Smith v Act; R v Sinclair Ex Parte Smith [2006] ACTSC 28 (13 April 2006)

Last Updated: 22 May 2006

STEWART SMITH v AUSTRALIAN CAPITAL TERRITORY and R v MICHAEL JEFFREY SINCLAIR EX PARTE STEWART SMITH

[2006] ACTSC 28 (13 April 2006)

FIREARMS - prohibited pistol - whether Very pistol (flare gun) a prohibited pistol - whether Very pistol within scope of the gun "buy-back scheme" that concluded on 31 December 2003 - it was - whether circumstances of plaintiff's acquisition of 1500 Very pistols a sham - it was not.

Firearms Act 1996 (ACT) ss 4, 13, 23(2)-(4), 66, 72, 93, 129, 136, 136A, 140, 360, Sch 1, Sch 2, Part 12

Firearms (Prohibited Pistols) Amendment Act 2003 (ACT)

Weapons Act 1991 (ACT)

Gun Licence Act 1937-1979 (ACT)

Sale of Goods Act 1954 (ACT) s 22

Firearms Act 1996 (NSW)

Legislation Act 2001 (ACT) ss 139(1), 140, 141(2), 142

Firearms Regulations 1997 ss 4, 19(2)(b)

Firearms (Compensation) Regulation 2003

Supreme Court Rules O 55 r 21

Explanatory Statement for Firearms (Prohibited Pistols) Amendment Bill 2003 (ACT) (17 June 2003)

Bull v Robison (1854) 24 LJ Ex 165

Mersey Steel and Iron Co Ltd v Naylor, Benzon & Co (1884) 9 App Cas 434

Hall v Wells [1962] Tas R 122

Ison v Australian Wheat Board (1967) 68 SR (NSW) 102

Talbot v Husselbee [1980] WAR 146

No SC 753 of 2004

No SC 854 of 2003

Judge: Higgins CJ

Supreme Court of the ACT

Date: 13 April 2006

IN THE SUPREME COURT OF THE )

) No SC 753 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: STEWART SMITH

Plaintiff

AND: AUSTRALIAN CAPITAL TERRITORY

Defendant

IN THE SUPREME COURT OF THE )

) No SC 854 of 2003

AUSTRALIAN CAPITAL TERRITORY )

R

against

MICHAEL JEFFREY SINCLAIR

Defendant

Ex parte

STEWART SMITH

ORDER

Judge: Higgins CJ

Date: 13 April 2006

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff.

1. This matter arises out of two applications concerning items known as Very pistols. The plaintiff/prosecutor is and was at all relevant times a licensed firearms dealer in the Australian Capital Territory (ACT).

2. The Very pistol is a hand held device shaped like a conventional pistol but with an unusual large calibre barrel designed to project signal flares. It was patented in 1877 by US Naval Officer, Edward Wilson Very. It works much as any conventional single shot pistol would.

3. The plaintiff claims that before 20 December 2002 he acquired some 1500 Very pistols together with holsters and lanyards. On 1 July 2003 certain amendments to the Firearms Act 1996 (ACT) (the Act) came into effect by virtue of the Firearms (Prohibited Pistols) Amendment Act 2003 (ACT).

4. The amending legislation was intended to give effect, in the ACT, to a national scheme to "buy-back" handguns so as to remove the same from private ownership. For this purpose, certain handguns were defined as "prohibited pistol(s)". They are (per s 4 of the Act) -

(a) a pistol of more than 9.65 mm calibre;

(b) a semiautomatic pistol with a barrel length of less than 120 mm;

(c) a revolver or single action pistol with a barrel length of less than 100 mm;

(d) a pistol with a capacity of more than 10 rounds of ammunition.

5. A Very pistol cannot satisfy (b) or (d) but does satisfy (a).

6. There is, also, a definition of "prohibited firearm(s)". They are the items listed in Schedule 1 of the Act. Item 13 thereof includes "a firearm capable of discharging by any means ... (b) any pyrotechnic flare or dye".

7. Item 15 refers to -

a cannon or other firearm by whatever name known of a type that -

(a) will expel a projectile by the action of an explosive or other propellant; and

(b) has a barrel with a bore in excess of 10 gauge;

other than a firearm of the Very or rocket type designed and intended for use for life saving or distress signalling purposes ....

8. Clearly, a Very pistol is recognised by virtue of this Schedule as a "firearm". The definition in s 4 of the Act confirms that -

firearm means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an airgun, but does not include anything declared by the regulations not to be a firearm.

