CAREY -v- COMMISSIONER OF POLICE WESTERN AUSTRALIA [2026] WASCA 78

[2026] WASCA 78 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CAREY -v- COMMISSIONER OF POLICE WESTERN AUSTRALIA [2026] WASCA 78 CORAM : MITCHELL JA VAUGHAN JA HEARD : 8 JUNE 2026 DELIVERED : 8 JUNE 2026 PUBLISHED : 8 JUNE 2026 FILE NO/S : CACV 22 of 2026 BETWEEN : GEORGE CHRISTOPHER CAREY Appellant AND COMMISSIONER OF POLICE WESTERN AUSTRALIA Respondent ON APPEAL FROM: Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA Coram : HOWARD J Citation : CAREY -v- COMMISSIONER OF POLICE WESTERN AUSTRALIA [2026] WASC 66 File Number : CIV 2231 of 2025 -- 1 of 7 -- [2026] WASCA 78 Page 2 Catchwords: Administrative law - Firearms - Where delegate of Commissioner of Police decided to cancel appellant's firearms licence - Where appellant sought judicial review of cancellation decision - Where merits review by State Administrative Tribunal was available - Whether primary judge arguably erred in dismissing judicial review application on ground that alternative relief was available - Turns on own facts Legislation: Firearms Act 2024 (WA), s 192, s 334, s 335 Result: Appeal dismissed Category: B Representation: Counsel: Appellant : In person Respondent : S J K Teoh Solicitors: Appellant : In person Respondent : State Solicitor's Office Case(s) referred to in decision(s): Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 Farrant v Westpac Banking Corporation [2024] WASCA 157 Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 VB v Chief Executive Officer of the Department of Communities [2020] WASCA 146 -- 2 of 7 -- [2026] WASCA 78 REASONS OF THE COURT Page 3 REASONS OF THE COURT: 1 By cancellation notice dated 25 September 2025, a delegate of the respondent decided to cancel the appellant's firearm authority authorising him to possess a rifle. That decision was purportedly taken pursuant to s 192(1)(b) of the Firearms Act 2024 (WA) on the ground that the delegate had formed the opinion that the appellant was not a fit and proper person to hold a firearm authority. The cancellation notice was served on the appellant, and the rifle seized, by police officers on 30 September 2025. 2 On 29 October 2025, the appellant applied to the General Division of this court for judicial review of the cancellation decision. The grounds for judicial review included that the decision was made without complying with procedural requirements of the Firearms Act, that the decision took into account irrelevant considerations and failed to consider relevant material, that the decision was unreasonable, and that there had been a failure to accord procedural fairness to the appellant. 3 On 6 March 2026, the primary judge dismissed the appellant's judicial review application. The primary judge did so without considering the merits of the appellant's allegations of jurisdictional error, on the discretionary basis that there was an adequate alternative remedy available to the appellant. The alternative avenue of relief was an application to the State Administrative Tribunal for review of the cancellation decision, provided for by s 335 read with s 334 of the Firearms Act. 4 On 27 March 2026, the appellant appealed to this court against the dismissal of his judicial review application in the General Division. In essence, the appellant's grounds of appeal to this court contend that the primary judge erred in dismissing the judicial review application without considering whether the appellant's allegations of jurisdictional error were established. 5 On 22 May 2026, the acting Court of Appeal registrar issued a notice for the parties to attend a hearing for the court to consider whether the appeal should be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding. Rule 43(2)(g)(i) read with r 5A(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA) empowers the court to dismiss an appeal if none of the grounds of appeal has a reasonable prospect of succeeding. -- 3 of 7 -- [2026] WASCA 78 REASONS OF THE COURT Page 4 6 A ground of appeal has a reasonable prospect of succeeding for the purposes of r 43(2)(g)(i) if it has a rational or logical prospect of succeeding, ie it would not be irrational, fanciful or absurd to envisage the ground succeeding. A ground of appeal will only have a reasonable prospect of succeeding where, if upheld, the ground - either by itself or in combination with other grounds that have a rational and logical prospect of succeeding - would result in the primary court's judgment or order being disturbed.1 7 It is established that judicial review remedies will generally be denied in the exercise of the court's discretion where an adequate alternative remedy is available.2 8 In the present case, s 335 of the Firearms Act provides that a person aggrieved by a 'decision' can apply to the Tribunal for a review of the decision. The term 'decision' is relevantly defined in s 334 of that Act to mean a decision made by a delegate of the respondent under the Firearms Act. The decision to cancel the appellant's firearm authority was a reviewable decision in the Tribunal under these provisions. It would be a 'decision' capable of review by the Tribunal even if infected by jurisdictional error.3 9 Under s 27 and s 29 of the State Administrative Tribunal Act 2004 (WA), the Tribunal would consider the decision afresh based on the material before the Tribunal at the time of the decision upon the review. 10 Unlike the Supreme Court on a judicial review application, the Tribunal would not be confined to considering whether the Commissioner made a jurisdictional error or error of law on the face of the record. Rather, the Tribunal would consider for itself the substantive merits of the cancellation decision. 11 Also unlike the Supreme Court on a judicial review application, the Tribunal could substitute the decision which it considered to be correct and preferable, as opposed to quashing the decision of the respondent's delegate and then requiring the respondent to reconsider the decision. 1 See Farrant v Westpac Banking Corporation [2024] WASCA 157 [18] - [20]. 