Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Probst v Commissioner of Police [2023] NSWCATAP 61 Hearing dates: 13 December 2022 Date of orders: 1 March 2023 Decision date: 01 March 2023 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President S Thode, Principal Member Decision: Appeal dismissed Catchwords: APPEAL-procedural fairness-offer of adjournment refused- evidence concerning PTSD and alcohol use disorder-whether there was a risk to public safety in holding a firearms licence -application of Firearms Act-whether there was an error of law or a leave ground – all grounds rejected Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Firearms Act 1996 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Steven Probst (Appellant) Commissioner of Police NSW (Respondent) Representation: Solicitors: Appellant (Self Represented) Lindsay Taylor Lawyers (Respondent) File Number(s): 2022/00241986 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Administrative & Equal Opportunity Division Citation: Not applicable Date of Decision: 21 July 2022 Before: K Mobbs, Senior Member File Number(s): 2021/00172589 REASONS FOR DECISION Introduction 1. This appeal arises out of a decision published 21 July 2022 (which we shall refer to as the Decision) by which the Tribunal affirmed the Decision of the Commissioner to revoke the firearms licence held by the Appellant. 2. Following the revocation (which occurred on 22 March 2021) the Appellant lodged an application with the Tribunal for administrative review. That application was lodged on 16 June 2021 and the hearing of the application occurred on 2 November 2021. The Commissioner was the Respondent to the application at first instance and is the Respondent to this appeal. 3. As the Decision records, the Respondent's decision to revoke the firearms licence was made under the provisions of the Firearms Act 1996 (NSW) (the Firearms Act) and the Tribunal's jurisdiction to hear and determine the Appellant's application arises by reason of the provisions of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). The ADR Act requires the Tribunal to make the "correct and preferable decision" when determining the application for review (s63). 4. One of the points raised by the Appellant in this appeal concerns contentions that he was denied natural justice and experienced procedural unfairness at the hearing at first instance. Later in this decision, we will refer to relevant events which occurred during the hearing. However, in order to provide the background to the appeal we summarise, in the following paragraphs, the reasoning contained in the Decision. 5. Summary of the Decision 6. At [8] of the Decision the Tribunal recorded that the Respondent did not call any oral evidence and relied on documents supplied under s 58 of the ADR Act and also a bundle of evidence filed and served by the Respondent. The Appellant raised concerns about the latter bundle of evidence and submissions having been served late. The Respondent's representative consented to an adjournment to allow the Appellant further time to consider the material, but the Appellant indicated that he did not want an adjournment and that the matter should proceed. 7. At [10] the Tribunal described the evidence relied upon by the Respondent. It included material that was not before the original decision-maker. It included a decision in proceedings in the NSW Industrial Commission (the IRC) before Sams DP in which the parties were the Appellant and the Respondent. It also included medical and consultation notes, referral letters, reports and correspondence relating to Dr Elliott-Rudder, general practitioner, Dr Adesanya, consultant psychiatrist, Ms McInerney, psychologist, Mr Wilson, psychologist, Dr Reed, general practitioner and Dr Sidorov, psychiatrist. It appears this material was obtained as a result of summonses having been issued by the Tribunal at the request of the Respondent. 8. At [72] the Tribunal recorded that the findings in the Industrial Relations Commission decision (the IRC Decision) were not challenged by the Appellant and that accordingly, the Tribunal accepted the findings of Sams DP. The Tribunal referred to a number of incidents occurring 13 years earlier which the Tribunal characterised as domestic violence associated with the consumption of alcohol. The Tribunal recorded that the Appellant conceded that the allegations concerning these incidents were not minor. 9. At [77] the Tribunal considered whether the Appellant was a fit and proper person to hold a firearms licence and concluded that it was so satisfied "having regard to the Applicant's conduct since the IRC Decision". 10. From [84] the Tribunal dealt with contentions made by the Respondent that the Appellant had provided false or misleading information in connection with application forms connected to his firearms reapplication licence. The Tribunal found that there was no evidence supporting these contentions: see [86], [89], and [91]. 