9. Section 4 of the Firearms Regulation 1997 did exempt certain devices from the definition but not Very pistols.

10. The legislation concerning firearms was previously to be found in the Weapons Act 1991 (ACT). That in turn repealed and replaced the previous Gun Licence Act 1937-1979 (ACT). Neither of those Acts need be further referred to.

11. The "buy-back" scheme was effected by the former Part 12 of the current Act. There was an "amnesty period" from 30 June 2003 to 1 January 2004 (s 129). The holders of various categories of handguns not previously illegally held could surrender the same and then be entitled to compensation. As a dealer, the plaintiff claims to be within s 136 of the Act -

A licensed firearms dealer is entitled to the compensation prescribed under the regulations for a prohibited pistol if -

(a) the dealer acquired or ordered the pistol before 20 December 2002; and

(b) the dealer surrenders the pistol to a police officer during the amnesty period.

12. To be a firearms dealer the plaintiff had to have been a person (per s 4) -

... who in the ordinary course of carrying on business -

(a) manufactures, buys, sells or repairs firearms or firearms parts; or

(b) exposes or offers firearms or firearms parts for sale; or

(c) possesses firearms for the purpose of selling, transferring or repairing them; or

(d) possesses firearms parts for the purpose of selling, transferring or repairing them, or of manufacturing firearms.

13. Additionally, of course, at the relevant time, the plaintiff needed to have been the holder of a licence to do so. A dealers licence is Item 6 in Schedule 2 of the Act.

14. On 24 September 2003, the plaintiff attended at Canberra City Police Station and offered for surrender to the police officers staffing the Firearms Registry two Mark 8 Very pistols. They were representative of the larger stock he had available for surrender. The staff members declined to accept the firearms claiming that they did not fall under the buy-back scheme.

15. On 28 September 2003, solicitors for the plaintiff wrote to the Attorney-General (ACT) seeking a ruling as to whether the advice, attributed by police to the ACT Attorney-General, was correct.

16. Receiving no reply, the solicitors, on 7 December 2003, wrote to the Registrar of Firearms, the defendant in these proceedings, pointing out that each of the Very pistols No 1 Mark 3, Mark 8 and Mark 4, were of a calibre greater than 9.65 mm and, hence, "prohibited pistols" within the meaning of the amended Act.

17. On 12 December 2003, the defendant replied that he was advised by the Attorney-General's Department that the items were "safety equipment" not "prohibited pistols". This was apparently on the ground that a Very pistol is not a recognised item of equipment in any sport shooting competition. Nor was the plaintiff, in the defendant's opinion, "exiting such a sport if [any such] sport does in fact exist".

18. No reference was made to the plaintiff's asserted status as a licensed firearms dealer.

19. Following that confused and confusing reply, the plaintiff applied, on 24 December 2003, for an order in the nature of mandamus requiring the defendant to accept the firearms as if surrendered so as to enliven the plaintiff's rights, if any, to compensation. That was so ordered by me on that day.

20. On 25 June 2004 the plaintiff sought a writ of mandamus seeking to have the question of the compensation payable to the plaintiff referred to a "valuation panel", being the process authorised by Part 12 of the Act. That process was given effect to by the Firearms (Compensation) Regulation 2003. There had been ongoing correspondence between the plaintiff's solicitors and the defendant and his solicitor before that date with each adhering to their previously adopted contentions.

21. An Order Nisi issued on 28 June 2004 requiring cause to be shown why the writ should not issue. At the consequent hearing on 29 June 2004, a solicitor attended from the office of the defendant's present solicitor to advise that the defendant was not seeking to oppose the order, but without "formally" representing the defendant. There being no opposition from the defendant, the Order Nisi was made absolute and a writ of mandamus issued. The defendant's solicitor "formally" appeared for the defendant (that is, filed a Memorandum of Appearance) on 14 December 2004.

22. On 17 November 2004, the plaintiff filed an Originating Application seeking payment from the ACT in SC 753/04 of $285,349.20, being, allegedly, the total value of the 1500 Very pistols and related items, said to have been so assessed by a valuation panel (excluding GST).

23. By its Amended Defence, the ACT concedes that, between March 1998 to March 2003 and from October 2003, the plaintiff was a firearms dealer licensed pursuant to the Act. It further concedes that 1506 items being "Verry" (sic) pistols, with holsters and lanyards, were surrendered to a police officer; without prejudice as to whether that surrender activated any right to compensation.

