PLAINTIFF ASKS FOR EXTENSION OF TIME FOR THE FILING OF SUMMONS SEEKING A JUDICIAL REVIEW DUE TO A DELAY CAUSED BY OBTAINING LEGAL ADVICE AND FUNDS
Solomon v Commissioner of Police (NSW) [2021] NSWSC 236 (17 March 2021)
This is a case where the plaintiff asks for extension of time for the filing of summons seeking a judicial review of the decision of the senior adjudicator affirming the decision revoking the firearms license of the plaintiff.
Facts:
The plaintiff, David Solomon, lives on a rural property in north-eastern New South Wales. Until April 2014 he held a license under the Firearms Act 1996 (“Firearms Act”) (and earlier legislation). On 9 April 2014 his licence was revoked. On 22 January 2019 a delegate of the Police Commissioner made a “firearms prohibition order” under S.73 of the Firearms Act (“initial order”). On 27 January 2019 the order took effect when it was served on the plaintiff.
The decision to make the order was an “administratively reviewable decision” for the purposes of S.53 of the Administrative Decisions Review Act 1997 (NSW). The plaintiff sought an internal review. On 4 November 2019 a senior adjudicator carrying out the internal review affirmed the decision to make the initial order (“review decision”). By summons filed on 7 October 2020, the plaintiff sought an order in the supervisory jurisdiction of this Court, pursuant to S.69 of the Supreme Court Act 1970 (NSW), quashing the review decision.
The plaintiff required an extension of time within which to bring the application. Pursuant to the Uniform Civil Procedure Rules 2005 R.59.10(1), such applications must be brought within three months of the decision. Accordingly, the time limitation expired on 4 February 2020. The summons, not filed until 7 October 2020, was some eight months out of time.
The plaintiff’s affidavit of 9 September 2020 revealed that he and his solicitor acted promptly in seeking advice from counsel as to further available challenges, namely within two weeks of receiving the review decision. For reasons which are not explained, no advice was forthcoming. However, there was the solicitor’s letter demonstrated that the plaintiff needed to obtain advice from competent counsel before bringing these proceedings. On 11 March 2020 counsel now acting for the plaintiff was briefed to advise and provided advice on the merits some four weeks later. The further delay of six months was attributed to the need to obtain funds to instruct counsel during a period when the plaintiff’s business was adversely affected by the pandemic.
Issue: Should the court grant the extension?
Law:
Analysis:
While the affidavit provided a less than complete explanation for the delay, so far as it goes, it is plausible. There are three considerations which favours an extension of time. First, the plaintiff’s submission as to the balance prejudice is correct: indeed, the Commissioner does not allege prejudice. Secondly, the review decision was not based on oral testimony, nor is it suggested that it should have been. Rather it was a review based on documentary material available to the Commissioner at the time it was carried out. Thirdly, although the review decision superseded the initial order, should the review be set aside, the review decision will no longer operate. As the summons asserted, if the review decision were to be set aside, the proper consequential order would be a remittal of the unresolved application for internal review to the Commissioner for further consideration. Thus, to the extent that there is a public interest involved, the plaintiff will remain subject to the initial order until the proposed further internal review is conducted. The status quo will remain.
These three considerations are sufficient to justify an extension of time. Had there been potential prejudice to the public interest
Conclusion: Accordingly, the Court will extend the time for the filing of the summons seeking judicial review.
