Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Selmes v Commissioner of Police, NSW Police Force [2021] NSWCATAD 360 Hearing dates: 4 November 2021 Date of orders: 03 December 2021 Decision date: 03 December 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: J D Little, Senior Member Decision: (1) The decision under review is set aside. (2) A category AB firearms licence is to be issued to the Applicant. Catchwords: ADMINISTRATIVE REVIEW – firearms licence – revocation – whether applicant fit and proper person – whether in the public interest to continue to hold a licence – whether risk to public safety Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Cases Cited: AML v Commissioner of Police, New South Wales Police Force Attorney-General (NSW) v Quin (1990) 170 CLR 1 Aubrey v Commissioner of Police [2005] NSWADT 266 Australian Broadcasting Tribunal v Bond [1990] HCA 33 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Cramp v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 133 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Green v Commissioner of Police, New South Wales [2014] NSWCATAD 59 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Hook v Commissioner of Police [2020] NSWCATAD 250 Johnston v Commissioner of Police [2021] NSWCATAD 231 Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 Kogias v Commissioner of Police [2020] NSWCATAD 297 Legione v Hateley (1983) 152 CLR 406 Lonsdale v University of Sydney [2015] NSWCATAP 277 Lukas v Commissioner of Police [2021] NSWCATAD 268 Martin v Commissioner of Police, New South Wales Police Force Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212, (1981) 61 FLR 354 Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 Saxby v Commissioner of Police [2021] NSWCATAD 275 Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184 Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 TG & GG v Minister for Community Services [2002] NSWCA 247 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 Texts Cited: Halsbury's Laws of England, 4th ed, Vol 44 Category: Principal judgment Parties: Peter Selmes (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Hartmann & Associates Solicitors (Applicant) McCullough Robertson Lawyers (Respondent) File Number(s): 2021/00212970 Publication restriction: Nil REASONS FOR DECISION 1. This is an application by Mr Peter Selmes (the Applicant) seeking administrative review of a decision by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Act) to refuse his application for a Category AB firearms licence. Background 1. By the time that the Applicant was 18 years of age in 1988, he held a firearms licence. This was in the context of being raised on a large property where firearms were part of his family life. 2. It was also at this time that the Applicant was first diagnosed with depression and was prescribed with antidepressants by his doctor. While the medications and dose volumes have varied over time as new treatments became available - the use of medication to treat his depression has continued since he was 18 years of age. The taking of such medication was described by the Applicant in his oral evidence as "a daily occurrence". 3. On three occasions, between August 2003 to October 2020, the Applicant re-applied for, and was granted a Category AB firearms licence for the reason of recreational hunting/ vermin control, based on permission to shoot on rural land. Those applications were dated 6 August 2003, 28 May 2008 and 29 August 2010. 4. In all three of those applications, a question was asked as to whether the Applicant had in NSW or elsewhere been referred or treated for alcoholism, drug dependence, or mental or nervous disorder? The form of question changed over time with: 1. the "2003 application" and "2010 application" limiting the question to a time period of 12 months; and 2. the "2008 application" and "2010 application" both including a reference to a mental or nervous "illness" unlike the "2003 application". 1. Apart from these changes, the form of the question was substantially the same. 2. In all three instances, the Applicant answered "no". The first suspension 1. On 9 November 2012, the Applicant's (then) wife contacted the police and reported that the Applicant, who she explained suffered from depression, had walked into the bushland behind their shared residence after making a threat of self-harm. 2. Following that report, the police attended the Applicant's residence and a short time later the Applicant returned from the bushland of his own accord. The police then informed the Applicant that he would need to attend hospital to be assessed. The Applicant was assessed and released the next day. 3. The Applicant provides a different version of the events preceding the attendance of the police at his residence on 9 November 2012. According to the Applicant, he was upset by an incident that had occurred while volunteering at the Orange Go Kart Club as he had been abused by a go kart competitor. The Applicant's evidence is that he felt the need to be alone so he went for a walk in the bushland behind his home and it was at this time that his wife called the police. When he returned, the police were at his property. The Applicant informed the Tribunal that he is unsure of why his wife felt the need to contact the police on that occasion. 4. In either version, the Applicant did not have a firearm in his possession during the events of 9 November 2012 and did not cause harm to himself or anyone else. 5. In any case, because of the events of 9 November 2012, the Applicant's firearms licence was suspended on 12 November 2012 by the Commissioner. 6. On 3 January 2013, the First Suspension was lifted following receipt by the Commissioner of a medical assessment of the Applicant by Dr Neil Phillips. 7. In that medical assessment, Dr Phillips identified the Applicant's depression as Bipolar II Disorder. Dr Phillips opined, amongst other conclusions, that he did not think that the Applicant's disorder had any impact on his ability to exercise continuous and responsible control over firearms nor posed any risk to public safety. In this regard, Dr Phillips noted that the Applicant had "no history at all of actual self-harm". 8. In August 2015, the Applicant re-applied for, and was granted a Category AB firearms licence for the reason of recreational hunting/ vermin control. That application was dated 17 August 2015. 9. In respect of that application, the Applicant answered "no" to the following questions: "Have you in NSW or elsewhere been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?" "Have you in NSW or elsewhere … ever attempted suicide or self harm, or in the past 12 months been referred or treated for alcoholism, drug dependence, or a mental or nervous disorder or illness?" 1. On or around 12 September 2015, the Applicant's application was granted. 