Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Elley v Commissioner of Police, NSW Police Force [2023] NSWCATAP 237 Hearing dates: 31 March 2023 and 2 May 2023 Date of orders: 25 August 2023 Decision date: 25 August 2023 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President A Boxall, Senior Member Decision: 1. Leave is refused to appeal on grounds other than a question of law. 2. The appeal is dismissed. 3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the Confidential Material and confidential exhibit CR2, or matters contained in the Confidential Material and confidential exhibit CR2, is prohibited. 4. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the Confidential Material and confidential exhibit CR2, or matters contained in the Confidential Material and confidential exhibit CR2 is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal. 5. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR2, is prohibited and the contents of all paragraphs in these reasons marked "[NOT FOR PUBLICATION]" are not to be published or disclosed to anyone except the Respondent and the legal representatives for the Respondent. Catchwords: APPEAL – administrative review - firearms – revocation of firearm licence – non-disclosure orders – where non-disclosure orders made which prohibited disclosure of some evidence to applicant – principles of open justice and procedural fairness –approach to dealing with confidential evidence which has not been disclosed to the applicant – error on a question of law – adequacy of reasons Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Firearms Act 1996 (NSW) Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Collins v Urban [2014] NSWCATAP 17 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ; 73 ALD 321; [2003] HCA 26 Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Meacham v Commissioner of Police [2020] NSWCATAP 107 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Pochi v Minister for Immigration and Ethnic Affairs, (1979) 36 FLR 482 Public Service Board of NSW v Osmond (1986) 159 CLR 656 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 Starr v Johnston [2023] NSWCATAP 190 Texts Cited: None cited Category: Principal judgment Parties: Donald Elley (Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: R Graycar (Appellant) Solicitors: Sparke Helmore Lawyers (Respondent) File Number(s): 2022/00363775 Publication restriction: See above. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2022] NSWCATAD 351 Date of Decision: 4 November 2022 Before: Emeritus Prof G D Walker, Senior Member File Number(s): 2022/00181745 REASONS FOR DECISION Overview 1. Mr Elley has appealed from a decision of the Tribunal affirming a decision of the Commissioner of Police to refuse to issue him with a firearms licence. The Commissioner made that decision on two bases. First, she was not satisfied that Mr Elley is a "fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace". Secondly, the Commissioner refused Mr Elley's application because she considered "that issuing the licence would be contrary to the public interest". Those grounds for refusal are in s 11(3)(a) and s 11(7) of the Firearms Act 1996 (NSW). 2. The grounds of appeal relate to material tendered by the Commissioner of Police in a confidential exhibit (the Confidential Material). That material was not shown to Mr Elley or his lawyer. The parts of the hearing relating to the Confidential Material were conducted in their absence and in the absence of the public. 3. Mr Elley has the right to appeal from the Tribunal's decision "on any question of law": Civil and Administrative Tribunal Act 2013 (NSW)(NCAT Act), s 80(2)(b). The grounds of appeal said to identify error on a question of law are: 1. The Tribunal failed to give adequate reasons for its decision. (Ground 1) 2. The Tribunal erred in law in its interpretation of section 11(7) of the Firearms Act 1996 (NSW) which provides that: 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. (Ground 3) 1. The Tribunal made findings of fact not supported by logically probative evidence. (Ground 4) 2. The Tribunal failed to respond to clearly articulated substantive arguments and submissions made by the Appellant. (Ground 5) 1. Mr Elley also asks the Appeal Panel for permission to appeal on other grounds relating to the merits of the Tribunal's decision: NCAT Act, s 80(2)(b). 2. None of the grounds of appeal on a question of law disclose error. We have also refused to grant leave to appeal on grounds other than a question of law. For the following reasons, the appeal is dismissed. Procedural history and relevant statutory provisions Duty to lodge documents 1. Before addressing each of the grounds of appeal, we outline below the procedural history and relevant legal principles relating to the Confidential Material. 2. The Administrative Decisions Review Act 1997 (NSW) (ADR Act) sets out the procedure to be followed when a person applies to the Tribunal for a review of an administrative decision. Under s 58(1)(b) of that Act the administrator, in this case the Commissioner of Police, must lodge certain documents with the Tribunal including: . . . 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 (Emphasis added.) 1. The Commissioner of Police applied for an order under s 59(1)(b) of the ADR Act, that she not be required to lodge a copy of certain documents because of the confidential nature of the information in those documents: 59 Objections to lodgment (1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58. (2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if: (a) it is satisfied that section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as not to require the disclosure of the document, or (b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document. 