11. From [92] the Tribunal considered the Respondent's contention that it was not in the public interest for the Appellant to hold a firearms licence on the basis that he is recovering from PTSD (post-traumatic stress disorder) and AUD (alcohol use disorder). The Tribunal found at [92] that there was evidence derived from the various medical reports that the Appellant "currently meets the diagnostic criteria under DSM-5 for PTSD and alcohol use disorder". The Tribunal found that this was not in contest between the parties and that the Appellant had not been fit for work since August 2020. The Tribunal also found that the Appellant was continuing to receive treatment for these disorders. 12. At [93] the Tribunal found that as at the date of the hearing, the Appellant has not recovered from either of the two disorders. The Tribunal identified the primary issue in contention as whether or not, as a consequence of these current diagnoses, it is in the public interest for the Appellant to hold a firearms licence. The Tribunal went on to describe that its role was to consider the risk to the public associated with the Appellant holding such a licence, that only real and appreciable risks need to be taken into account and that minimal, fanciful or a theoretical risk can be excluded. 13. The Tribunal then considered the material contained in the various medical notes which had been provided through the summonses earlier mentioned. At [97] the Tribunal found that the Appellant's diagnosis of PTSD fits within the definition of "unsound mind" in the Firearms Act, that being a basis under the Act for a licence not to be issued. The Tribunal found that the Appellant's current diagnosis of PTSD "at least has the potential to put public safety at risk if the [Appellant] has the possession or use of a firearm". 14. At [105] the Tribunal found that in the "light of the evidence referred to above" the diagnosis of PTSD and the diagnosis of alcohol use disorder, provides the basis for the finding that the Appellant's use of alcohol also amounts to "intemperate habits" under the Firearms Act, that also being a basis for not issuing a firearms licence. The Tribunal found that the Appellant's use of alcohol is relevant to the consideration of the public interest as a pattern of consuming immoderate amounts of alcohol at least has the potential to put public safety at risk if the Appellant has the possession or use of a firearm. The Tribunal stated that the findings in the IRC Decision show a link between the Appellant's consumption of alcohol in four out of the five incidents of domestic violence. 15. At [106] the Tribunal found that there was no evidence from any medical practitioner either supporting the Appellant's suitability for a firearm or providing any opinion on it. The only material that specifically addressed this issue were the reports of two psychologists put forward by the Appellant, namely Ms McInerney and Mr Wilson (who also gave oral evidence and was cross- examined). The Tribunal found that the evidence of both of these practitioners did not unequivocally state that the Appellant's PTSD and AUD do not adversely impact on his ability to hold a firearms licence. 16. From [107] the Tribunal considered the evidence of Ms McInerney in the form of her reports. The Tribunal noted that Ms McInerney's reports stated that she is not a medical doctor and does not profess to be an expert. At [109] the Tribunal referred to one of her reports which asked the question whether the Appellant's condition or impairment would have the potential to put public safety at risk if they were to have possession and use of a firearm. Mr McInerney's response was that she was not a medical doctor and then went on to state that there have been no indications either current or historical that the Appellant would potentially place the public or himself at risk if he were to have possession of a firearm. 17. At [110] the Tribunal found that it should give little weight to the opinions of Ms McInerney. Two reasons were given: first, that she has not treated the Appellant since January 2021 "and did not give evidence in these proceedings". Secondly, taking into account "these factors" and the caveat (which in the context of the Decision means the earlier statements that Ms McInerney does not give medical opinions). 18. At [111] the Tribunal referred to the evidence of Mr Wilson, who supported the Appellant having his firearms licence restored on the basis that in his view, the Appellant posed low to no risk in holding a firearms licence and presented no higher risk than any member of the public. The Tribunal stated that the question of whether the Appellant should have a firearms licence is a question which the Tribunal itself must decide. For this reason, the Tribunal stated that it did not accept the opinions of either Ms McInerney or Mr Wilson in relation to this question as determinative of the view that the Tribunal should take. 19. At [116] the Tribunal found that the disorders of PTSD and AUD are current and that the Appellant continues to display symptoms and continues to receive treatment. At [117] the Tribunal found that the Appellant's PTSD falls within the definition of "unsound mind" and his AUD and alcohol consumption falls within the definition of "intemperate habits" in the Firearms Act. The Tribunal found that this has relevance in the context of the public interest as both mental disorders have the potential to put public safety at risk if the Appellant was to have possession or use of a firearm. 