Civil and Administrative Tribunal New South Wales Medium Neutral Citation: White v Commissioner of Police, NSW Police Force [2023] NSWCATAP 74 Hearing dates: 3 March 2023 Date of orders: 16 March 2023 Decision date: 16 March 2023 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President A Balla ADCJ, Principal Member Decision: (1) Appeal dismissed Catchwords: Appeals – application for firearms licence – application refused – no error of law nor leave ground – whether new evidence to be admitted Legislation Cited: Civil & Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Cases Cited: Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 Collins v Urban [2014] NSWCATAP 17 Coulter v R (1988) 164 CLR 350; [1988] HCA 3 Davos v Commissioner of Police [2013] NSWADT 7 Hannaford v The Commonwealth of the Bank of Australia [2014] NSWCA 297 House v The King (1936) 55 CLR 499; [1936] HCA 40 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Webb v Commissioner of Police, New South Wales Police Force [2004] NSWADT 110 Texts Cited: None cited Category: Principal judgment Parties: Adam Joseph White (Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: Appellant (Self Represented) Maddocks Lawyers (Respondent) File Number(s): 2022/00338503 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Administrative & Equal Opportunity Division Citation: [2022] NSWCATAD 336 Date of Decision: 18 October 2022 Before: L Andelman (Senior Member) File Number(s): 2022/00141738 REASONS FOR DECISION Introduction 1. The Appellant brought an application to the Tribunal seeking a review of the decision of the Respondent to refuse the issue of a firearms licence. The hearing of that review occurred on 5 October 2022 and on 18 October 2022 the Tribunal published its decision which was to affirm the Respondent's decision. That decision is the decision under appeal which we will refer to as the "Decision". 2. By Notice of Appeal filed on 11 November 2022 the Appellant appealed the Decision and sought an order that the Respondent's refusal to issue a firearms licence be overturned. 3. In our view, the appeal should be dismissed. The reasons for coming to that view are explained in the paragraphs that follow. The Decision Under Appeal 1. It is helpful in understanding this appeal to record in summarised form the reasons contained in the Decision. 2. On 15 June 2018 the Appellant applied for a firearms licence and the application was refused on 14 September 2018. On 18 November 2019, the Appellant made a further application for a firearms licence which was refused on 20 March 2021. The Respondent conducted an internal review and supplied a statement of reasons dated 28 March 2022. The review affirmed the refusal of the issue of a firearms licence. 3. In refusing to issue the firearms licence the Respondent relied upon s 11(7) of the Firearms Act 1996 (NSW) (the Act). Section 11(7) provides that the Commissioner may refuse to issue a licence if the Commissioner considers that the issue of the licence would be contrary to the public interest. The full text of s 11 is set out below: 11 General restrictions on issue of licences (cf 1989 Act s 25, APMC 4, 5, 6) (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. (2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made. (2A) Subsection (2) does not apply if the application is for the renewal of a licence (including the renewal of a category A or B licence that involves the addition of either of those licence categories to the previous licence). (3) A licence must not be issued unless-- (a) 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, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. (3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned. (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of-- (a) the applicant's way of living or domestic circumstances, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. (5) A licence must not be issued to a person who-- (a) is under the age of 18, or (b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or (c) is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to an apprehended violence order (other than an order that has been revoked), or (d) is subject to one of the following in relation to an offence prescribed by the regulations-- (i) a good behaviour bond, whether entered into in New South Wales or elsewhere, (ii) a community correction order imposed in New South Wales, (iii) a conditional release order imposed in New South Wales, or (e) is subject to a firearms prohibition order, or (f) is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000. (5A) A licence must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that-- (a) the person is a risk to public safety, and (b) the issuing of the licence would be contrary to the public interest. (5B) The Commissioner is not, under this or any other Act or law, required to give any reasons for not issuing a licence on the grounds referred to in subsection (5A). (6) Except in the case of a firearms dealer licence or where the applicant's genuine reason is business or employment, a licence must not be issued to a person who is not a natural person. (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence. 1. At [28] the Tribunal dealt with the basis for the Respondent's refusal to issue the licence, namely that it would be contrary to the public interest to grant the Appellant such a licence. The Tribunal found that an individual's interest in obtaining or retaining a firearms licence is subservient to the public's right to safety. The Tribunal found that this statement was consistent with s 3(1)(a) of the Act which sets out the "underlying principles" of the Act which includes the principle: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, … 1. At [31] the Tribunal stated that in considering public interest, the Tribunal takes into account the interests of public protection, public safety and the proper functioning of the legislative requirements of the firearm scheme, relying upon statements made in Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. 2. The Tribunal also relied upon the statement in Davos v Commissioner of Police [2013] NSWADT 7 at [117] that the fundamental principle of the Act is that the possession and use of firearms is conditional upon the overriding need for public safety. 