24. The substantive case is pleaded by way of denial that the pistols were "prohibited pistols" within the meaning of s 136 of the Act and, hence, that the other items are not "related" to "prohibited pistols".

25. However, the ACT also denies that the Very pistols were "acquired" by the plaintiff, as contemplated by ss 136 and 136A of the Act, before 20 December 2002. Alternatively, the ACT asserts that any such acquisition, if indeed made before 20 December 2002, was unlawful and, by reason thereof, not within s 136 of the Act. That contention relied on the proposition that the plaintiff's licence did not entitle him lawfully to acquire or possess the Very pistols in question.

26. It may be added that, on 20 December 2004, the defendant filed a Certificate under Order 55 rule 21 of the Supreme Court Rules (SCR) asserting that he had not carried out the acts required by the writ of mandamus of 29 June 2004 on the ground that there was no substantive entitlement vested in the plaintiff for such a valuation or, in consequence, compensation.

27. It was agreed that that return did address the primary issue for determination.

28. It is convenient now to address the underlying facts.

29. It was conceded that the Very pistols in question were of World War I and II vintage.

30. Starting with the plaintiff's affidavit of 4 May 2005, he deposes to his experience as a firearms dealer. He concedes that he does not operate premises for retail sale of firearms but facilitates transactions between licensed firearm owners. He also constructs and repairs competition firearms. It is unnecessary further to detail the qualifications and experience of the plaintiff with firearms. They are genuine and substantial.

31. The plaintiff had business dealings with a Mr Michael Hunt since the 1980s. It was, the plaintiff deposed, in May 2002 that Mr Hunt proposed to him that Mr Hunt would sell to him some Very pistols and related items. The offer was further discussed on 7 September 2002 and agreement was reached that, subject to inspection, the plaintiff would purchase 1506 Very pistols from Majura Import and Export Co Pty Ltd (Mr Hunt's company, "Majura"). Delivery was to be "on demand". Mr Hunt would store the items in the meantime. Payment was to be as pistols were onsold. A draft written agreement was prepared.

32. On 7 November 2002, the plaintiff travelled to Koorawatha, New South Wales to inspect the pistols and, if satisfactory, sign the agreement.

33. Agreement was reached. Terms as to payment were that there was to be no initial payment. Instalments of the price were to be paid on and from 1 October 2003 until 1 July 2004. The agreed price was $411,020.00 (including GST).

34. The actual agreement as signed, curiously, fails to reflect all of these terms. First, the agreement is for the purchase of 1500 Very pistols (and related items) not 1506. The particulars of the pistols purchased gives a total, in fact, of 1502. Delivery was to be "free into store" not "as demanded", though that is not necessarily inconsistent. It means that the seller agrees to bear all transport expenses and risk. However, the "store" of the buyer is not identified and the plaintiff deposes he had no commercial premises (see Bull v Robison (1854) 24 LJ Ex 165) that could be so described. The agreement says nothing as to delivery by instalments (see for example Mersey Steel and Iron Co Ltd v Naylor, Benzon & Co (1884) 9 App Cas 434).

35. It is apparent that all of the pistols met the physical dimensions to qualify, as and from 1 July 2003, as prohibited pistols.

36. The plaintiff deposes that he was permitted not to make the initial payment because of a past debt owed to him by Mr Hunt.

37. After he became aware of the handgun amnesty, the plaintiff says, he took the view that the pistols should be surrendered. "From September 2003" he caused the pistols to be stored at Hall. Hall is in the ACT but the actual location of the storage place seems to have been in New South Wales, though near Hall. The owner of the property where they were stored had a firearms licence and could, it is assumed, lawfully store the pistols there on behalf of the plaintiff. The delivery to the store would, if conducted by or on behalf of Mr Hall, satisfy the latter's obligation to effect delivery to the plaintiff.

38. The pistols remained there till surrendered on 31 December 2003 save for the preceding attempt on 24 September 2003 to surrender the pistols.

39. Section 22 of the Sale of Goods Act 1954 (ACT), unsurprisingly, decrees that property in goods sold shall pass when the parties so intend. The fact that possession remained with Mr Hunt until delivery to the premises at Hall says nothing as to the passing of property. On the other hand the "free into store" stipulation implies that the risk of loss or injury to the goods did not pass to the buyer before delivery. In general, property will not pass unless the risk has passed to the buyer. It should be noted, in passing, that a contention that the contract for sale of the goods was unlawful, even if so found, would not prevent property passing to the buyer (see Hall v Wells [1962] Tas R 122; Ison v Australian Wheat Board (1967) 68 SR (NSW) 102).

