Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Martin v Commissioner of Police [2020] NSWCATAD 193 Hearing dates: 21 July 2020 Date of orders: 21 July 2020 Decision date: 31 July 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: The request by Stephen James Martin to stay the decision made by the Commissioner of Police on 3 June 2020 to revoke the applicant's firearms dealers licence is refused. Catchwords: ADMINISTRATIVE REVIEW – firearms dealer – revocation of licence – stay – stay refused Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Cases Cited: Commissioner of Police v Joseph [2016] NSWCATAP 124 QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 Category: Procedural and other rulings Parties: Stephen James Martin (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Applicant (Self Represented) Maddocks Lawyers (Respondent) File Number(s): 2020/00197170 Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondent on 21 July 2020 on a confidential basis, to those paragraphs of these reasons identified as [Not for publication], to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to s 49. That material is not to be released to either the applicant or to the public. REASONS FOR DECISION 1. On 3 June 2020 the Commissioner for Police, NSW Police Force, acting on powers held under the Firearms Act 1996, revoked personal firearms licences held by Stephen James Martin and also revoked Mr Martin's firearms dealers licence. Mr Martin has made an application to the Tribunal for administrative review of those decisions under the Administrative Decisions Review Act 1997 (the ADR Act). 2. Mr Martin has asked that the decision to revoke his firearms dealers licence be stayed pending the outcome of the review. He does not seek a stay in relation to his personal firearms licences. 3. On 21 July 2020 I refused Mr Martin's request to make an order staying the operation of the decision to revoke his firearms dealers licence. These are my reasons for making that order. Background 1. Mr Martin has held personal firearms licences since 2010. In July 2018 he lodged an application for a firearms dealers licence. The licence was issued on 16 February 2019 for a period of five years. Mr Martin ran the dealership from his residential premises. 2. On 8 May 2019 police were called to Mr Martin's address where he and his wife, who are separated, were arguing. Police asked Mr Martin about the firearms stored at the location and he advised them that he was a firearms dealer. He also said that he would stay at a hotel overnight. The following day the licensing sergeant, Sgt Keevers, determined that Mr Martin's licence must be suspended because he was satisfied that there was reasonable cause to believe that Mr Martin had committed or had threatened to commit a domestic violence offence (see s 22(2) of the Firearms Act which provides for mandatory suspension in these circumstances). 3. When the firearms were seized it became apparent that a number were prohibited firearms and others were unregistered. On 16 May 2019 police asked Mr Martin to attend the police station the following day with records of transactions relating to his business which, as a firearms dealer, he is required to keep. Mr Martin was advised he must provide those records for inspection but failed to attend the police station as arranged. 4. On 5 June 2019 Mr Martin was made subject to a provisional apprehended violence order which was withdrawn/dismissed at Wollongong Local Court on 25 July 2019. 5. Arising out of the seizure of his firearms Mr Martin was charged with 33 offences relating to breaches of the firearms legislation including: 1. 15 charges pursuant to s 47(1) of the Firearms Act, being licensed firearms dealer failed to keep labels and records as required; 2. 15 charges pursuant to s36(1) of the Firearms Act, being possess unregistered firearm; 3. 1 charge pursuant to s45(6)(a) of the Firearms Act, being failure to produce records on demand of police officer; 4. 1 charge pursuant to s45(6)(c) of the Firearms Act, being dealer not provide information regarding firearms/barrels to police; 5. 1 charge pursuant to s66(1)(b) of the Firearms Act being use, supply, acquire or possess defaced firearm. 1. The charges are yet to be dealt with by the Local Court. 2. Mr Martin's firearms dealers licence, along with licences relating to his personal firearms, was revoked on 3 June 2020, a decision which was affirmed on internal review on 23 June 2020. Legal principles 1. The general rule is that an application for administrative review of a decision does not prevent the decision from taking effect. The Tribunal has power, however, to make an order "staying or otherwise affecting the operation of the decision under review" (s 60 of the ADR Act). 2. In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, an Appeal Panel of this Tribunal led by Wright J, summarised the considerations which should be applied when considering a stay in matters such as this as including: 1. whether the order is appropriate to secure the effectiveness of the determination of the application for review: s 60(2), ADR Act; 2. whether the order is desirable taking into account: 1. the interests of any persons who may be affected by the determination of the application for review: s 60(3)(a), ADR Act, Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday) at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; 2. any submission made by or on behalf of the administrator who made the decision to which the application relates: s 60(3)(b), ADR Act, Loveday at [10], Re Scott at [4]; 3. the public interest: s 60(3)(c), ADR Act, Loveday at [10], Re Scott at [4]; 1. the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4]. 