2 See, for example, Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [133] - [140] (Martin CJ, Wheeler JA agreeing); VB v Chief Executive Officer of the Department of Communities [2020] WASCA 146 [70]. 3 SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 [29], applying Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, 342 - 344 (Bowen CJ), 372 - 373 (Smithers J). -- 4 of 7 -- [2026] WASCA 78 REASONS OF THE COURT Page 5 12 These features make review by the Tribunal a more effective avenue for the appellant to challenge the cancellation decision made by the respondent's delegate than judicial review by the Supreme Court. That is so even if, as the appellant contends, the cancellation decision was infected by jurisdictional error. 13 In circumstances where an appropriate and more efficacious alternative remedy was available in the Tribunal, the primary judge was plainly correct to dismiss the application for judicial review in the exercise of his Honour's discretion. It was unnecessary for the primary judge to consider the merits of the appellant's allegations of jurisdictional error in those circumstances. 14 In his oral submissions, the appellant relied on s 19 of the SAT Act. Under s 19(1), the right to have a decision reviewed by the Tribunal does not exclude any right to take judicial review proceedings in relation to the decision. However, while the SAT Act does not exclude judicial review, it also does not derogate from the court's discretion to refuse to grant relief by way of judicial review on the ground that adequate alternative relief was available. 15 Section 19(3)(c) of the SAT Act provides that, if judicial review proceedings have commenced in relation to a reviewable decision, a Tribunal proceeding for the review of the decision cannot subsequently be commenced. However, this provision is qualified by s 19(5)(b), which provides that s 19(3)(c) does not apply if the judicial review proceedings are dismissed because the court considers them to be inappropriate or considers that a Tribunal proceeding would be more appropriate. 16 As the decision in Re Carey; Ex parte Exclude Holdings Pty Ltd illustrates, the discretion may be enlivened where the applicant for judicial review had an alternative avenue of redress available. The discretion is not necessarily excluded by the fact that the alternative avenue of redress may no longer be available at the time when the discretion is exercised. In any event, in the present case s 19(5)(b) allows the appellant to bring a review application in the Tribunal (subject to obtaining any required extension of time) despite the institution and dismissal of the primary proceedings. 17 We note that ground 4 of the appellant's appeal to this court, although inelegantly expressed, in effect contends that he was denied procedural fairness in the primary proceedings. In his written -- 5 of 7 -- [2026] WASCA 78 REASONS OF THE COURT Page 6 submissions, the appellant contends that, before the primary judge, he informed the court that he was having trouble hearing counsel for the respondent's submissions. He says that he had prepared responses to authorities that might be relied upon, including VB v Chief Executive Officer of the Department of Communities. The appellant contends that he did not hear that VB was being relied upon in the manner subsequently adopted by the primary judge and was therefore 'deprived of a meaningful opportunity to advance his prepared distinction'. He says that his 'prepared distinction was that VB concerned a matter overtaken by subsequent events, whereas the present challenge concerns an operative decision and an alleged failure to comply with a mandatory statutory precondition'. 18 There is no evidence (as opposed to an assertion in submissions) that the appellant did not hear, and therefore did not respond to, the reference to VB by counsel for the respondent. While he complained of difficulty in hearing early in counsel's submissions,4 the primary judge asked counsel to keep her voice up and asked the appellant to let his Honour know if he was still having a difficulty. The appellant did not raise any difficulty, and when later asked if he could hear counsel said that he could.5 19 In any event, even if it is assumed in the appellant's favour that he did not hear counsel's reference to VB, that case was only one of several cases on which counsel relied for the proposition referred to at [7] above. While VB was the only case referred to by the primary judge as an example of an authority for that proposition,6 the proposition is well established. In written submissions filed in the primary proceedings on 3 March 2026, the appellant accepted that 'judicial review is discretionary and that alternative remedies are relevant considerations'. He contended that the authorities relied on by the State for that proposition were to be distinguished on the basis that they 'concern circumstances in which no jurisdictional defect in the formation of power was alleged'. The appellant elaborated this point in his oral submissions before the primary judge.7 20 The appellant therefore can be seen to have appreciated the essential point being made by counsel for the respondent and addressed the issue in his submissions. Even if he did fail to hear the reference to 4 Primary ts 10. 5 Primary ts 12. 6 Primary decision [11]. 7 Primary ts 16 - 18. -- 6 of 7 -- [2026] WASCA 78 REASONS OF THE COURT Page 7 VB in counsel's oral submissions, he had a fair opportunity to respond to the case put against him. There was no arguable denial of procedural fairness in the proceedings before the primary judge. 21 Accordingly, none of the grounds of appeal has a reasonable prospect of succeeding and, at the conclusion of the hearing on 8 June 2026, we ordered that the appeal be dismissed. We considered that costs should follow the event, and ordered the appellant to pay the respondent's costs of the appeal fixed in the sum of $2,500 (which we considered a reasonable amount in the circumstances). I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LK Associate to the Hon Justice Mitchell 8 JUNE 2026 -- 7 of 7 --