20. At [119] the Tribunal found that having regard to all of the evidence and "in the absence of any evidence from any medical practitioner that addresses the [Appellant's] conduct in the IRC Decision, the [Appellant's] PTSD, alcohol use disorder and evaluates the [Appellant's] risk in relation to holding a firearms licence, the current state of the evidence does not permit a clear assessment of risk other than to say the [Appellant's] history presents an appreciable risk to public safety". This conclusion is affirmed in [122] where the Tribunal states that in the absence of any evaluation from a medical practitioner relating to the Appellant's risk in holding a firearms licence, the Tribunal is not satisfied in the public interest for the Appellant to hold a firearms licence. 21. Notice of Appeal 22. The grounds of appeal contained in the Notice of Appeal may be summarised as follows: 1. The Tribunal failed to apportion appropriate weight to the fact that the Appellant was deemed fit to conduct police duties whilst carrying his service firearm, yet was deemed unfit to be licensed to possess and use firearms for lawful sporting or recreational use under the Firearms Act. 2. The Tribunal failed to apportion appropriate weight to the fact that the Appellant, by virtue of being a sergeant of the Police Force at the same time as being licensed to possess and use firearms, was empowered to use his service firearm in the execution of his duties. 3. The Tribunal failed to apportion appropriate weight to the fact that the Appellant's powers to carry a police-issued service firearm exceeded any authorised use of any firearm in the sporting or recreational context. 4. The Tribunal erred in its decision-making process by, on the one hand, finding that the Appellant was fit and proper and on the other hand finding that evidence was required from a medical practitioner regarding the Appellant's conduct which led to the proceedings in the Industrial Relations Commission. 5. The Tribunal erred by not apportioning appropriate weight to the fact that there had been no reported adverse instances where the Appellant possessed or used firearms in a way that breached the Firearms Act or Regulations or that there had been no incidents of violence since the decision of the Industrial Relations Commission in 2009 or that there was no evidence of the Appellant using his police-issued service firearm in any way contrary to instruction or the law. 6. In addition, the Appellant sought leave to appeal on the basis that the Decision that it was not in the public interest for the Appellant to hold a firearms licence is inconsistent with the fact that the Appellant was permitted to retain use of his service firearm as a sergeant of police. In addition leave was sought on the basis that the Tribunal held that the absence of medical evidence relating to the Appellant's current diagnosis of PTSD and AUD, the findings of the IRC and the absence of any evaluation from a medical practitioner relating to the Appellant's risk in holding a firearms licence as being the basis of the finding that it was not in the public interest for the Appellant to hold a firearms licence. 1. At the hearing of the appeal, the Appellant agreed with the members of the Appeal Panel that the grounds of appeal had been developed in his submissions and that the grounds he was pursuing were the following: 1. Ground 1: lack of procedural fairness at the hearing arising out of the acceptance of medical evidence without the ability of the Appellant to cross-examine the authors of the medical reports. 2. Ground 2: lack of procedural fairness in that the Respondent supplied evidence at a late stage, with the result that the evidence should have been rejected. 3. Ground 3: the Tribunal gave inappropriate weight to the medical evidence concerning the current diagnosis of PTSD and AUD. 1. The Respondent filed a Reply to Appeal opposing the appeal. The Appeal Hearing 1. The grounds of appeal included the contention that the hearing at first instance was conducted in a manner inconsistent with obligations of procedural fairness and there was a denial of natural justice. In support of these contentions, the Appellant supplied to the Appeal Panel (and to the Respondent), a copy of a transcript of the first instance hearing. The transcript had been typed by either the Appellant or someone appointed by him and was not as accurate as one might expect from an official government sanctioned transcript. Nevertheless, the Respondent's representative was content to deal with it and respond to the Appellant's arguments arising out of the transcript. 