40. On 27 September 2004 the defendant's solicitor forwarded a valuation report concerning the pistols. The valuers assigned a value of $285,349.20 to them. The plaintiff contends that is the value to be assigned for the purpose of Part 12 of the Act. The defendants dispute that contention on the basis that s 360 of the Act did not apply to the firearms in question.

41. The plaintiff then deposes that, conveniently for him, Mr Hunt has agreed to accept (on behalf of Majura) a price for the pistols less than the agreed price.

42. Mr Michael Robert Hunt, in his affidavit of 5 May 2005, deposes to being a director of Majura. That company is, he deposes, relevantly licensed pursuant to the Firearms Act 1996 of New South Wales. He had also been a licensed firearms dealer in the ACT until 1991.

43. The Very pistols came his way, he deposed, from Australian Defence Industries Limited (ADI). That company, as is well known, manufactures and supplies military equipment. ADI offered to sell their entire reserve stock of Very pistols to Majura. Having done so, Mr Hunt, on its behalf, sought to on sell the pistols in bulk. He suggested a potential profit, in discussions with the plaintiff, of $25,000 to $50,000. He confirmed the plaintiff's account of the execution of the agreement of 7 November 2002.

44. Mrs Kay Dorothier Hunt was company secretary of Majura. She also was a person licensed to possess firearms (A, B and C categories only). She had typed the agreement of 7 November 2002 and confirmed the circumstances in which it was signed.

45. The defendants relied on evidence from Michael Keith Cecil (Affidavit 26 April 2005) identifying the various Very pistols and opining (unremarkably) that they were designed to signal or illuminate, not as offensive weapons, though, as Mr Hunt deposed, they could inflict death or injury if discharged at a person at close range and had a firing range of over 300 feet.

46. Dr Douglas Jervis deposed that he had conducted licence searches in respect of the plaintiff. They revealed that, in March 1998, the plaintiff was issued with an ACT firearms dealers licence for firearms in categories A, B, D and H.

47. Section 19(2)(b) of the Firearms Regulation requires the Registrar of Firearms, in deciding whether to issue a dealers licence, to have regard (inter alia) to "the types of firearms to which the licence relates". Those prohibited are specified in Schedule 1 of the Act. Before 1 July 2003 the list of prohibited firearms did, prima facie, include a Very pistol, not by reason of its bore (Item 15) but by reason of its capacity to project a pyrotechnic flare (Item 13). However, Item 15 expressly excepted Very pistols from its coverage, hence Very pistols were not then "prohibited firearms".

48. If a firearm is "prohibited" it is excluded from an A, B or H category licence but not a C or D category (see Schedule 1). By virtue of Schedule 2 Item 10, a dealers licence may exclude certain kinds of firearms irrespective of category. The plaintiff's licence, as granted at the relevant time included categories A, B and H and also included category D until September 2003. It therefore covered Very pistols.

49. From July 2003, however, Very pistols, falling within Item 13 of Schedule 2, were affected by the insertion in the Act of the definition of "prohibited pistol". A Very pistol is such a pistol by virtue of its bore. It is a pistol as it is a firearm "reasonably capable of being raised and fired by one hand" and not exceeding any "prescribed dimension" (40 cm barrel or overall length 70 cm per Firearms Regulation s 48). The maximum barrel length of the Very pistols is said by Mr Cecil not to exceed 105 mm (10.5 cm). This did not address the question whether any did not exceed 100 mm, which may have provided an additional reason to regard them as "prohibited pistols".

50. The purpose of the definition of certain firearms as prohibited pistols was to activate s 136 of the Act on and from 1 July 2003. As amended that section applied to any such pistols acquired before 20 December 2002. It is clear that the provisions are intended to apply whether or not the pistol had, before 1 July 2003, also been a prohibited firearm, though that could raise other issues not relevant for present purposes. Pistols fell within category H unless a "prohibited firearm". It is apparent that Very pistols fell within category H not being prohibited firearm(s). It should be noted that those categories refer to licences to use or possess the mentioned firearms and some are further restricted by reference to specified uses. A dealer's licence simply takes up the type of firearm which may be dealt with.

51. Section 136 of the Act does not qualify the provisions relating to "prohibited pistols". Those pistols which were "prohibited firearms" were not covered by the licence.