1. Following a short hearing, the Tribunal made an interlocutory order that the documents which the Commissioner of Police had identified as confidential be excluded from the material the Commissioner was required to lodge. The Tribunal was satisfied, under s 59(2)(b), that "if an application were made under section 64(1)(c) of the NCAT Act it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document": ADR Act, s 59(2)(b). Section 64(1)(c) of the NCAT Act provides that: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— . . . (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal. 1. If the Tribunal had not made an order excusing the Commissioner from lodging the Confidential Material, the Registrar would have been obliged to "grant reasonable access to the applicant in the proceedings to any copy of" that material: ADR Act, s 58(5). Further confidentiality orders 1. Having ordered that the Confidential Material not be lodged, the Tribunal went on to make two further orders. The first was that the parts of the hearing relating to the Confidential Material be conducted in private. Only the Commissioner and his legal representatives could be present: NCAT Act, s 49(2). The second order was that publication and disclosure of the Confidential Material was prohibited under s 64(1)(d) of the NCAT Act. The Tribunal noted in its reasons for the interlocutory orders that if the Commissioner of Police sought to rely on the Confidential Material at the hearing, the Tribunal would need to decide "the issue of admissibility" of that material. Tribunal's decision 1. The Tribunal recited Mr Elley's firearms licencing history culminating in the most recent decision to refuse his application for a Category AB firearms licence. The Tribunal then identified the relevant legislative provisions and summarised the open and confidential evidence. After setting out Mr Elley's submissions, the Tribunal applied the law to its findings of facts and reached the conclusion that the grounds in s 11(3)(a) and s 11(7) of the Firearms Act had been made out. Mr Elley was not a fit and proper person to hold a firearms licence, could not be trusted to have possession of firearms without danger to public safety or to the peace and it would be contrary to the public interest for him to do so. 2. The Tribunal summarised Mr Elley's character references and reached an overall conclusion on fitness and propriety at [104]- [108]. The Tribunal found at [105], that there was no report of Mr Elley having used "a firearm dangerously or inappropriately or of making threats involving firearms". At [106] and [108] the Tribunal referred to a favourable evaluation by a psychologist, Mr Schreiner, but concluded that: Overall, the applicant appears as a man of good character and prudent attitudes, but with unduly combative and possibly obsessive tendencies. He has accumulated a significant mental health history, discussed above, which dates back to at least 2017 (and, it may be noted, largely post-dates Thode SM's favourable decision in his (sic) decision to set aside the 13 May 2016 revocation). That history includes observations of problems with anger management, depression and in one instance suicidal ideation (but no intent). There are also lay observations of seemingly obsessive behaviour. . . . While the explosive relationship with his ex-wife has been partly resolved since their separation, the continuing contacts over child custody and the applicant's pending AVO proceedings against his ex-wife would appear to contain the potential for further outbreaks of angry conflict. As it has been almost 2½ years since Mr Schreiner's favourable evaluation, it would appear to me prudent to seek a more up-to-date report. In the absence of such evidence I am unable to make a positive finding that the applicant is a fit and proper person to hold a licence within the meaning of s 11(3)(a). 1. On the question of whether issuing a firearms licence would be contrary to the public interest, the Tribunal concluded at [109] and [110] that: The applicant operates two rural properties and expresses a need to have firearms in order to control ferals and other vermin and humanely to put down sick or injured livestock. Indeed, it is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment and of primary industry. That consideration cannot, however, outweigh the need to minimize risks to public safety. For the reasons given above in relation to fitness and propriety, I do not think the currently available open and confidential evidence permits the tribunal to find that issuing a firearms licence to the applicant would involve no real or appreciable risk to public safety. I therefore find that it would not at present be in the public interest for the applicant to be issued with a licence. Ground 1 – failure to give adequate reasons for findings Summary of Ground 1 1. Ground 1 is that the Tribunal failed to give adequate reasons for the following two "items of evidence" referred to in the reasons: 1. whether the Tribunal considered the confidential information before it (see Reasons at [42] – [49]; [79] – [82]; [95]) to be admissible, (cf interlocutory decision of 16 September 2022; last paragraph), nor the extent to which that material was relied on in making its decision; 2. whether the Tribunal relied on comments by the police (see Reasons [77]; [90]) to make findings about the Appellant's mental health. Is inadequacy of reasons a question of law? 1. We note that the question of whether inadequacy of reasons is a question of law was addressed in Starr v Johnston [2023] NSWCATAP 190 at [42] – [47], an Appeal Panel decision delivered after the hearing. 