2. The points which the Appellant made relying upon the transcript can be summarised as follows: 1. At the beginning of the hearing, there was discussion about witnesses. The Respondent intended to rely upon a number of medical reports. The Appellant stated that he had requested that the authors be made available for cross-examination but that the Respondent had refused to do so. The Appellant contended that all of these reports should be excluded. 2. The Appellant also complained to the Tribunal about the late service of the material that the Respondent intended to rely upon. The Tribunal acknowledged the late service and asked the Appellant whether he wished to proceed or have an adjournment. The Appellant elected to proceed. 3. There was further discussion about whether there should be an adjournment and the Respondent's representative indicated that he consented to an adjournment if the Appellant so required. The Tribunal repeated the offer of the adjournment and the Appellant stated that he elected to proceed. 4. The Tribunal records that the documents requiring production under s 58 of the ADR Act were not objected to by the Appellant. In relation to the other documents, obtained through the issue of summonses, the Appellant indicated an objection to reliance upon some or all of those documents. The transcript records specific objection to the IRC Decision. 5. The Tribunal indicated that it thought that the material under consideration was relevant to the determination of the issues and that therefore that material would be admitted into evidence and considered. 6. The Appellant stated that he objected to the medical notes and reports upon the basis that the authors were not available for cross-examination. It was also noted that Ms McInerney was not available for cross-examination. The Tribunal made it clear that the material was relevant to the issues and the fact that the potential witnesses were not available for cross-examination might be a matter that both parties would wish to make submissions about. 7. The Tribunal expressly raised the question of natural justice by stating that fairness can be achieved by allowing the Appellant further time to consider material to call by way of further evidence. The Appellant repeated that his choice was to proceed with the hearing. Appellant's Submissions 1. The Appellant's written submissions attach a letter dated 4 October 2022 from Dr Adesanya, psychiatrist. The report is said to be based upon the doctor's "clinical data/documentation" on the Appellant and on the Decision. The submissions also seek to rely upon a document called "Certificate of Capacity/Certificate of Fitness" signed by a medical practitioner dated 20 October 2022 and also by the Appellant on the same date. At the appeal hearing the Appellant sought leave to tender these two documents in support of his appeal. 2. The Appellant submitted that the Tribunal erred in accepting the "expert evidence", which was made for a purpose "other than the matter before the Tribunal, without opportunity to examine the maker of that evidence." The submissions further contend that the Tribunal erred in inferring a risk to the public from that "untested expert evidence". The submission states that the subsequent report (ie. the attached report dated 4 October 2022) demonstrates that the medical reports were "incorrectly interpreted when it comes to a risk to the public". 3. The submissions also contended that the Tribunal erred in not accepting the expert evidence of psychologists, Mr Wilson and Ms McInerney, and that no expert evidence was presented by the Respondent that contradicted the evidence provided by Mr Wilson and Ms McInerney. 4. The Appellant submitted that the Tribunal "added the extra test of 'medical practitioner' as a standard". We take this to mean that the Appellant believes that the Tribunal took the view that evidence from medical practitioners is necessary and that the Tribunal erred in not accepting the evidence of psychologists. 5. The Appellant submitted that the new report of Dr Adesanya is clear in stating that there is no current or foreseeable risk in the Appellant's condition or impairment that may impact on his ability to exercise continuous or responsible control over firearms. The Appellant also submitted that Dr Adesanya's report stated that in her opinion there was no significant current or future risk that the Appellant's condition or impairment will put the public safety at risk if the Appellant were to have possession and use of a firearm. 6. With respect to the Certificate of Capacity/Certificate of Fitness, the Appellant contended that that document stated that the Appellant was now not using alcohol greater than health recommendations. 7. The Appellant also submitted that had he been aware that the material concerning the IRC findings would have been "weighted so highly" by the Tribunal he would likely have accepted the adjournment. He asks the Appeal Panel to take into consideration that he was not represented at the first instance hearing. 