2. On or around 14 February 2017, the Applicant lodged an Application for a Personal Firearms Licence seeking to add a new genuine reason being "Sport/ Target Shooting" to his existing firearms licence. In respect of that application, the Applicant again answered "no" to the questions described at paragraph 16. 3. From at least this time, the Applicant as well as his sons competed at a representative standard in sport/ target shooting. They have represented the Sporting Shooters Association of Australia (Orange Branch), the Western Sydney Rifle Club, and the Rimfire Benchrest Australia Club 4. In 2019, the Applicant (as well as his sons) represented Australia in South Africa at the World Rimfire and Air Rifle Benchrest Federation Championships. The Applicant's eldest son won three silver medals. 5. In 2018 and 2019, the Applicant and his two sons also competed in competitions in New South Wales, Queensland and Victoria. The second suspension and revocation 1. By 9 April 2020, the Applicant had recently separated from his wife. The Applicant's wife was residing in what was previously their shared home with their children, and the Applicant was living in a shed on the same property about 100 metres from the main house. 2. The day prior to 9 April 2020, the Applicant had resigned from his job. 3. In the evening of 9 April 2020, the Applicant sent text messages to friends one of which stated that the Applicant "felt like throwing the towel in". 4. A co-worker of the Applicant who had received such a text message attempted to call the Applicant but could not reach him. They subsequently contacted the police. The police visited the Applicant's property who was in the shed that he was using as his residence at that time. 5. Prior to approaching the Applicant in the shed, the police spoke with family members in the main house and took steps to ensure that the firearms on the premises were secured. 6. When the police approached the Applicant, he was "calm and co-operative" as recorded in the police report. The Applicant informed the police that he was having thoughts of self harm and felt "he was better off dead". 7. As with the events of November 2012, the Applicant did not have a firearm in his possession during the events of 9 April 2020 and did not cause harm to himself or anyone else. 8. The Applicant was admitted to hospital for suicidal ideation and assessment. Two days later, on 11 April 2020, he was discharged. 9. On 14 April 2020, the Applicant was informed of the Commissioner's concerns related to the Applicant's mental health considering the events of 9 April 2020 and of the suspension of his firearms licence. The correspondence enclosed, amongst other documents, a letter directed to the Applicant's general practitioner and a risk assessment questionnaire to be completed by a psychiatrist or psychologist and instructions as to what steps were required for the Commissioner to give consideration as to whether the suspension should be lifted. 10. On 10 August 2020, and in the context of attempting to answer the concerns regarding the Applicant's mental health, the Applicant provided to the Firearms Registry a report of Dr Tristram Duncan, Consultant Psychiatrist dated 22 June 2020 answering the questions posed in the risk assessment questionnaire described at paragraph 30 (First Duncan Report). 11. By the time of the First Duncan Report, Dr Duncan has been treating the Applicant for a period of approximately two and a half months. Dr Duncan opined, amongst other things, that: 1. "Since my involvement with [the Applicant], suicidal ideation has not been present" 2. "Consistently over three reviews to date [the Applicant] has indicated that there has not been a return of any suicidal thoughts. During that period of time he has had the opportunity to re-expose himself to the situational stressors that were considered to have led to his increased distress and expressions as stated in the documents you provided. [The Applicant] reports and has been observed to not have once again experienced suicidal ideation in the context of exposure to these prominent stresses." 3. "I do not believe that [the Applicant] is a risk at this time, and I have not held concerns during the period I have been treating him that he would not have otherwise had the ability to exercise continuous and responsible control over firearms." 4. "Considering his prolonged depression course the question regarding relapse of depression as a syndrome is not easily answered. As depression is relapsing and remitting in nature and as has been evident by [the Applicant] course to date is influenced by internal factors, there is the potential to see a depressive relapse in the future. The propensity for this occurring will potentially be mitigated by positive engagement with psychotherapeutic programs as well as ongoing engagement with treatment and management through biological processes" 5. "[The Applicant] maintains that, although statements [related to self-harm] … were made, [there was] not the intention to utilise firearms or indeed to follow through with the same. Therefore, the question of relapse pertains more so to depression as a whole rather than risk related to firearm position" 6. In Dr Duncan's expert medical opinion, the Applicant's condition or impairment does not have the potential to put public safety at risk if the Applicant were to have possession and use of firearm. 1. Despite the First Duncan Report, on 20 August 2020, the Commissioner revoked the Applicant's firearms licence under s 24(2)(d) of the Act and clause 20 of the Firearms Regulation 2017 (NSW). The Applicant was notified on or around 2 September 2020. That decision is not the subject of this review. 2. Further correspondence was sent to the Firearm Registry on behalf of the Applicant from his solicitors including further updated reports of Dr Duncan dated 17 September 2020 (Second Duncan Report) and 18 February 2021 (Third Duncan Report) as well as four character references speaking highly of the Applicant. These documents are before the Tribunal as part as part of the material lodged by the Commissioner pursuant to s58(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). New application and refusal 1. On or about 28 February 2021, the Applicant re-applied for a firearms licence. 2. In respect of that application, the Applicant answered the following questions as described below: "Do you have any health conditions which may prevent you from exercising continuous and responsible control over firearms? Yes" "Health Condition Details: Suffer mental health" "Have you, in the past 12 months, been referred or treated for a mental or nervous disorder or illness? Yes" "Mental Illness Details: Assessed on mental health grounds Depression and anxiety Regular support from GP and mental health specialist Effexor and Valdoxan medications" "Have you ever had a a firearms licence or permit suspended or revoked whether in NSW or elsewhere? Yes" "Suspended Licence Details: Licence was suspended than revoked on mental health grounds" 1. Additionally, the application included the contact details of Dr Duncan. 