving irrelevant considerations - the first and second sentences - 'Finally, in relation to Mr Klarica's submission that while Mr Brett was 'still being medicated for a condition that falls within the ambit of unsound mind as defined .....he is not of sound mind as defined in the legal sense.....' to be far too broad'; and 'There was no evidence to support the suggestion that all depression or depressive conditions or disorders render sufferers to be of an unsound mind for the purposes of the Act.' 31 Mr Klarica's objection is that this is a misunderstanding of his submissions, and the nature of the task before the Tribunal. There was no submission, he said, to the effect that all depression or depressive conditions led to a person being of unsound mind. We have reviewed the transcript; and agree with him that his submissions went to the legal meaning to be given to the term 'unsound', and how that meaning applied to the particulars of this case, having regard to the objectives of the legislation. His approach was in line with the approach, to which we have already referred, adopted in Sweet's case. 32 In so far as the Tribunal might be interpreted as requiring some other approach, we accept the objection of Mr Klarica. 33 The proper question (to paraphrase the words of Mayo J (cited above)) is whether the person has a disease, malady or unhealthy abnormality [in this setting, of the mind], other than a trivial one, such that a person can be said not to be perfectly sound. But there is a difficult further question raised by cases such as this where the question is whether a person can be said to be 'unsound' in circumstances where their condition is controlled by the required taking, on a regular basis, of medication. Mr Klarica's contention, as we read his submissions at hearing, has been in essence that the Tribunal has to have regard to the individual's circumstances on the basis that he or she is not receiving medication, or has desisted from taking medication. It should not approach the question on the basis of an assumption that the person is adhering to and will continue to adhere to their treatment regime. The Tribunal in para [67] was seeking to address these views. In the end, it did, as we see it, regard as relevant to its overall assessment the presence of a treatment regime, and Mr Brett's adherence to it. It may be that, as submitted by Mr Klarica, this was an error. We do not express a final conclusion on this matter on this occasion. The question will need to be examined in some future case as to whether unsoundness should be assessed as if the person affected by a mental condition was not in receipt of any controlling medications or other interventions. Our provisional view is that there may be circumstances where it is appropriate to judge the question of 'soundness' taking into account the medical regime. But equally it may be that the risks to the community involved in the possibility of violent behaviour occurring if the individual allows the regime to lapse would justify reliance (in the case of firearms licensing) on the 'public interest' or 'risk to the safety of others' discretions to take away the licence. 34 We do not see it as necessary to reach a final conclusion on Mr Klarica's submission in this case, because it is clear from the second-last sentence in para [67] that ultimately the Tribunal did not regard any of the matters it has already canvassed as critical to its decision. To reiterate the second last sentence of [67] is - 'As it turns out, the fact now is that Mr Brett is no longer on medication anyway so the submission no longer applies.' We will now turn to the Commissioner's objection to this part of the reasons. Procedural Fairness 35 As noted, the Tribunal made (in para [67]) the critical finding that 'Mr Brett is no longer on medication'. The Commissioner's objection is that there was no evidence to that effect presented in the course of the proceedings. Accordingly, either the Tribunal has made this finding on the basis of no evidence; or, if it did have evidence, the Commissioner was not given the opportunity to test it, giving rise to a denial of natural justice. 36 Under s 73 of the Tribunal Act the Tribunal has a broad discretion as to how it is to conduct its procedures: ' 73. Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so---to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing---may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate, and (h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance. (6) A judicial member may: (a) hold a directions hearing in relation to any proceedings before the Tribunal, or (b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal.' 37 At the hearing on 16 August 2001, the Tribunal canvassed with the parties the possibility of allowing some more time to run, and awaiting a further medical report from Dr O'Brien before forming any final view. It was on this basis, essentially, that it adjourned part heard and left the option open of fixing a further date for hearing. As it transpired a further report was filed but a hearing was not convened. 38 On 31 October 2001 the applicant filed with the Tribunal a report dated 27 September 2001 from Dr O'Brien relating to the applicant's condition as at 27 September 2001. The report was addressed to Mr Brett's GP, Dr R Thangavelu of Crookwell, with copies to Mr Brett and Dr Bandari (another psychiatrist) of Goulburn. That evidence was made available to the Commissioner for comments, and was the subject of a brief reply by the solicitor to the Commissioner (Ms Paterson) on 21 November 2001. In these circumstances it was not necessary for the Tribunal to convene a further hearing. 39 In the report, Dr O'Brien advised that he had recommended to Mr Brett that as from 27 September 2001 he suspend taking medication for a trial period. Dr O'Brien then recommended to Dr Thangavelu that he review progress after a trial period of 2-4 weeks; and then that there be a further review a few weeks later and again in about January 2002 by Dr Bandari, a psychiatrist practising at Goulburn, near where Mr Brett now lived. Dr O'Brien saw this procedure as providing an appropriate basis for assessing the adequacy of his progress for the purpose of re-assessing his claim to have the firearms licence restored. 40 The solicitor for the Commissioner did see Dr O'Brien's report, had the opportunity to put submissions as to the report. 41 Most importantly, there is a letter from Mr Brett to the Tribunal dated 29 April 2002, in which he provides an update as to his situation. In that letter he states that Dr Bandari told him on 1 March 2002 that Dr Bandari did not have any concerns in relation to the firearms licence being restored. Mr Brett said that he had not taken any medication since 27 September 2001 and was well and fit. 42 Whilst it did not say so expressly, the Tribunal was, we consider, referring to this evidence in the passage criticised by the Commissioner. The Tribunal file shows that the letter was referred to the solicitor for the Commissioner; fax dated 1 May 2002. There is no record of any comment being received from the solicitor. In these circumstances, we consider that the requirements of procedural fairness have been met. The Commissioner was placed on notice that there was evidence (in the broad sense that the term is used in the setting of this Tribunal) upon which reliance might be placed in the decision. 43 Clearly great care must be shown in giving weight to an applicant's (necessarily self-serving) report as to their behaviour on such a crucial matter. But the Tribunal had had the benefit of hearing oral evidence from Mr Brett, and of seeing how he dealt with cross-examination; and to that extent forming a view as to his reliability and trustworthiness. It was open, as we see it, to the Commissioner to challenge the contents of the letter from Mr Brett, providing the update, but it did not do so. 'Correct and Preferable': What is the Relevant Time 44 It is accepted that in exercising its merits review role in respect of administrative decisions, the task of the Tribunal is to make the 'correct and preferable' decision (the Tribunal Act, s 63) on the basis of all the material before it, subject always to the requirements of procedural fairness. The position is not that the Tribunal makes its decision on the basis of the material that was before the administrator at the time he or she made their decision. 45 There was no dispute with these propositions on the part of the Commissioner. The Commissioner was concerned as to what the cut-off point was for the Tribunal. 46 It was contended, in the original notice of appeal and again in submissions at the hearing of the appeal, that the Tribunal should have made its decision on the material before it as at 16 August 2001. This objection, as we see it, is linked to the procedural fairness objection. We are satisfied that the Tribunal was entitled, not having disposed of the matter, to take into account first the report from Dr O'Brien dated 27 September 2001 and second the letter from Mr Brett dated 29 April 2002. This was new material that came to light after the hearing and before the decision. It was open to the Tribunal to take into account. It was clearly relevant. We are satisfied that it did accord procedural fairness. Order 1. Appeal dismissed. 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.