8. Respondent's Submissions 9. The Respondent's submissions are summarised in the following paragraphs. 10. The Respondent submitted that, to the extent that the appeal goes beyond alleged errors of law, the Appellant has not demonstrated why leave should be granted pursuant to the principles for the granting of a leave as set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. In particular the Respondent submitted that there is no evidence or demonstration of a matter that involves an issue of principle, a question of public importance or matters of administration of policy having general application and injustice which is reasonably clear, an error that is plain and readily apparent, a factual error that was unreasonably arrived at and clearly mistaken or the Tribunal going about the fact-finding process in such an unorthodox manner that it was likely to produce an unfair result. 11. The Respondent submitted that the Decision was open to be made on the evidence following a fair hearing where the Appellant was provided with a reasonable opportunity to be heard. With respect to the Appellant's submissions complaining about late service of the Respondent's material the evidence the Respondent offered the Appellant an adjournment by reason of the late filing of evidence. That opportunity was refused and the further opportunity at the hearing was also refused. 12. With respect to the application to file additional evidence in support of the appeal, the Respondent submitted that that evidence should not be admitted. In respect of the report of Dr Adesanya, the Respondent submitted that the report does not assist in establishing any suggestion of procedural unfairness. The report does not provide information as to when the doctor last spoke with the Appellant, whether the letter constitutes updated information, or is a review of historical information that can otherwise be found in the materials already filed and considered. The report states that despite his adherence with his prescribed medication and psychotherapy interventions for his conditions, there have been no significant improvement in the in the Appellant's conditions to date. The report states he continues to be certified as permanently unfit for work. The Respondent submitted that if leave is granted to rely on the report, the Tribunal will not have the requisite degree of comfort to be satisfied as to issues of public interest and public safety. If the Appeal Panel is minded to allow the report to be considered, the Respondent requires the doctor to be available for cross-examination to assist the Tribunal to determine the appropriate weight that can be afforded to the report. 13. In respect of the certificate of capacity/fitness, the Respondent submitted that the report appears to demonstrate that the Appellant told the author on 20 October 2022 that he is now not consuming alcohol greater than health recommendations. That information occurred well after the hearing at first instance, and its admission is not relevant to whether the Tribunal, at first instance, made an error. 14. In substance the new evidence is of marginal relevance and should not be admitted. 15. With respect to the Appellant's contention that the Tribunal erred in accepting expert evidence where it was made for another purpose, the Tribunal member considered all of the available material, including the reports from experts that was before her, as she was obliged to do: see s 61 of the ADR Act. This included the reports of the doctors identified in the medical records and notes provided in response to the summonses. 16. With respect to the findings in the recorded in the IRC Decision, the fact that the reports referred to in that decision were prepared for a workplace compensation claim, or for general treatment, has no bearing on the consideration of the evidence for the purposes of the Appellant's firearms application. 17. With respect to the Appellant's contention that the Tribunal erred in inferring a risk to the public from the untested expert evidence, the Tribunal considered all of the evidence and it was a matter for her to consider and weigh the evidence, including oral evidence of the witnesses called by the Appellant. Evidence which is untested by the absence of cross-examination may be considered by the Tribunal and is not necessarily excluded. The fact that it is untested may affect the weight afforded to that evidence. 18. With respect to the Appellant's submission that the Tribunal erred in not accepting the reports of the two psychologists (Mr Wilson and Ms McInerney) the position is that the Tribunal carefully considered the reports and decided to place little weight on the evidence of Ms McInerney for reasons which are recorded in the Decision. The Tribunal took into account that the two psychologists were not medical practitioners and there was no error in so doing. Appellant's Submissions in Reply 1. The Appellant's submissions in reply include submissions critical of the Respondent for non-compliance with directions during the period leading up to the first instance hearing. The submissions also referred to the Respondent's non-compliance with directions made during the course of this appeal. The essence of the Respondent's submissions was that the offer of the adjournment at the hearing of the appeal would only result in further delay. 