2. On 7 March 2021, the Commissioner refused the Applicant's application relying upon s11(7) of the Act. The Commissioner found that the Applicant's mental health created an unreasonable risk to public safety, including the Applicant's safety and as such, granting the Applicant's application was contrary to the public interest. 3. On 17 March 2021, the Applicant sought internal review of the Commissioner's decision and an extension of time was granted to 21 June 2021. As the Applicant was not notified of the outcome of that review within 21 days of that extension, it was taken to be finalised on 12 July 2021 pursuant to s53(9) of the ADR Act. Legislation 1. Section 11(7) of the Act relevantly provides that "the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest." 2. Section 3(1) of the Act provides guidance as to how the Act is to be administered which declares that firearms possession and use is "conditional on the overriding need to ensure public safety". 3. Consistently with that approach, s11(3) of the Act states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. 4. It is in this context that the Commissioner's power to refuse to issue a licence must be applied and to determine whether considerations of public interest or concern for public safety justify the refusal. 5. Accordingly, the issue to be addressed by the Tribunal involves considerations of public interest including whether any concerns for the risk of public safety justify the refusal. However, it is necessary to adopt a balanced view of any identifiable risk bearing in mind all relevant circumstances: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32] (Webb) 6. The Applicant's application for review of the of the Commissioner's refusal is pursuant to s 75(1)(a) of the Act and s 55 of the ADR Act Tribunal review 1. The Tribunal has jurisdiction to hear and determine this application by reason of s75(1)(a) of the Act and s9(1) of the ADR Act. Pursuant to s63 of the ADR Act, the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, whether the Commissioner's decision is the correct and preferable one. 2. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: Civil and Administrative Tribunal Act 2013, s 38(2) (CAT Act). Evidence Objection 1. A preliminary issue arose by way of an objection to evidence made on behalf of the Applicant. This objection pertained to the Commissioner's reliance on the previous applications for firearm licences made by the Applicant as described at paragraphs 4 to 7, 15 and 18 above (the Previous Applications). 2. The Applicant's objection was to the Commissioner's tender and reliance on evidence that was unrelated to mental health grounds. 3. The conduct and/or representation was said to arise because of the express reasons given by the Commissioner for the revocation and refusal (being limited to mental health grounds) in the context of the Firearms Registry having, at all material times, possession of the Previous Applications in which the Applicant allegedly incorrectly answered questions. 4. The Applicant argues that despite having the Previous Applications, the Commissioner chose not to expressly refuse the Applicant's licence application based on incorrectly answered questions but chose to only raise mental health grounds. This conduct and/ or representation, as contended by the Applicant, led to the assumption of the Applicant that the Commissioner would not rely upon the incorrectly answered questions. As articulated in the written submission of the Applicant: ".. the registry has chosen not to consider that particular reason [of answering questions incorrectly], when there is no issue that they had all information pertaining to it and is therefore estopped from raising it now". 1. According to the Applicant, the Commissioner is thereby restrained by a type of estoppel. While the Applicant did not identify the genus of estoppel upon which reliance was placed, given the matters referred to, the submissions of the Applicant are framed with reference to either estoppel by representation or estoppel by conduct. 2. There is no legal basis for fettering the Commissioner's discretion (or, for that matter the Tribunal's discretion) in the manner contended by the Applicant and I reject the objection. The Applicant requested that I give written reasons in this decision which follow. 3. First, the imposition of an estoppel which effectively limits the issues that may be raised before this Tribunal is inconsistent with the statutory duty and discretion afforded to it and is an impermissible limitation on its ability to make "the correct and preferable decision" in all the circumstances: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17. 4. This is evident from an analysis of the jurisdiction of the Tribunal and the legislative scheme. 5. As noted above, the Tribunal has jurisdiction to hear and determine this application by reason of s75(1)(a) of the Act and s9(1) of the ADR Act. Pursuant to s63 of the ADR Act, the Tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, whether the Commissioner's decision is the correct and preferable one. 6. The hearing to make this determination is a "hearing de novo" in which the Tribunal is to review the merits of the original decision and consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. This if often referred to as "stepping into the shoes of the original decision maker"." 7. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal may determine its own procedure in relation to any matter for which the CAT Act or procedural rules do not otherwise make provision: CAT Act, s 38(2). 8. The material the Tribunal may consider, and therefore the material that a party may put before the Tribunal, includes material that now exists but which did not exist at the time of the decision being reviewed and material that was otherwise not considered by the relevant administrator. This was made clear by the Court of Appeal of New South Wales in TG & GG v Minister for Community Services [2002] NSWCA 247 at [25], Hodgson JA (with whom Foster and Brownie AJJA agreed). In these circumstances, an estoppel cannot arise to preclude what might be put before the Tribunal where fresh material is expressly contemplated by the review regime. 