3. The Tribunal referred to the statement made in Webb v Commissioner of Police, New South Wales Police Force [2004] NSWADT 110 at [32] that in determining whether there is a risk to the safety of the public, it is necessary to adopt a balanced view of the risk, that only real and appreciable risks need to be taken into account and minimal, fanciful or theoretical risk can be excluded from consideration. 4. It was not in dispute that the Appellant had had prior criminal convictions from 1999 to 2009, including for stealing, assault, intimidation and stalking. Nor was it in dispute that Appellant's criminal history included unlawful use of drugs between 2000 and 2007. There was also a record of traffic infringements from 1995 to 2002, involving approximately 28 traffic offences, the disqualification of his licence on six occasions and on two occasions being declared an habitual offender. 5. At [37] the Tribunal found that the Appellant had been careless in filling out his application for a firearms licence in 2018 because in that application he had stated that he had no prior conviction for an offence involving violence in the previous 10 years. The Tribunal also found at [38] that failing to take care in filling out a firearms application does have serious ramifications as it demonstrates a lack of the requisite care and attention to the firearm scheme. At [39] the Tribunal stated that it had concerns about the Appellant as to whether he would exercise requisite care and attention in maintaining firearm safety to the very high level of standard required because of his carelessness in filling out a firearms licence application. At [40] the Tribunal stated that it also had concerns about the Appellant's combined criminal history and driving history record and that although he had not been convicted or charged for over 10 years firearms ownership is a privilege not generally available to people who have demonstrated a disregard for public safety. 6. At [41] the Tribunal stated that its role was to consider whether the Appellant would pose a risk to public safety if he were granted a firearms licence and at [42] the Tribunal found that it would be contrary to the public interest for the Appellant to "be presently issued with a firearms licence because of the extensive criminal history and traffic offending history, as well as the lack of care [the Appellant] demonstrated in filling in the 2018 application. [The Appellant] by his own account did not even check whether he was answering the question in regard to his prior criminal conduct correctly". 7. At [44] the Tribunal found that the correct and preferable decision is to affirm the decision of the Respondent to refuse the Appellant's application for a firearms licence. Notice of Appeal 1. By Notice of Appeal dated lodged on 11 November 2022 the Appellant appealed the Decision and in an attachment to the Notice of Appeal made comment upon aspects of the Decision. These comments may be summarised as follows: 1. The Appellant has not committed an offence since 2009. 2. Although the offences were serious, the Appellant says that he should not continue to have to keep "paying for past mistakes" and that people change and/or wake-up. 3. The Appellant referred to other incidents referred to in the Decision occurring between 2016 and 2020. We note that these incidents do not appear to have been included in the Decision as reasons supporting refusal of the licence and therefore, we will not address them in this decision. 4. With respect to the finding that the Appellant had been careless in completing the 2018 application, the Appellant submitted that he had "just overlooked the seriousness of not having checked the timeframe". He also submitted that being careless with a "bit of paperwork is a big difference to being careless handling a firearm". 5. The Appellant also made reference to his personal circumstances concerning the loss of his father from the age of 12 and the fact that he had learnt respect for firearms from his grandfather, a returned soldier. 6. The Appellant sought to rely upon fresh additional evidence. The first additional document was a letter from Currajong Street Medical Centre dated 8 November 2022 signed by Dr A. Paul. The letter refers to the Appellant's medical records from 1983 to 2008 and then again from 2007 to 2015. The letter stated that the Appellant had not presented in the doctor's practice since May 2021. The doctor recorded that he had asked the Appellant to complete a questionnaire and the result showed that the Appellant had "low risk for anxiety and depression". 7. The second document the Appellant sought to rely upon was a letter dated 14 August 2001 from Speadi-link. Given its age, we do not think it is of any assistance to a consideration of the issues now before us. 8. The third document was a transcript of academic record of courses undertaken with TAFE by the Appellant in 2003. Again, given the age of that record, we do not think it is of any relevance to the issues before us. 9. The next document was a reference from Jacqueline Powell dated 1 November 2022. She has known the Appellant for many years including as a neighbour and the reference spoke favourably about the Appellant describing him as a "reliable, trustworthy and decent person". 10. The Appellant sought to rely upon the reference of Dianne Jones dated 5 November 2022, who has known the Appellant for over 25 years. She stated that over the past 10 years she has never known the Appellant to be in trouble with police, do drugs, or threaten anyone. She stated that in her opinion, the Appellant has "settled down and matured over the last 10 years". 11. The Appellant also relied on a form headed Letter of Authority/Permission to Shoot signed by a landowner which appears to authorise the Appellant to shoot pigs on the landowner's property. It is dated 30 October 2022. We do not consider it relevant to this appeal. Reply to Appeal and Respondent's Submissions 1. The Respondent filed a Reply to Appeal opposing the appeal and supporting the orders made in the Decision. Subsequently, the Respondent filed submissions and the effect of the submissions are summarised in the following paragraphs. 2. Appeals from decisions made in the Tribunal are regulated by s 80 of the Civil & Administrative Tribunal Act, 2013 NSW (the NCAT Act). Relevant to this appeal, s 80 provides that an appeal is available as of right on any question of law or with the leave of the Appeal Panel on any other grounds. 3. Where a question of law is raised concerning the exercise of a statutory discretion such as under s 11(7) of the Act, the exercise of that discretion can only be overturned in limited circumstances: House v The King (1936) 55 CLR 499 at 505-506; [1936] HCA 40. 