2. The Respondent's submissions also made reference to the fact that the Tribunal discounted the evidence of Ms McInerney because she did not give evidence in the proceedings. The Appellant submitted that he objected to the medical reports which the Respondent had included on the basis that the doctors were not made available by the Respondent. The Appellant's submission was that the Tribunal erred by applying a different evidentiary standard to the Appellant's evidence than was applied to the evidence of the Respondent. 3. The Appellant also submitted that the Tribunal was unfairly critical of the medical reports because they did not make mention of the IRC Decision. Those reports were made during the Appellant's treatment of his two disorders and it was unfairly prejudicial to the Appellant for the report to be subject to criticism for not referring to the IRC Decision given the circumstances of their preparation. This could have been resolved by the Respondent making the authors of the medical reports and notes available for cross-examination. 4. The balance of the Appellant's submissions in reply involved a detailed analysis of the evidence considered by the Tribunal at first instance for the purposes of demonstrating that the Tribunal at first instance did not give appropriate weight to statements made in the reports favourable to the Appellant. Consideration 1. At the hearing of the appeal, we considered the Appellant's application for the Appeal Panel to receive and consider the two reports earlier referred to (ie. the report of Dr Adesanya dated 4 October 22 and the Certificate of Capacity/Fitness dated 20 October 2022). We rejected the admission of those reports and stated that our reasons would be provided later. Our reasons are set out in the following paragraphs. 2. Although the Respondent provided evidence late, it was not so late (being approximately two weeks before the hearing) that the Appellant could not form a view as to what he might need to do to bolster the merits of his case should the documents served by the Respondent be accepted for consideration by the Tribunal. He was offered an adjournment more than once during the hearing and rejected it. He took the view that the Respondent's evidence should be rejected because the authors of the reports were not available for cross-examination. This view was taken notwithstanding the clear statements from the Tribunal hearing the first instance case that she intended to receive and consider that material. 3. What could have happened at and after the first instance hearing in November 2021 is that the Appellant could have taken the adjournment and then done the very thing that he did after lodging the Notice of Appeal namely obtain a further report from Dr Adesanya. In our view, having made the decision to continue with the hearing, the Appellant should not be given an opportunity to introduce fresh evidence when that opportunity was offered and rejected at first instance. 4. One reason we have come to the above view is that cases need to be finalised by parties producing all their evidence at first instance and not seeking to introduce in appeal proceedings evidence that could have been provided previously. 5. A further reason for rejecting the Dr Adesanya report is that the Appellant has made no arrangements for Dr Adesanya to be present for cross-examination. This would not mean that her report should not be received but it would be subject to submissions from the Respondent that the report should be given less weight than would possibly be the case had Dr Adesanya been available for cross-examination. This brings us to some issues in the report which we think do not resolve the issue of risk and whether it is in the public interest for the Appellant to hold a firearms licence. The Respondent submitted that if we were to allow the report the Respondent would wish to cross examine the doctor. 