42 In Orr the Court of Appeal, and in Origin Concepts and P8 the Appeal Panel, proceeded on the basis that failure by the Tribunal to provide proper reasons, raised a question of law. However, the recent decision of Director of Public Prosecutions v Tiller [2023] NSWSC 187 (Tiller), makes the observation that this may not always be the case. 43 Tiller concerned an appeal from a decision of a Magistrate, which included a ground that the Magistrate had failed to provide proper reasons. McNaughton J reviewed the authorities, principally those arising in the context of criminal law proceedings. She did not refer to any decisions of the Appeal Panel nor decisions from the Appeal Panel to the Court of Appeal. 44 At paragraph [48] she set out the following passage from Beech - Jones J in JP v Director of Public Prosecutions [2015] NSWSC 1669 at [65]: 'A failure to provide reasons can constitute an error of law (Campbelltown City Council v Vegan [2006] NSWCA 284 [131]). A complaint that a judicial officer did not provide adequate reasons could involve a question of law alone if a question is posed in terms that are unrelated to the circumstances of the case particular case, but pose a question as to the obligation of the particular officer to address a particular matter. A complaint of this kind was upheld in Shepherd v Nestoriadis [2015] NSWSC 348 (Shepherd). However, as discussed below in [72], if the complaint concerns a matter of fact then on appeal restricted to a question of law, the obligation to provide reasons is of very limited content (Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 281- 282 (Soulemezis).'" 45 In Shepherd v Nestoriadis [2015] NSWSC 348 at [27] the Court referred to the following statement from Gibbs CJ in Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88: "There is a question of law alone if the question can be stated and considered separately from the facts to which it may be connected in a given case." 46 In Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247, Kirby P at 259 observed that a judge is obliged to state generally and briefly the grounds which had led him or her to the conclusion reached as to disputed factual questions and to list the findings on the principal contested issues. 47 A ground of appeal that the Tribunal failed to provide proper reasons will rarely involve the consideration of a question of law alone. One instance might be where there was a failure to address whether the Tribunal had jurisdiction to hear and determine the matter before it. However, most appeals will involve a consideration of questions of mixed fact and law, as was the case in Orr (except perhaps for one matter), and in Origin Concepts and in P8 Auto. It appears to us that the present matter also falls into that category. 1. This issue was not raised at the hearing and we did not have the benefit of any submissions on that topic. We have proceeded on the basis that, in certain circumstances, failure by the Tribunal to provide adequate reasons identifies, at least, a mixed question of fact and law. When will reasons be inadequate? 1. There is no common law duty to give reasons for making a statutory decision: Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7. Any duty must be derived from the statute itself. The legal principles relevant to the statutory duty under the NCAT Act were recently summarised by the Appeal Panel in Starr v Johnston [2023] NSWCATAP 190 at [37] – [40]: 37 Section 62(2) of the NCAT Act creates an express obligation for the Tribunal to give written reasons for a decision in response to a request from a party. When such a request is made, a written statement of reasons must be given within 28 days and must, by virtue of s 62(3) of the NCAT Act, set out: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 38 In New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) two members of the New South Wales Court of Appeal raised but did not decide the question of whether there is any duty, whether statutory or otherwise, for the Tribunal to give reasons for a decision in the absence of a request from a party under s 62(2) of the NCAT Act: Bell P at [54], Ward JA at [110-[114]. Bell P at [55] observed that it is not unreasonable to suppose that s 62(3) of the NCAT Act supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2) of the NCAT Act, and that the balance of his reasons proceeded on that basis. 39 Even though there is no other express statutory duty to give reasons set out in the NCAT Act (other than pursuant to cl 11 of Sch 6 which relates to decisions of the Tribunal in the Guardianship Division), the Tribunal nonetheless endeavours, as a matter of good practice, to provide reasons for final or contested decisions: NCAT Policy 2, Publishing Reasons for Decisions, at [5]-[6]. 40 In Orr Bell P at [66], [68], [70], [71] and [77] set out the following principles with respect to the adequacy of reasons of the Tribunal (with Ward JA at [109] agreeing): "[66] In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] (Resource Pacific). The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255 (Bisley)." "[68] In terms of the former parameter, the quantity (or detail) of reasons, necessary for those reasons to be adequate may vary both with the nature of the decision maker, i.e. whether or not it is a court of tribunal, and, if the latter, possibly the type of tribunal, and the nature of the question being decided: Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24 at [56] per French CJ and Kiefel J (Wainohu). Thus even superior courts are not required to give reasons for every interlocutory decision: Wainohu at [56], [98], Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [42]; Lodhi v Attorney General (NSW) [2013] NSWCA 433; 241 A Crim R 477 at [29]; R v Kay; Ex parte Attorney-General (Qld) [2017] 2 Qd R 522; [2016] QCA 269 at [27]) and other aspects of decision making such as findings on pure credibility or matters that necessarily call for estimation or impression may require less or only allow for limited reasoning to be exposed: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 but cf. Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34], Pollard at [65] and see the discussion in Resource Pacific at [48]−[58]." (emphasis in original) "[70] As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court." (emphasis in original) [71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. [77] These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [14] (Gleeson CJ); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Pozzolanic at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291." Did the Tribunal err on a question of law by not providing adequate reasons? 1. We understand the first part of this ground of appeal to be that the Tribunal failed to give adequate reasons for admitting the Confidential Material and for giving weight to that material. The reference to the paragraph of the interlocutory decision in the ground of appeal is a reference to the fact that the Tribunal (differently constituted) made interlocutory confidentiality orders and noted that "the issue of admissibility" of the Confidential Material would need to be decided at the substantive hearing. 2. In Pendrick v Commissioner of Police, NSW Police Force [2021] NSWCATAD 326 at [29] the Tribunal held that the question of whether to admit confidential material into evidence (and whether to prohibit disclosure of the material to a party) raises different issues from those raised when an administrator objects to lodging the documents with the Tribunal: It does not follow from the making of an order under s 59 that the administrator will be permitted to rely upon the documents the subject of that order in evidence, without the applicant having access to them. The questions of whether to admit the material into evidence, and whether to make orders under s 64(1)(d) of the NCAT Act prohibiting the disclosure of that material to a party, raise very different issues. 1. We agree. The test for determining whether the Commissioner should be excused from lodging certain documents is, essentially, the test in s 64(1)(c) of the NCAT Act, namely that the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason. Whether that evidence has probative weight and should be relied on, raises different issues. In Grant v Commissioner of Police [2020] NSWCATAD 158 at [23], the Tribunal made some observations about the weight it would give to confidential evidence to achieve "substantial justice": In circumstances where the applicant is not entitled to see the confidential evidence, I have taken an approach to that evidence which is designed to achieve, as far as possible, "substantial justice." That is, I have given little or no weight to the following: (1) Allegations about the applicant, where the source of the allegations is not identified; (2) Evidence which is adverse to the applicant, where the applicant could have been, but was not, cross examined in relation to the substance of the evidence; (3) Speculative comments in the evidence. 1. The Tribunal is not strictly bound by the rules of evidence, including the rules about the admissibility of evidence. Section 38(2) of the NCAT Act provides that: 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. 1. While the Tribunal is not bound by the rules of evidence, Evatt J made the point in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 that ". . . this does not mean that all the rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth." In Pochi v Minister for Immigration and Ethnic Affairs, (1979) 36 FLR 482 at 492, Brennan J, in his capacity as President of the Administrative Appeals Tribunal, cited that passage when exploring the limits of the Tribunal's fact finding powers: The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that 'this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force' … to depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force … 1. It follows that the Tribunal does not have to be satisfied that the material on which a party relies complies with the rules of evidence or is "admissible" in that sense. The Tribunal may give weight to evidence that would be excluded in court proceedings, including hearsay and opinion evidence, as long as that material is relevant and has "rational probative force". 2. At [5] and [9] of the Tribunal's reasons, it is apparent that the Tribunal has relied on the Confidential Material and the content of the confidential hearing held on 27 October 2022. Paragraphs [41] to [49] of the Tribunal's confidential reasons describe and consider the Confidential Material. 3. At [52], the Tribunal summarised the submissions made by Mr Elley's lawyer about the admissibility and weight of the Confidential Material: Mr Tiedt submitted that the confidential material [in confidential exhibit CR2] probably consisted of entries in the police COPS system. The s 59 orders had left it to this tribunal to decide on admissibility. It would be unfair if the applicant was not able to be present when such evidence was adduced and he had no opportunity to cross-examine. Materials such as COPS reports needed to be treated with caution because they were unsworn, were not put to the applicant and there was no opportunity for cross-examination. There was little of substance in the 58 documents. 