52. Item 13 in Schedule 1 of the Act does not expressly exclude Very pistols as Item 15 does, however, it seems highly unlikely that Item 13 was ever intended to cover Very pistols. It is apparent that such items were intended to be covered by Item 15 from which category they are expressly excluded. If they were already prohibited by virtue of Item 13 there would be no point in the exception so expressed.

53. The note to the definition of "prohibited pistol" ("a prohibited pistol is not a prohibited firearm") puts that conclusion beyond doubt. I agree with Mr Mossop's contention that, at least for the purposes of s 136 of the Act, Very pistols, even if prohibited pistols, are not and never were "prohibited firearms". The benign purpose for such pistols would make it absurd to suggest that they would have been prohibited firearms.

54. The only reason advanced by Mr Mossop for suggesting the Very pistols are outside the definition of "firearms" and hence outside the buy-back scheme, is that they are not designed to kill or maim people. I must reject that contention.

55. Not every firearm is designed to kill or maim people. Even the prohibited variety (Schedule 1) includes firearms capable of discharging "pyrotechnic flares (Items 12 and 13) and imitations or replicas (Item 17). Schedule 2 recognises blank fire pistols (Item 5). A dealer's licence includes any firearm which might be specified in it. The regulations exclude certain kinds of projectile firing devices but not Very pistols (see section 4 of the Firearms Regulation).

56. Thus, on the face of it, Very pistols, if "ordered or acquired" by the plaintiff before 20 December 2002, would be "prohibited pistols" as at 1 July 2003 and, if surrendered before 31 December 2003, fall within s 136 of the Act.

57. It may also be inferred that trade in Very pistols was not, before Part 12 was inserted, a prohibited trade. The very fact that ADI sold them to Mr Hunt's company (Majura) is enough to indicate that, at least for New South Wales, and I perceive no intended difference for the ACT in the Act or regulations.

58. That is, of course, a different question from whether the plaintiff's licence was broad enough to cover Very pistols. However, if, as I conclude, a Very pistol is not a prohibited firearm then it clearly falls within category H. The plaintiff's dealer's licence always covered such firearms.

59. That this should be so, as I have concluded, accords with the presumed legislative intent. Very pistols are designed for notifying distress, particularly at sea, and for battlefield or other scene illumination. Though not designed to maim or kill, they are dangerous and their dissemination and use should rightly be restricted and licensed.

60. As to the question of acquisition of the Very pistols in question, the defendant annexed correspondence obtained (apparently) from ADI concerning the sale thereof to Mr Hunt on behalf of Majura. He offered ADI $45,473 to purchase them. ADI accepted that offer and despatched them to Majura on 23 May 2002.

61. Clearly, the terms of the offer to purchase the same made by the plaintiff delivered an enormous potential profit to Majura.

62. The seminal question is whether the agreement of 7 November 2002 amounted to an "order" or "acquisition" of the 1502 Very pistols later in fact delivered. Had the test in s 136(a) of the Act been expressed as ownership, then a question would arise as to whether, as at 7 November 2002, the plaintiff had acquired the property in the Very pistols. He clearly did not, at any time before taking the pistols to police to surrender them on 24 September 2003, physically possess the pistols.

Had the defendant "ordered" the pistols?

63. In Talbot v Husselbee [1980] WAR 146, the question of what constitutes an "order" arose peripherally. A document requesting supply of goods on hire was issued and then complied with. However, whilst not an "order" for payment of money, it was accepted that the document was an "order" for the supply of goods or services.

64. It is obvious that the document signed on 7 November 2002 has the effect, when accepted, as it was, of obliging Majura to deliver the goods when and as demanded. An "order" commences with a request for the supply of goods. If that request is accepted for fulfilment by the addressee it is an order. It does not need the passing of either property or possession to fulfil that description.

65. I conclude, therefore, at least by 7 November 2002, the plaintiff had "ordered" the goods in question.

Was there a genuine transaction?

66. Majura had acquired these pistols very cheaply. However, it is apparent that marketing them would have taken quite a lot of time and effort. The plaintiff's decision to acquire these pistols from Majura was ostensibly because he had more time to market them than Mr Hunt did. The relaxed terms as to payments indicate that Majura was content to be paid from the proceeds of sales. The inflated price agreed to by the plaintiff, about 50% over the expert valuation later undertaken, supports a conclusion that that price was never going to be one that the plaintiff would be called on to pay. Rather, it seems the price was set optimistically in order to "ramp up" the possible market. That is not, however, unlawful. Nor does it render the transaction a sham. It may, however, be subject to then undisclosed qualifications.