9. To find otherwise effectively binds this Tribunal to determining the "correct and preferable decision" by reference only to the ambit and materials referred to by the Commissioner. This is inconsistent, not only with the legislative scheme - but inconsistent with the character of this hearing as a "hearing de novo". Such an outcome would be lacking in coherency with this Tribunal's powers including, amongst others, the power to make a different decision than the original decision-maker on a different basis and based upon different material: s63(3) ADR. To find that this Tribunal is restricted in that manner would be an impermissible fetter upon the future exercise of discretion conferred by the CAT Act, ADR Act and the Act. 10. It would also be inconsistent with the legislative scheme pertaining to production. Section 58(1)(b) of the ADR Act requires the administrator (in this case, the Commissioner) whose decision is the subject of an application for review to lodge with the Tribunal, within 28 days after receiving notice of the application a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. As stated by the Appeal Panel in Lonsdale v University of Sydney [2015] NSWCATAP 277: "The review jurisdiction of the Tribunal is not strictly adversarial in the way seen, for example, in civil jurisdictions such as consumer claims or home building disputes. The object of the proceedings is to ascertain the 'correct and preferable' administrative decision having regard to 'all relevant factual material' and 'any applicable written or unwritten law': Administrative Decisions Review Act 1997, s 63. To that end, the agency is obliged to furnish to the Tribunal all material in its possession that it considers relevant to the proceedings: s 58. The Tribunal has an active role to play in scrutinising and assessing the documents for which protection is sought, and forming a view as to what might be relevant to its consideration of the matter." 1. To find that the Commissioner is estopped in respect of the material that may be put before the Tribunal sits uneasily with his obligations to produce all such relevant documentation pursuant to s 58 of the ADR Act. It cannot be correct that the Commissioner, on the one hand, is compelled to act in a certain manner while simultaneously being estopped from acting in that same manner. Rather, s 58 of the ADR is consistent with the jurisdiction of the Tribunal and its power to consider the evidence available at that time, together with any other or later material, to affirm the original decision, vary it or set it aside 2. As such, and in all the circumstances, to find that the Commissioner (or this Tribunal) is estopped in the manner contended by the Applicant, would render the power of reconsideration inutile or, at least, substantially dimmish its operative effect. As noted in Halsbury's Laws of England, 4th ed, Vol 44 "Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public" 1. This was acknowledged as the generally accepted view by Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 at 109. See also Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17 and Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212, (1981) 61 FLR 354 at 359. 2. Consistent with my findings, I note that where similar submissions based on estoppel have been made in this Tribunal in respect of proceedings related to the Act, the contention has been rejected: Green v Commissioner of Police, New South Wales [2014] NSWCATAD 59; Cramp v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 133 at [67]; Johnston v Commissioner of Police [2021] NSWCATAD 231 at [68], [72]. 3. Secondly, even if an estoppel by representation or an estoppel by conduct could arise in the manner submitted by the Applicant as a matter of principle (which is rejected), it would still fail in the current circumstances as a matter of fact. 4. To make out an estoppel by convention, there must be (a) a basis to find that the alleged representation was made, or the alleged conduct performed (2) that alleged representation or conduct induces another to make an assumption for the purpose of their legal relations that a particular state of affairs exists; and (3) the other has acted in reliance on the assumption and would suffer detriment if departure from the assumption were allowed: Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 674. 5. The Applicant's submissions fail at the first threshold in either case for want of sufficiently clear and unambiguous conduct or representation to the effect contended for: Legione v Hateley (1983) 152 CLR 406 at 435-7. 6. The terms of the revocation of 20 August 2021 and refusal of 7 March 2021 and related correspondence provide reasons for the Commissioner's revocation and refusal (as the case may be) but there is no representation as to the Commissioner's future conduct nor a concession that the Commissioner agreed to limit its powers of review. It is uncontroversial that an estoppel by representation may be founded upon an implication drawn from an express statement, but I do not see on the face of the documents relied upon any ground to draw this implication. 7. To the contrary, both documents expressly provide a summary of the Applicant's right of internal review under s 53 of the ADR Act or the additional right of review under the ADR Act to apply to this Tribunal where the Tribunal stands in the stead of the Commissioner. References to that review regime run counter to the contention that the revocation and refusal contain representations or amount to conduct whereby either the Commissioner (or this Tribunal) had agreed to limit any future review to the specific ground of mental health and that any future exercise of discretion on review had been fettered so as not to include any evidence of incorrectly answered questions. 8. The Applicant's objection than fails at the second threshold for want of evidence of any assumption made by the Applicant that the Commissioner (or this Tribunal) had foregone any discretion to consider the material evidencing the incorrectly answered questions. It fails because to make out this factual integer, the Applicant would need to have been aware, at the material times, that the Commissioner had in his possession material evidencing the incorrectly answered questions. However, the oral evidence of the Applicant in respect of the applications dated 6 August 2003, 28 May 2008 and 29 August 2010 was that he did not accept that he knowingly gave a false answer to the questions relating to his treatment for a mental disorder as he did not and does not consider the taking of medication to be a form of "treatment". 9. In respect of the applications of 17 August 2015 and 14 February 2017, the Applicant admitted in cross-examination that he had made a mistake in representing that his firearms licence had not been suspended but that this realisation was a new one given that he denied that he knew that he had given false answers at the time of the applications. 10. In those circumstances, it cannot be correct that the Applicant assumed that the Commissioner had foregone any opportunity to rely upon material evidencing incorrectly answered questions when, according to the Applicant, he was not aware that the Commissioner was in possession of that evidence at all. 11. In those circumstances, there was no reliance. 