The High Court has set aside two decisions refusing Frank Brennan’s applications for a firearm certificate and to substitute a modern firearm for a grandfathered short firearm. Mr Justice Garrett Simons ruled that the decision-maker had failed to give adequate written reasons, making the statutory appeal process ineffective in the particular circumstances of the case.
The judgment, delivered on 8 February 2023, concerned applications made on 4 September 2020. Brennan had held a certificate for the grandfathered firearm before 19 November 2008 and was granted another certificate for it in February 2017. In July 2019, that certificate was amended to substitute a modern firearm. It expired in February 2020.
Brennan then applied for a new certificate for the grandfathered firearm and, at the same time, sought to substitute the modern firearm. The judge explained that the applications would have needed to be decided in sequence: first grant a certificate for the grandfathered firearm, then decide whether to substitute the modern firearm.
In correspondence from October to December 2020, the respondent referred to the earlier substitution and told Brennan that he would not receive a further licence for the original firearm. The judge said the correspondence appeared to suggest that the earlier substitution had barred any later application under the transitional, or “grandfathering”, provisions.
In the judicial review proceedings, however, the respondent advanced additional reasons for refusing the certificate application. These included concerns about the firearm’s condition and possible modifications, whether Brennan had a good reason to possess it if he intended to substitute another firearm, and whether the proposed substitutions would circumvent restrictions on short firearms. The judge found that those reasons were not apparent from the earlier correspondence and had been disclosed belatedly.
Under the Firearms Act 1925, an applicant must be informed in writing of the reason for a refusal. The judge held that the deficient reasons prevented Brennan from understanding the decisions and assessing whether to appeal to the District Court. It also risked surprising him with issues that had not been clearly raised. In those circumstances, the court rejected the respondent’s objection that Brennan should first have exhausted that appeal.
The court ordered that both decisions be set aside by certiorari and the matter remitted to a different decision-maker. The precise form of the order was to be discussed with counsel. The judge’s provisional view was that Brennan was entitled to his costs, with a further hearing listed for 22 February 2023 if the respondent wished to argue for a different costs order.
The court did not decide whether the legislation permits a modern firearm to be substituted for a grandfathered short firearm. The judgment expressly leaves that statutory interpretation question open.