6. The issues to which we refer in the above paragraph are these: 1. Paragraph H(3) states that on the balance of probabilities, it is unlikely that the impairment (that is the two disorders the Appellant suffers from) will significantly affect the Appellant's fitness to possess and use firearms as he is currently on regular treatment for his conditions. The expression "balance of probabilities" and the phrase "that the impairment will significantly affect his fitness" do not resolve the Tribunal's requirement for evidence that permitted a clear assessment of risk. 2. In paragraph H(7) Dr Adesanya says that there is no current or foreseeable risk of the Appellant constituting a risk by reason of his impairment in relation to the exercise or responsible control over firearms. That statement is very much in the Appellant's favour but it is to be weighed against the statement made in the same paragraph that there is a potential risk that the Appellant's diagnosed conditions may relapse and no statement as to whether a relapse would carry with it a change in the level of risk. 3. In paragraph H(8 e) there is a statement to the effect that in the opinion of Dr Adesanya there is "no significant current or foreseeable risk" that the Appellant's condition or impairment will put the public safety at risk if he were to have possession and use of a firearm. Questions arise as to what the doctor intended by the use of the word "significant". 1. The purpose of mentioning the above issues is to indicate that, were the report to be admitted in the appeal and considered by us, it would not necessarily be the case that the evidence in Dr Adesanya's report would alter the result. 2. With respect to the Certificate of Capacity/Fitness, the only relevance of that report is that there is a suggestion that the Appellant is not using alcohol greater than health recommendations. That statement appears to be sourced from the Appellant himself and whether the truth of it has been tested by the medical practitioner signing the report remains unclear. It is also not clear what health recommendations are being referred to. Finally, the report would not in our view, were it to be admitted into evidence, have led to a different outcome for the Appellant. 3. For the above reasons, the two new documents (Dr Adesanya's report and the Certificate of Capacity/Fitness) were rejected. We will now turn to the other grounds of appeal. 4. Earlier we referred to two grounds of appeal asserting lack of procedural fairness. Ground 1 was to the effect that there was a lack of procedural fairness arising out of the acceptance of medical evidence without the ability of the Appellant to cross-examine the authors of the medical reports. Ground 2 contended that there was a lack of procedural fairness in that the Respondent supplied evidence at a late stage and that that evidence should have been rejected. Both grounds are rejected. The reason is that the Appellant was offered on more than one occasion an opportunity to adjourn the proceedings and on each occasion, he rejected that offer. 5. A further reason for rejecting ground 1 is that it is not clear what purpose cross-examination of the medical witnesses would have achieved. At [92] of the Decision the Tribunal recorded that the Appellant has PTSD and alcohol-use disorder and that those diagnoses were not in contest between the parties. The Tribunal also found, on the basis of Mr Wilson's evidence, that the Appellant was continuing to receive treatment for these disorders. The Tribunal stated at [93] that the primary issue in contention is whether or not as a consequence of "these current diagnoses it is in the public interest for the [Appellant] to hold a firearms licence". The Tribunal's conclusion at [119] was that the evidence did not permit a clear assessment of risk other than to say that the Appellant's history presents an appreciable risk to public safety. The history to which the Tribunal referred was that contained in the IRC Decision. What the Tribunal was seeking was evidence permitting a clear assessment of risk. This is clear also from [122] where the Tribunal speaks of the absence of any evaluation from a medical practitioner relating to the Appellant's risk in holding a firearms licence. Cross-examination may or may not have elicited evidence concerning risk favourable to the Appellant. In any event, the adjournment would have given him an opportunity to consider how the evidence might be improved but he chose to reject the offer of the adjournment. 6. The Appellant makes the point that he was not legally represented and that presumably some latitude should be given to him on that account. We do not agree in the circumstances of this case. The Appellant was not put under any pressure to make a quick or ill-considered decision. Rather the issue of the adjournment was repeated more than once and the Appellant expressed his preference to proceed. 7. Ground 3 concerns the contention that the Tribunal gave inappropriate weight to the medical evidence concerning the current diagnosis of PTSD and AUD. Related to this ground was the contention that the Tribunal erred in not accepting the evidence of the two psychologists, Mr Wilson and Ms McInerney. A further related contention was that the Tribunal erred in requiring evidence from a medical practitioner. It is not surprising, in our view, that the Tribunal was cautious about accepting the evidence of the two psychologists in circumstances where Ms McInerney herself stated that she defers to medical professionals. The Tribunal also gave other reasons for giving little weight to Ms McInerney's opinions – for example, that she had not treated the Appellant since January 2021 and was apparently not aware of the IRC Decision – see [110] of the Decision. In the case of Mr Wilson, the Tribunal declined to accept his opinions because the Tribunal said that he addressed the question which the Tribunal itself must decide – that is whether the Appellant should have a firearms licence. 