12. As for detriment, the objection also fails. In this regard, the Applicant relies on procedural unfairness because the submission of the Commissioner was raised "late". I reject this contention. In this respect, I note that: 1. The Previous Applications were served on the Applicant as part of the "s 58 Bundle" on or around 13 September 2021; 2. The Applicant had the opportunity to file and serve evidence, statements, documents and submissions on which he wished to rely by 28 September 2021 but declined to do so; 3. The Commissioner served his submissions pursuant to the Tribunal timetable on 26 October 2021; 4. The Applicant served submissions in reply on 26 October 2021; and 5. The matter was set down for hearing on 4 November 2021. 1. As such, the Applicant had approximately two months from the date of service of the "s 58 Bundle" to obtain instructions in respect of those materials and a week and a half from the service of the Commissioner's submissions to take any other steps that he wished to take. 2. Additionally, the Tribunal indicated, at the hearing that if the Applicant required more time to deal with the allegations related to the Previous Applications, that the Applicant may make an application for an adjournment of the hearing and seek an extension of time to obtain instructions, put on evidence in reply and any further submissions in reply. Such a course, if required and was consistent with natural justice, would have provided the Applicant with additional time, while preserving the Commissioner's right to be heard in respect of the allegations related to the Previous Applications. 3. The Applicant declined to make such an application. I infer, from this disinclination, that no such extension would have assisted him in the presentation of his case. 4. Lastly, the objection fails as a matter of principle as in respect of either an estoppel by representation or an estoppel by conduct, an estoppel may only arise where the assumption which is created by the representation or conduct is to an existing state of affairs and not a representation as to future conduct: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 398 per Mason CJ and Wilson J, at 415 per Brennan J. Properly construed, the alleged representation of the Commissioner is that he would not rely upon the Previous Applications in any future review including tendering that material in this Tribunal. This is a representation as to future conduct and cannot give rise to an estoppel. 5. For those reasons, I reject the objection based upon an alleged estoppel and procedural fairness. 6. I further find that the Previous Applications are relevant to the proceedings in any case as they evidence the Applicant's long history of holding a firearms license and the purpose for which they were obtained. Those factual matters are relevant irrespective of the Commissioner's reliance on those documents in support of his allegations that they record incorrect information. The evidence before the Tribunal 1. In addition to the material lodged by the Commissioner pursuant to s58(1) of the ADR Act (Exhibit R1), the Commissioner relies upon his written submissions (Exhibit R2). 2. The Applicant relies on: 1. Written submissions entitled "Submissions of the Applicant" dated 26 October 2021 (Exhibit A1); 2. Two letters sent to the NSW Firearms as part of his submissions which are part of the material lodged by the Commissioner pursuant to s58(1) of the ADR Act. These letters are dated 22 September 2020 and 18 June 2021. 3. Statement by the Applicant filed on 6 October 2021 attaching a Report of Dr Tristram Duncan dated 11 June 2021 (Exhibit A2) 1. Additionally, the Applicant was cross-examined during the hearing by the Commissioner's representative. Dr Duncan was not cross-examined, and his evidence was not challenged. Submissions The Commissioner's submissions 1. In making the case that the Commissioner's decision to refuse the Applicant's application for a Category AB firearms licence under s 11(7) of the Act is correct and preferable, the Commissioner makes the following submissions: 1. The Applicant's mental health status creates an unreasonable risk to public safety, including to the Applicant's own safety, if he was authorised to possess and use a firearm. 2. The Applicant is not a fit and proper person and nor is it in the public interest for the Applicant to hold a firearms licence given that the Applicant knowingly provided false and misleading information by virtue of the Previous Application showing his disregard for the provisions of the Act 1. In respect of the Applicant's mental health status, the Commissioner accepts that "for the most part, the Applicant's treatment for his depression appears to have been effective" however it is contended that the Applicant's past history as well as the Report of Dr Tristram Duncan dated 11 June 2021 (Fourth Duncan Report) does not led to the conclusion that there is "virtually no risk to the public" which, according to the Commissioner, is the relevant standard to assess risk. In this respect, the representative for the Commissioner draws the Tribunal's attention to the qualified wording of the Second Duncan Report where Dr Duncan opines that the Applicant is "unlikely to pose a threat" and the Applicant's level of risk as "virtually non-existent". 2. In respect of the claim that the Applicant knowingly provided false and misleading information in the Previous Applications, the Commissioner submits that the evidence supports that the Applicant has insufficient regard to the importance of the provisions of the Act and the licensing regime which relies on participants providing true and correct information. In these circumstances, it is appropriate to find that the Applicant is not a fit and proper person and nor is it in the public interest for the Applicant to hold a firearms licence. The Applicant relies upon several authorities in this respect including Saxby v Commissioner of Police [2021] NSWCATAD 275 at [74] to [77] (Saxby), Kogias v Commissioner of Police [2020] NSWCATAD 297 at [101] to [115] and Lukas v Commissioner of Police [2021] NSWCATAD 268 at [82] to [85]. The Applicant's submissions 1. The Applicant resists the position propounded by the Commissioner. In respect of the Commissioner's mental health concerns, reliance is placed on Dr Duncan's First, Second, Third and Fourth Duncan Report. 2. By the time of the Fourth Duncan Report, Dr Duncan had been treating the Applicant for over a year. In the Fourth Duncan Report, Dr Duncan provides a detailed history of the Applicant as well as the events leading to the First and the Second Suspension. As part of that history, Dr Duncan notes that the Applicant does not have a criminal history, there is no current or recent use of drugs or alcohol in his history and there is no evidence of the Applicant posing a threat to himself or the public and no indication that, that would change if he were in possession or control of a firearm. 