67. It was apparent, indeed conceded, that the plaintiff only brought the pistols into the ACT for the purpose of surrendering them and, thereby, qualifying for the compensation scheme referred to in Part 12 of the Act as amended by the Firearms (Prohibited Pistols) Amendment Act 2003. It was a much more attractive marketing proposal than the sale of the pistols to such other market as there might have been for them.

68. Mr Mossop, for the defendant and the ACT, cross-examined the plaintiff concerning the transaction. The plaintiff conceded that between April 2003 and September 2004, he had stayed full time at an address in Queensland. His stepdaughter, Kim Vasulas, had, during that period, resided at 17 Sherlock Street, Kaleen in the ACT.

69. In early 1998, the plaintiff had applied for renewal of his Dealer's Licence. He specified his address in the ACT as 1 Meyrick Place, Florey. In September 2003, a further application was made by the plaintiff to renew his Dealer's Licence, though applying to a more limited range of firearms than previously. It was in December 2003 that he met with Mr Hunt at Queanbeyan (NSW) to arrange delivery of the pistols into the ACT. Mr Hunt was with the plaintiff when the latter went to the Canberra City Police Station with the pistols. Surrender was declined and the pistols delivered to Hall where they were returned to storage in New South Wales. The plaintiff then returned to Queensland. He came back to Canberra again on 30 December 2003, to effect a physical surrender of the pistols. He notified his expenses in doing so to Mr Hunt but both men denied that there was any arrangement between them for reimbursement of those expenses. The legal advice he obtained, the plaintiff agreed, was arranged by Mr Hunt.

70. The plaintiff had given his residential address, as at 18 September 2003, as 17 Sherlock Street, Kaleen in the ACT.

71. Mr Michael Hunt was also cross-examined. He agreed that he believed that, as at the time of his sale of the pistols to the plaintiff, the latter had sold his Canberra house and had retired. He agreed that he had been asked to retain possession of the pistols because there was not sufficient room for the plaintiff to store them at his Kaleen address.

72. It was his evidence that he agreed with the plaintiff to accept, in lieu of the sum due under the 7 November 2002 agreement, whatever turned out to be the sum assessed for compensation. It is not clear whether that excluded any commission or profit share with the plaintiff. Mr Hunt denied that there was any arrangement or understanding that the sum so ascertained would be adjusted in the plaintiff's favour on account of expenses the latter incurred in surrendering the pistols or otherwise.

73. It was apparent that, at all times when the question of the Very pistols was relevant, each party was aware that Mr Hunt held relevant New South Wales firearms licences and that the plaintiff held similar licences in the ACT. Thus, if Mr Hunt had a stock of Very pistols he wished to surrender so as to take advantage of the Territory compensation scheme, the role of the plaintiff in that enterprise was, at the least, expedient.

74. Mr Mossop directed attention to ss 66 and 93 of the Firearms Act 1996. Section 66 provides -

A person shall not, in carrying on a business -

(a) manufacture, buy, sell, transfer or repair firearms or firearm parts; or

(b) expose or offer firearms or firearm parts for sale; or

(c) possess firearms for the purpose of selling, transferring or repairing them; or

(d) possess firearm parts for the purpose of selling, transferring or repairing them, or of manufacturing firearms;

unless authorised to do so by a firearms dealer's licence.

75. Section 93 provides -

(1) A person who comes into possession of a firearm, but is not authorised by or under this Act to possess the firearm, shall surrender the firearm to a police officer.

...

(2) A person does not contravene a provision of this Act merely by possessing a firearm for the purpose of surrendering it in accordance with subsection (1).

76. In addition, s 13 provides immunity in respect of prior possession of a firearm surrendered during an amnesty period.

77. Mr Mossop, for the defendant and the ACT, raised three arguments in support of their case. First, whether the Very pistols were firearms; second, that they were not items intended to be covered by the compensation scheme; and third, that the pistols had not been ordered or acquired lawfully so as to come within that scheme. It was his contention that the compensation scheme was intended to cover only pistols which, but for the amnesty amendments to give effect to the "buy-back" scheme, were lawfully owned by a person such as the plaintiff.

78. As to the first argument, Mr Mossop referred to the definition of "firearm" in s 4 -

Firearm means a gun, or other weapon that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an airgun but does not include anything declared by the regulations not to be a firearm.