1. The circumstances that are relevant in any particular case to the considerations identified above may well overlap or be interrelated. Submissions 1. Mr Martin's primary submission is that his dealers licence is his sole source of income and revocation of the license is having a substantial impact on the operation of his business. Mr Martin also disputes the legal and factual basis upon which the initial suspension and subsequent revocation of his firearms licences was based. In particular, he states that prior to 9 May 2019 he had in fact made applications to the Firearms Registry to register the firearms, that some were registered by that date and others were registered by the Registry shortly after. He also insists that he at all times complied with his legislative obligations as a firearms dealer and submits that the charges have been laid without any substantive basis. Mr Martin calls into question the bona fides of Sgt Keevers. 2. Mr Martin submits that his prospects of success in both the criminal and the review proceedings are good. 3. The Commissioner states that Mr Martin only had a licence to operate as a firearms dealer for about three months before his licence was suspended. During that time his business acquired 21 firearms and disposed of 6 firearms. There are charges against him in relation to fifteen of those firearms on the basis they were unregistered. The Commissioner states that it appears that Mr Martin did not derive any income from the purchase or sale of ammunition. The Commissioner submits that, in light of the relatively short period during which he operated the business and as Mr Martin has provided limited evidence to support his submissions that there has been a severe impact upon his business, there would not appear to be much effect upon his income arising from the revocation of his dealers licence. 4. The Commissioner submits that it is not in the public interest for a stay to be granted. The most significant issue is that Mr Martin is currently subject to 33 charges for offences under the Firearms Act in relation to his operations as a firearms dealer. He states that, despite being given opportunities to do so, Mr Martin has provided no evidence to, for example, support his claims that he had sent applications to the Firearms Registry to register the relevant firearms. The Commissioner also refers to information provided by Mr Martin in July 2010 on an application for a personal firearms licence which the Commissioner states was false. This, the Commissioner states, is a serious matter that is prescribed as an offence under s 70 of the Firearms Act and goes to Mr Martin's suitability to hold the licence. 5. The Commissioner contends that public confidence in the licensing system, and the standards which firearms dealers are required to meet, would be undermined if Mr Martin's stay application was granted, particularly in circumstances where he is subject to a significant number of criminal charges that have not yet been determined in the Local Court. 6. At the hearing of the stay application the Commissioner sought to rely upon additional confidential material which it was submitted was relevant to the application. 7. [NOT FOR PUBLICATION] 8. [NOT FOR PUBLICATION] 9. [NOT FOR PUBLICATION] 10. [NOT FOR PUBLICATION] Consideration 1. Mr Martin challenges the basis upon which the initial suspension and subsequent revocation of his license was made and submits that he has good prospects of success in both the criminal and the administrative review proceedings. He also makes certain allegations about the conduct of Sgt Keevers. 2. It is not open to me in considering the application for a stay to conduct a preliminary hearing on the merits of the substantive proceedings. When the matter comes before the Tribunal for hearing, it may receive fresh evidence in addition to that which was initially before the Commissioner. In that context it is difficult to determine the strength of Mr Martin's case. 3. Mr Martin has contended that he will suffer irreparable harm if a stay is not granted as the business is his sole source of income. The Commissioner concedes that there has been and is likely to continue to be an adverse impact upon Mr Martin's income. In the context where Mr Martin only held the dealers license for a short period of time before suspension, however, it is difficult to ascertain any real impact upon him as he has not provided any evidence of loss. This is particularly so, as the Commissioner points out, the volume of transactions engaged in during that three month period was low. I also note that there are no other employees of the business. I therefore do not consider this to be an important factor in the exercise of my discretion. 4. There is also no information before the Tribunal to indicate that Mr Martin would be unable to resume his business should the decision of the Commissioner be overturned on review. It is therefore not apparent in the circumstances that the review would be rendered pointless if a stay were not granted. 5. As a firearms dealer Mr Martin carries significant responsibilities. As was stated by the Appeal Panel in Commissioner of Police v Joseph [2016] NSWCATAP 124 at [53] firearms dealers must carry out their responsibilities with scrupulousness and strictly observe the manifold business requirements to which they are subject. This is because dealers provide the only lawful conduit for the passage of weapons to ordinary members of the community. 6. In that respect, whilst acknowledging that Mr Martin intends to vigorously defend the criminal charges against him, those charges are serious and go to the heart of his role as a firearms dealer. The integrity of the licensing system and public confidence in it depend on the lawfulness of the activities of those involved in the sale of firearms. 7. [NOT FOR PUBLICATION] 8. The number and seriousness of the charges brought against Mr Martin in conjunction with the confidential material provided by the Commissioner at the hearing lead me to conclude that it is not in the public interest for an order to be made staying the operation of the decision under review. This is particularly the case when the licence in question is that of a firearms dealer and in that context public safety is paramount. Orders 1. The request by Stephen James Martin to stay the decision made by the Commissioner of Police on 3 June 2020 to revoke the applicant's firearms dealers licence is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 31 July 2020