Commissioner of Police, NSW Police Force v Holmes [2021] NSWCATAP 202

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner of Police, NSW Police Force v Holmes [2021] NSWCATAP 202 Hearing dates: 25 June 2021 Date of orders: 09 July 2021 Decision date: 09 July 2021 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President A Britton, Principal Member Decision: (1) The appeal is allowed. (2) The Tribunal's orders (2), (3) and (4) are set aside. (3) In substitution for those orders the following order is made: The application for review of the decision of the Commissioner of Police to require Mr Holmes to undertake a mental health risk assessment is dismissed for lack of jurisdiction. Catchwords: ADMINISTRATIVE LAW — jurisdictional error — merits review — jurisdiction of Civil and Administrative Tribunal — where Commissioner of Police required person whose firearms licence had been suspended to undertake a mental health risk assessment — whether that requirement amounts to/can be properly characterised as the imposition of a condition on the firearms licence — whether requirement purports to impose a condition on the licence Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2006 (NSW) Cases Cited: AQO v Minister for Finance and Services (2016) 93 NSWLR 46; [2016] NSWCA 248 Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; (1979) 24 ALR 307 Collins v Urban [2014] NSWCATAP 17 DHU v Commissioner of Police, NSW Police Service [2018] NSWCATAP 282 Dubow v Mid-Western Regional Council [2019] NSWCATAP 242 Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 Texts Cited: Nil Category: Principal judgment Parties: Commissioner of Police, NSW Police Force (Appellant) David Andrew Holmes (Respondent) Representation: Solicitors: Crown Solicitor (Appellant) Respondent (self-represented) File Number(s): 2021/00097374 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 71 Date of Decision: 19 March 2021 Before: Naida Isenberg, Senior Member File Number(s): 2021/00006048