4. The Respondent contended that in Hannaford v The Commonwealth Bank of Australia [2014] NSWCA 297 the Court of Appeal held that an attack on a discretionary decision must fail: "… Unless it can be demonstrated that the decision-maker: (a) made an error of legal principle; (b) made a material error of fact; (c) took into account some irrelevant matter; (d) failed to take into account or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question, did not explicitly appear on the face of the reasoning." 1. The Respondent contended that the Appellant has not raised any error or question of law in the Decision. Rather the material filed by the Appellant repeats arguments made by him in the proceedings before the Tribunal at first instance. The Respondent further contended, that to the extent that the Appellant appeals on issues other than questions of law, he has not explained why leave should be granted and therefore the Respondent contended that leave should not be granted. 2. The Respondent made submissions concerning the new documents referred to above, which were attached to the Notice of Appeal. 3. The Respondent contended that the Decision does not involve reasons concerning the Appellant's mental health or previous drug issues, instead finding at [42], that it would be contrary for the Appellant to be issued with a firearms licence because of the extensive criminal history and traffic offending history, as well as the lack of care in filling out the 2018 application. 4. The Respondent contended that the provision of the new documentation does not justify any interference with the Decision. The new material would not have altered the reasons for the Decision or changed the Decision as the Tribunal's findings do not suggest that the Appellant's evidence was lacking. 5. The Respondent's submissions also address the question of whether leave to appeal should be granted in respect of submissions made by the Appellant not involving questions of law. The relevant legal principles for granting leave were set out by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35]. There, the Appeal Panel adopted the criteria for granting leave explained in Coulter v R (1988) 164 CLR 350; [1988] HCA 3 where the High Court (per Deane and Gaudron JJ) set out the bases for leave to be granted, namely: 3. Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; 4. Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; 5. There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; 6. Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; 7. In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); 8. Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; 9. Lastly, subject to the above, the matters set out in Collins at [84(1)‑(2)] are also relevant to the exercise of a discretion to grant leave. 1. The Respondent opposed the grant of leave on the basis that the Appellant had not demonstrated something more than that the primary decision-maker was arguably wrong. There is no basis for finding that an injustice has occurred and otherwise the criteria set out in Collins v Urban [2014] NSWCATAP 17 have not been met. In that decision it was held that ordinarily it is appropriate to grant leave only in matters that involve an issue of principle, or where there is a question of public importance, or where there is an injustice which is reasonably clear, or a factual error that was clearly mistaken, or where the interests of justice require the decision to be reviewed. Consideration 1. We are in agreement with the Respondent's submissions and are of the opinion that the appeal should be dismissed. 2. The Appellant has not identified any question of law arising out of the Tribunal's Decision. Nor do the Appellant's submissions satisfy the criteria for granting leave to appeal. In another words, there is no issue of principle, question of public importance, injustice which is reasonably clear or factual error unreasonably arrived at or clearly mistaken. 3. Rather, the Tribunal found, at [42], that it would be contrary to the public interest for the Appellant to be presently issued with a firearms licence because of the Appellant's extensive criminal history and traffic offending history as well as a lack of care he demonstrated in filling out the 2018 application. The member described the question in the application form as critical and the Appellant's conduct in not checking whether his last conviction was within 10 years prior to 2018 as demonstrating that he approached the firearms licensing regime without sufficient care and diligence. 4. In our view, the findings of fact and the conclusion reached by the Tribunal were open on the evidence and do not demonstrate an error of law, nor do they demonstrate a finding justifying the grant of leave, having regard to the criteria earlier described. 5. In our view, the additional evidence which the Appellant seeks to rely upon should not be allowed. This is because such evidence could have been provided to the Tribunal at first instance had the Appellant taken appropriate steps. He did not do so because he was not aware of the fact that such evidence might improve his prospects of success. Generally speaking, an appellant should not be permitted to improve their case on appeal through the submission of fresh evidence. To allow that to occur results in a potential injustice to the Respondent. This is so because the Respondent may be put to the task of not only considering that evidence but considering what evidence may be necessary to rebut the fresh evidence sought to be relied upon by the Appellant. 6. Accordingly, we do not allow the Appellant to rely upon the fresh evidence attached to the Notice of Appeal. 7. Notwithstanding the decision made above, we add that we are of the opinion that the fresh evidence would not have been likely to have produced a different result. The evidence of the doctor is insufficient to rule out issues of public safety. He does not specifically express any opinion about whether the Appellant poses a risk to public safety if in the possession of firearms. The two references are from people who have known the Appellant for a very long time and both indicate that the Appellant's life has changed for the better. However they do not specifically address the Appellant's suitability to hold a firearms licence. 8. Accordingly, the appropriate order is that the appeal should be 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: 16 March 2023