3. Dr Duncan reports that during the lead up to the events in April 2020, the Applicant had periods where he thought he would be "better off dead" but firmly denied this ever progressing to any plans or intent in association with the same and never progressed to any formal ideas of how this may occur. The Applicant cited his children as his protective factor and consideration of the impact of suicide upon them as the overall deterrent. 4. Amongst the opinions of Dr Duncan are: 1. "Following the formal completion of separation from his wife as well as gaining his own independence, [the Applicant's] mood has remained stable … There has not been any further expression or described experience of suicidal ideation." 2. "With regard to the presentation and issues in April 2020, there were a number of precipitating and perpetuating factors that influenced his overall presentation. As described previously, these included a gradually deteriorating mood in the context of multiple situational stressors, particularly those around employment, financial and relationship concerns … Since that time, many of these factors have been addressed… No other particular stressors or concerns outside of his desire to return to the use of firearms for his engagement in sport, [are] causing him any concern" 3. "It is my professional opinion that [the Applicant] would be able to exercise rational judgement and responsible control over the possession and use of firearms. The depressive symptomatology that was previously suffered is well managed and controlled, and has been in remission now for over a twelve-month period… It is my opinion therefore that [the Applicant] is unlikely to pose a threat to the public or himself if he were to possess or use firearms. I assess his level of risk as virtually non-existent" 1. Relying on this evidence, the Applicant contends that he does not pose a risk to the public if he was issued with a licence. 2. In respect of the Commissioner's allegations concerning the Applicant's character and that the Applicant knowingly provided false and misleading information by virtue of the Previous Application - the Applicant denied that, to the extent it was false, it was not knowingly false. 3. In his oral evidence, the Applicant denied that he knowingly gave false or misleading information to the questions relating to his treatment for a mental disorder because he did not consider the taking of medication to be a form of "treatment". In this regard, he described his taking of medication as a "daily occurrence" or part of his "daily routine" and something that he had been doing since the age of 18 years old. It did not occur to him that the taking of his medication was something that would be captured by the meaning of "treatment" which he related to a more formal or intrusive means of medical intervention. 4. In respect of answering "no" to the question "Have you in NSW or elsewhere been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?" in the applications dated 17 August 2015 and 14 February 2017, the Applicant admitted that he had made a mistake as his licence had been suspended but he maintained that the error was not intentional and that he "may not have closely read [the question] correctly" in the context of being a "poor reader". 5. Based on this evidence, the Applicant submitted that it was not a clear case of deceit but a case of honest and reasonable mistakes in a situation of naivety. In those circumstances the benefit of any presumption should be provided to the Applicant. In this respect to Applicant relied upon Hook v Commissioner of Police [2020] NSWCATAD 250 (Hook). 6. The Applicant further contended that in any case, the Commissioner can be assured that the Applicant would never answer questions incorrectly. 7. The Applicant also relied upon evidence going to his character generally and the contribution he makes to his community as a firearms licence holder. In the Applicant's Statement he gives evidence of the assistance he gave, prior to the revocation of his firearms licence, to others in carrying out vermin control which required the use of a firearm and of his extensive history of volunteering in the community. The character references also evidence this contribution including: 1. Volunteering one Sunday a month as a range officer at the Sporting Shooters Association of Australia, Orange (Western Sydney Rifle Club) to perform a variety of roles including signing in attendees, checking licence's, organising the range and being responsible for safety. 2. Volunteering to run competitions at the Western Sydney Rifle Club. 3. Volunteering, when required, to undertake maintenance of the range, free of charge, and volunteering his bobcat and ride on mower for this purpose. 4. Coaching his sons who have reached a national and international level in target shooting. Consideration Mental health grounds 1. The Commissioner's first objection to the Applicant holding a firearms licence was in relation to his alleged contemplation of self harm in 2012 and more recently in 2020, as well as the potential that a relapse may reoccur in consideration of the Applicant's mental health issues. 2. The expression "public interest" is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the 'public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24]. 3. When considering whether there is a reasonable risk to the public, the Tribunal should consider the risk to the Applicant himself, as a "member of the public": Kavalieratos v Commissioner of Police, NSW Police Force [2014] NSWCATAD 117 at [74]. 4. I accept that the Applicant's interest in shooting is a long-standing one dating from his youth. He also has an interest to have a licence as a volunteer in vermin control, as a range officer, as a competitive target shooter and so as allow his youngest son, who is a minor, to continue in sport shooting also. I also accept Dr Duncan's evidence that the issue of a firearms licence assists with the Applicant's mental health. 5. As stated in Saxby at [92]: Private interests, however, are not the only matters to be taken into account and the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond an applicant's character to be taken into account. They include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for 'the good order of society and for the well-being of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. 1. Accordingly, the Applicant's genuine reason for holding a firearms licence cannot be given priority over the public interest. As observed by the Tribunal in Aubrey v Commissioner of Police [2005] NSWADT 266 at [21] "where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm". 