79. I accept that the Very pistol, though capable of being so used, was not designed and intended for use as a weapon to cause injury to persons. The term "gun" is not defined by the Act. Primarily, it is generally understood as a tube designed to fire a projectile. Are the words "or other weapon" intended to apply the definition only to those "guns" designed and intended to inflict injury? If that was so, as I have noted, the inclusion of blank firearms and starting pistols would be difficult to justify. In any event, Item 15 of Schedule 2 expressly refers to a Very pistol as a firearm. Nor would such a reservation fulfil the purpose of the Act in licensing possession and use of devices capable of projecting not only solid objects or explosives but also irritant liquids (see Item 13 Schedule 2). That contention is therefore rejected.

80. As to the second contention, it is accepted that the Very pistol is expressly excepted from the definition of "prohibited firearm" (see Item 15 Schedule 2). However, the 2003 amendments dealing with handguns expressly provided that a prohibited pistol is not a prohibited firearm. The apparent intention is to embrace "prohibited pistols" within the buy-back scheme.

81. Nevertheless, Mr Mossop submitted, the buy-back scheme should not be regarded as applicable to Very pistols.

82. That argument commences with the provisions of s 139(1) of the Legislation Act 2001 (ACT) -

In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

(see also ss 140, 141(2) and 142)

83. Specifically, account may be taken of Explanatory Statements and second reading speeches.

84. The Explanatory Statement in respect of the "buy-back" provisions refers to an intention to give effect to resolutions of the Australasian Police Minister's Council (APMC), endorsed by the Council of Australian Governments (COAG), agreeing to put in place greater restrictions on access to certain types of pistols.

85. Clearly, the Very pistol, as well as a starting pistol, is irrelevant to the main thrust of the resolutions, that is, restricting the use of pistols for sport or target shooting. However, there is a general requirement that a "genuine reason" for possession and use of any pistol should exist as well as a "special need" for such possession and use. Otherwise, the assumption is that such items should not be possessed or used.

86. There are specified reasons stipulated as not being genuine reasons (see s 23(2)) of the Act. That list is not exhaustive (s 23(3)). Section 23(4) of the Act provides a table of "genuine reason(s)". It does not address the use of a pistol for signalling for safety purposes or for ground illumination. However, there is nothing in s 23(4) of the Act to suggest that the list is exhaustive.

87. Further, it is just as reasonable, at least, to expect that the possessor of a Very pistol will be instructed in its safe use and storage as much as the possessor of an airgun. There is less justification for such instruction for the possessor of a blank fire pistol or starting pistol, let alone for replica pistols, though, in each case, some regulation is desirable.

88. It is noted that the proposed buy-back scheme was not announced until 20 December 2002. That makes it unlikely that either the plaintiff or Mr Hunt were, as at or about 7 November 2002, motivated by the prospect of compensation being available let alone by an expectation that compensation would exceed the price paid by Mr Hunt in acquiring the Very pistols in question.

89. As I have noted, however, whilst Item 13 of Schedule 2 of the Act literally applies to Very pistols, Item 15 is more appropriate and expressly excepts Very pistols from its scope. As I have observed, that would be unnecessary if they were already "prohibited". Indeed, I repeat, it is difficult to see why signalling devices such as Very pistols would be "prohibited", albeit there is every reason why they should be subject to licensing provisions.

90. As Mr Mossop submitted, the amending Act intended to prohibit certain pistols whether or not they were prohibited firearms and, indeed, separated out all pistols for such special control. That included collector's items, replicas and blank fire pistols.

91. I note that the Explanatory Statement for the Firearms (Prohibited Pistols) Amendment Bill 2003 gave a reason for the new definition. It said -

The term "prohibited pistol" needs to be defined because the implementation of the APMC/COAG resolutions means that certain pistols, which may presently be possessed and used for some sporting shooting events, will now only be able to be possessed and used for such purposes in more limited circumstances. These "prohibited pistols" are those considered to present the greatest potential risk to the community, when in the wrong hands, because of their firepower or their multi-round capacity or the fact that they are small and, therefore, more readily concealed.

92. Mr Mossop submits, and I accept, that the "buy-back" scheme was never expressly intended to include Very pistols. It may well be that the framers of the legislation simply did not advert to the fact that such pistols existed and would fall within the definition by reason of their bore. I do not accept, however, that the scheme was to be confined to sporting or target pistols. That would simply have been the most usual group of pistols sought to be surrendered.