8. There is no error of law in the Tribunal's evaluation of the evidence of the two psychologists. The Tribunal's preference for an evaluation from a medical practitioner relating to the Appellant's risk in holding a firearms licence was open to the Tribunal in the circumstances of this case and its obligation to assess the suitability of the Appellant's application. No question of law arises. 9. To the extent that the rejection of the psychologists' opinions might give rise to a leave ground, for the reasons set out in the Respondent's submissions, we do not agree that this is an appropriate case for the granting of the leave. The criteria earlier referred to have not been established. For example, there is no clear injustice or a matter of general principle. 10. Other grounds of appeal were set out in the Notice of Appeal and we will deal with these in the following paragraphs. 11. Ground 1: this concerned the contention that the Tribunal failed to apportion appropriate weight to the fact that the Appellant was deemed fit to conduct police duties whilst carrying his service firearm, yet was deemed unfit to be licensed to possess and use firearms for lawful or recreational use. Assuming that there was a period where the Appellant had a service firearm for police duties and at the same time was deemed unfit to be licensed to possess a firearm for sporting or recreational use, that apparent inconsistency does not affect the merit of the Decision. The processes of the Police Force were not under scrutiny in the proceedings at first instance which concerned only the Appellant's right to have a firearms licence. There is no basis to uphold this ground. Grounds 2 and 3 are to the same effect and are rejected for the same reason. 12. Ground 4 is to the effect that the Tribunal erred in determining, on the one hand, that the Appellant was a fit and proper person under the Firearms Act and, on the other hand, found that evidence was required from a medical practitioner regarding the Appellant's conduct which led to the proceedings in the IRC. The Firearms Act deals with a number of bases for suspending a license and the Tribunal dealt with the various bases that were in issue. Considerations of what constitutes a fit and proper person may well be different to considerations which concern whether there is an appreciable risk to public safety. The evidence that was lacking was that of a medical practitioner concerning whether there was an appreciable risk to public safety. There is no basis to ground 4. 13. Ground 5 concerns the contention that the Tribunal erred by not apportioning appropriate weight to the fact that there had been no reported adverse instances where the Appellant possessed or used firearms in a way that breached the Firearms Act or that there had been no incidents of violence since the decision of the IRC. The Tribunal expressly acknowledged that there had been no such reported issues or incidents – see [116]. There is no error of law apparent in the Tribunal's reasoning. A basis for granting leave does not exist. In other words, there is no clear injustice in the Tribunal's decision in this respect, nor is there a question of the public policy or other basis for granting leave as earlier referred to. This ground is also rejected. 14. Ground 6 concerns the Appellant's contention that leave ought to be granted on the basis that the Tribunal erred in stating that it was not in the public interest for the Appellant to hold a firearms licence, that finding being inconsistent with the fact that the Appellant was permitted to use a service firearm whilst a serving police officer. This ground is in substance the same as grounds 1, 2 and 3 and is rejected for the same reasons. Leave is also sought on the basis that the Tribunal erred in holding that the absence of medical evidence relating to the diagnosis of PTSD and AUD, the findings of the IRC and the absence of any evaluation from a medical practitioner relating to the Appellant's risk in holding a firearms licence was an appropriate basis for the finding that it was not in the public interest for the Appellant to hold a firearms licence. In our view the reasoning of the Tribunal was in conformity with the requirements of the Firearms Act and the process of reasoning that the Tribunal applied in concluding that it was not in the public interest for the Appellant to hold a firearms licence displays no error of law or a basis for granting leave. 15. Our conclusion is that no ground of appeal should be upheld. Accordingly, the Tribunal makes the following order: 1. Appeal dismissed. 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: 01 March 2023