1. The Commissioner submitted that, despite Dr Duncan's evidence there is too much uncertainty regarding the Applicant's mental health for the Commissioner to be satisfied that there is "virtually no risk" to public safety if the Applicant was granted a firearms licence. 2. The Commissioner accepts, however, that the Applicant's treatment for his depression has been effective. In accepting that proposition the Commission accepts that to the extent that the Applicant's depression potentially creates a public risk, that risk does not currently exist. 3. Rather, the Commissioner relies on the qualified language of Dr Duncan as to the possibility of relapse (i.e. "the Applicant is "unlikely to pose a threat" and the Applicant's level of risk as "virtually non-existent") as providing a basis to find that it cannot be said that in respect of the risk of relapse, there is virtually no risk. 4. However, inherent in the Commissioner's submissions is an assumption that if the Applicant did relapse, that would give rise to the requisite risk to the public. I reject this contention. 5. There was no evidence that the Applicant has at any time, taken any steps to engage in self-harm. I am satisfied that the events of 9 April 2020, at most, was a "veiled threat" of suicide, but was more likely a cri de coeur in relation to his marriage separation and dissatisfaction with his employment leading him to resign from his job. As recorded in the Fourth Duncan Report, while the Applicant had had periods where he thought he would be "better off dead" this did not progress to any plan or intent to do so. The Applicant cited his children as his protective factor and consideration of the impact of suicide upon them as the overall deterrent. 6. In respect of the events of 9 November 2012, the evidence is inconsistent as described at paragraph 9 and 10 and is insufficient for me to make a positive finding as to whether the Applicant contemplated self-harm at all. 7. In any case, on neither occasion, did the Applicant cause any self-harm, nor did either event involve a firearm, or involve the Applicant attempting to access a firearm. 8. In respect of any risk to others, the Applicant does not have a criminal history, there is no current or recent use of drugs or alcohol and the character references of the Applicant describe him as a generous, helpful and supportive individual who assists his friends and community. He is described as a "perfect example of responsible gun ownership" by the President of the Western Sydney Rifle Club. 9. In the present circumstances, I find that even if a relapse in the Applicant's depression occurred, the evidence is insufficient to support a conclusion that there would be an unreasonable risk to either the public's safety or the Applicant's own safety, if the Applicant was authorised to possess and use a firearm. 10. Even if I was satisfied that the risk of a relapse in the Applicant's depression would automatically give rise to the conclusion that a risk to the public arises (which I reject), Dr Duncan's evidence is that the risk of relapse is "virtually non-existent" in any case. 11. The Commissioner's reliance on the qualified language of Dr Duncan to submit that even if the report of Dr Duncan is accepted, it is right to refuse the Applicant a gun licence is misconceived. Reliance in this regard is placed on the oft cited decision of Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] (Ward) where Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". 12. Since then, however, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7] that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because Her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. The "virtually no risk" comment was made in the context of the "fit and proper person" test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Act and comments in cases should not be substituted for those tests. 13. It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative. 14. Rather, as stated in Webb at [32] when considering the question of public safety: "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". 1. I find that given the evidence of Dr Duncan, which was unchallenged and expressly accepted by the Commissioner, any risk of relapse is minimal and may be excluded from consideration consistent with the decision of Webb. 2. In respect of the objection of the Commissioner based on mental health grounds, the totality of the evidence leads me to the conclusion that it would not be contrary to the public interest for a firearms licence to be issued to the Applicant, and I so find. Incorrect answers to questions in the Previous Applications 1. The Commissioner's second objection to the Applicant holding a firearms licence was in relation to the fact that the Applicant is allegedly not a fit and proper person and nor is it in the public interest for the Applicant to hold a firearms licence given that the Applicant knowingly provided false and misleading information by virtue of the Previous Application showing his disregard for the provisions of the Act. 2. The general principles to be applied in considering whether it is in the public interest for the Applicant to hold a firearms licence are discussed above. In respect of the general principles in considering whether a person be considered fit and proper to hold a firearms licence are well established and discussed below. 3. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." 1. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force & NSW Fair Trading [2014] NSWCATAD 184. Public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at [37]. The test for whether a person is fit and proper is guided by similar considerations to those applying to the "public interest": Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59 at [72]-[79]. In this context, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22]. 