93. To reformulate Mr Mossop's submission, if, as I find, the Very pistol was never a prohibited firearm but was one able to be licensed and dealt with as a category H firearm, it nevertheless has not become a "prohibited pistol" as it does not come within the mischief sought to be addressed. I reject the contention that Very pistols were intended to be excluded from the buy-back scheme.

94. The plaintiff was authorised, in the course of his business, to "buy, sell, transfer" category H firearms including Very pistols. By virtue of s 72 of the Act no issue arises as to the legality of the purchase of firearms from interstate. Even if it could be concluded that the acquisition by the plaintiff of the Very pistols was really subject to a "sale or return" understanding or, perhaps, a "surrender or return" novation it does not follow that the order or acquisition by the plaintiff of the pistols was a sham.

95. Mr McKeown, for the plaintiff, submitted, first, and I accept, that it could not be concluded that the transaction of 7 November 2002 was in contemplation of the amnesty/buy-back later to be announced. The contention that the acquisition of the Very pistols was a sham or unlawful must also be rejected.

96. As I have accepted, and Mr McKeown submits, the Very pistol is both a "firearm" and a "pistol". Mr McKeown, reasonably, then submits that as it is more than 9.65 mm in calibre, it becomes a "prohibited pistol".

97. Hence, the plaintiff is entitled to compensation having surrendered the pistols before the end of the amnesty period.

98. It is unnecessary to consider whether the report and valuation obtained by the plaintiff is of a panel pursuant to s 140 of the Act. Mr Mossop conceded that, if the pistols surrendered activated the right to compensation under s 136 of the Act then a formal valuation must be undertaken and the sum found due as a result of that valuation must be paid.

99. Mr McKeown also pointed out, and I have verified it, that the Commonwealth Government website does, in fact, identify the Anshutz Very pistol, 30 mm calibre, as a compensable item under the buy-back scheme. Mr McKeown also drew to my attention that Very pistols were expressly excluded from the scheme in New South Wales but not so in Queensland.

100. In reply, Mr Mossop asserted that, as Mr Cecil deposed, these particular Very pistols were military items not "designed and intended for use for lifesaving or distress signalling purposes" (see Item 15 Schedule 2). However, that seems to me to be a distinction without a difference. The pistols themselves were obviously capable of use for distress or signalling purposes though such pistols clearly have other uses and would, for example, have been primarily stocked by the military for military purposes. This was military stock. Once acquired by Majura these pistols ceased, of course, to be intended for military use. They would then have been offered for sale for collections (as with Mr Cecil) or for civilian use. The latter would be, most likely, marine signalling.

101. The Government website referred to by Mr McKeown clearly supports the inference that, though it may not have been expressly intended to include Very pistols in the buy-back scheme, there was no intention artificially to exclude them. They do fall within the definition of "firearm" and "prohibited pistol". There is no reason to exclude such firearms from the definition of "prohibited pistols". They are not expressly excluded though the words apt to do so are contained in Item 15 of Schedule 2, and, apparently, they have been expressly excluded in New South Wales.

102. The truth is, it seems to me, that the resistance of the defendant and the ACT to what otherwise would have been an unintended but minor claim may well be because the plaintiff was seeking to surrender, not merely one or two Very pistols, but over 1500. It clearly was not contemplated that a person with such a large stock of Very pistols would seek to surrender them in the ACT.

103. However, there is nothing I can see which can be invoked, as a matter of principle rather than expediency, to protect the Executive from the somewhat carelessly drafted provisions made by the legislature at the behest of the COAG and APMC. After all, New South Wales apparently managed to express its intention clearly enough. COAG and APMC are, of course, themselves representative of the Executive Governments of Australia.

104. It follows that the plaintiff is entitled to have his claim for compensation determined by a valuation panel. No doubt it will, as a matter of procedural and substantive fairness, have due regard to the expert report already tendered but that is a matter for the panel's decision.

105. I so declare. The parties should bring in short minutes to give effect to this decision and I will hear them as to costs and other ancillary matters.

I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 13 April 2006

Counsel for the Plaintiff: Mr C P McKeown

Solicitor for the Plaintiff: Baker Deane & Nutt

Counsel for the Defendant: Mr D J C Mossop

Solicitor for the Defendant: ACT Government Solicitor

Date of hearing: 20 May 2005 and 28 October 2005

Date of judgment 13 April 2006