2. In respect of the provision of providing false and misleading information under the Act, Senior Member Naida Isenberg held in Saxby at [74] to [77]: "If the Applicant had knowingly provided false or misleading information in the application he would be liable to severe penalty: s 70 of the Act. Furthermore, on that basis alone, it would be unlikely that it would be in the public interest that a person who knowingly provided false or misleading information, should hold a firearms licence: see Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240. It is difficult to conclude that the Applicant did not knowingly intend to provide false information. The medical evidence shows a pattern of his requiring detailed psychiatric management. There can be no contention that it was an error, because his need for psychiatric intervention, sometimes as frequently as weekly, could not possibly have merely slipped his mind. As I said recently in Leatham v Commissioner of Police [2021] NSWCATAD 121 at [18] one of the objectives of the Act is the functioning of a proper system of firearms licensing, which necessarily depends on applicants providing true and correct information in a comprehensible manner. In Kogias v Commissioner of Police [2020] NSWCATAD 297 the applicant, who had failed to disclose that he had previously had his licence revoked, said that his incorrect statements in the application were errors and were not intentional. Nonetheless the Tribunal in that matter took the view that the applicant knew the form he had completed was incorrect. Similarly, in Hunt v Commissioner of Police [2021] NCATAD 58 the Tribunal found the applicant was aware that he had incorrectly completed the form in relation to a suicide attempt within the preceding 10 years. In Hook v Commissioner of Police [2020] NSWCATAD 250 the applicant had responded "no" to a question whether in the past 10 years he had been the subject of an AVO and had explained that he had thought the question was asking about current AVOs and that he must have misread the question. Professor Walker SM considered, at [96], that the applicant's explanations were less than impressive and at best suggested a degree of carelessness in completing an official document and that the meaning of the question was clear enough if he had taken the trouble to read it properly. The Senior Member found the applicant in that matter to be, essentially, unsophisticated and probably had not been involved much legal form-filling. His incorrect answers resulted from a combination of carelessness and inexperience and were not knowingly false or misleading within the meaning of s 70. The Senior Member also contrasted the matter to Constantin v Commissioner of Police, New South Wales Police Force, [2012] NSWADT 172 (Constantin), where the applicant had knowingly concealed a Queensland conviction for armed robbery. In this matter, the Applicant failed, not once, but three times, to answer correctly the clearly worded and unambiguous question of whether he had been treated for a mental disorder in the 12 months before the date of each application." 1. Like the circumstances in Hook, the Applicant's explanations as to why the questions were incorrectly answered were "less than impressive". 2. Even if I accepted that the Applicant did not consider his daily medication as coming within the meaning of "treatment" – that would not explain his negative answer to the questions regarding whether his licence had ever been suspended. At best they suggest that the Applicant had a degree of carelessness in completing an official document. I do not find anything on the face of the questions to be unclear or ambiguous. I also note these incorrect answers occurred over several years and on multiple occasions. 3. However, as stated in Ayers v Commissioner of Police [2021] NSWCATAD 78 with reference to the decision in Ward, "the licensing regime is not about punishment but rather about protecting the public". As such, analysis of the Applicant's conduct for the purposes of this decision is not to determine whether the Applicant ought to be punished but is in the context of determining what his future conduct is likely to be and whether that conduct is a risk to the public. In this respect, the Tribunal is required to look at the Applicant's conduct, including potential future conduct. When considering what future conduct may be, the Tribunal may consider past conduct as a significant guide: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. 4. While it is true that there is evidence of incorrect answers to questions in the Applicant's applications for a firearms licence and this occurred multiple times, the most recent example of those Previous Applications is dated 14 February 2017 being almost five years ago. 5. Rather, the most contemporaneous application was made on or around 28 February 2021 (February Application). By the time of the making of the February Application, the Applicant had obtained legal assistance and advice in the guise of his present lawyers who were retained from at least 22 September 2020 when they sent a letter in respect of the second revocation to the Firearms Registry. 6. In respect of the February Application, the Applicant not only gave true and correct answers to all questions but provided greater detail than strictly necessary specifying in response to "Mental Illness Details" by including: 1. the support being received from his GP and mental health specialist as well as 2. the medications that he was taking. 1. In those circumstances, I accept the submissions on behalf of the Applicant that he now understands the questions that are being asked of him and the importance of closely reading those questions. I find that the evidence supports that his future conduct will include correctly answering questions and providing true and correct information in respect of any future firearm licence applications. 2. In respect of the Previous Applications, I find that the Applicant did not knowingly give false or misleading information. In this respect, and like the circumstances in Hook, I note that the Applicant has worked as a fitter and machinist since the age of 18 years of age and now, works on the land assisting friends with fencing and farming as well as excavation work. Given his work in these capacities, it is probable that he has not been involved in much "legal form-filling" (as described in Hook). 3. I also take into consideration the Applicant's presentation as an honest witness during cross-examination, the substance of the character references, the extensive volunteer work that the Applicant undertakes and the absence of any criminal record. All these factors support a conclusion that the Applicant is a person of good character. 4. In all the circumstances, his incorrect answers resulted from a combination of carelessness, inexperience and the absence of assistance from a person with such experience and were not knowingly false or misleading within the meaning of s70 of the Act. He now, has had the benefit of legal representation, being an individual with experience in "legal form-filing" and the licensing regime. That is an intervening event in the conduct and knowledge of the Applicant. 5. In this context, I am satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace consistent with s11(3) of the Act. 6. Additionally, in respect of the Commissioner's reliance on s11(7) of the Act, I am not satisfied that the issue of a firearms licence to the Applicant would be contrary to the public interest. Orders 1. The decision under review is set aside 2. A category AB firearms licence is to be issued to the Applicant. ********** 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: 03 December 2021