1. At [78], the Tribunal referred to this submission and gave the following response: . . . Mr Tiedt submitted that it would be unfair to give weight to evidentiary material which the applicant had not seen, could not counter and on which he could not cross-examine. It has been held, however, that any derogation from established principles of procedural fairness that could arise from the making of orders under s 64(1) of the CAT Act is not a reason to avoid making such an order. The provision implicitly permits such a denial of procedural fairness: Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158, [24]. The same rationale applies to the use made of confidential evidence in the tribunal's consideration of the issues. 1. As well as the open evidence, the Tribunal summarised key parts of the Confidential Material at [79]-[82]. At [83], the Tribunal made the following findings in relation to that evidence: The evidence does not show any sustained history of violence or threatened violence, with or without firearms, but it does depict a pattern of aggressive behaviour, violent disputation with others in the community, intense antagonism towards police, seemingly obsessive behaviour and a relationship with his ex-wife that is still tense and appears to contain the potential for explosive outbursts. 1. The Tribunal went on to give the following reason for giving weight to the Confidential Evidence: . . . there is consistent evidence over a long period, extending almost to the present time, to support such a conclusion. 1. At [95], the Tribunal referred to the admissibility and probative value of a particular piece of evidence in the Confidential Material. Without disclosing the evidence to which the Tribunal was referring, the Tribunal decided that a particular piece of evidence "has not been tested". 2. [NOT FOR PUBLICATION]. 3. [NOT FOR PUBLICATION] 4. Mr Elley had submitted that materials such as COPS reports needed to be treated with caution because, for example, they were unsworn. The Tribunal's response was that the "same rationale" applies, that is, if orders have been made under s 64 of the NCAT Act, the Tribunal is permitted to make use of confidential material. 5. Reading the decision fairly and as a whole, it is apparent that the Tribunal did take the Confidential Material into account, including comments by police, when making findings of fact. The adequacy of reasons ground of appeal does not require the Tribunal in these kinds of proceedings to give reasons as to why material on which a party relies satisfies the rules of evidence or is "admissible" in that sense. It can readily be implied that the Tribunal considered that most of the Confidential Material to which it referred was relevant and had rationally probative force. 6. The Tribunal also set out "the findings on material questions of fact, referring to the evidence or other material on which those findings were based." That is one of the "minimum characteristics" that a Tribunal's reasons must possess: New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77]. The Tribunal did not give the kind of detailed reasoning about the so called admissibility of the Confidential Material, and the weight to be attributed to that material, which was provided in Grant v Commissioner of Police [2020] NSWCATAD 158 at [23]. But the Tribunal, on appeal, is not required determine the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard. For the reasons we have given, the Tribunal's reasons comply with the minimum acceptable standard. 7. The first part of Ground 1 of the appeal is dismissed. 8. The second part of Ground 1 is that the Tribunal did not give adequate reasons for relying on comments by police to make findings about Mr Elley's mental health. At [77] and [90] the Tribunal found that: 77. An event report dated 23 June 2022 (exhibit R1, p 40) describes a claim made by the applicant at Castle Hill police station on 20 June 2022 that he thought his WordPress account, which he believed he had made private, was being hacked. He brought his laptop to the station to show how he thought that was being done and demanded that detectives investigate the matter and also engage a 'tec team'. Police tried to explain to him how to change the public setting on his articles to prevent people from commenting on his blogs, but he refused to accept their explanation and insisted he was being hacked, despite police showing him the setting on the website. No police action was taken, but the report comments that "Police observed the P/R [person reporting] possibly having mental health issues". . . . 90. An applicant's mental health is also a strong consideration in determining whether a person is fit and proper to hold a firearms licence. The applicant's recent interaction with police on 20 June 2022 suggests that his mental health remains a live issue. 1. Mr Elley submitted that the Tribunal has given weight to an observation by a police officer of Mr Elley "possibly having mental health issues" and given inadequate reasons for the finding that "mental health remains a live issue". In particular, the Tribunal did not give reasons for rejecting the expert professional opinions of mental health practitioners, other than suggesting at [108] that an up to date report would be prudent. 2. The Tribunal did not provide a specific reasons for "admitting" the police officer's observations about Mr Elley's mental health or the weight that it gave to that evidence. As we have said, the adequacy of reasons ground of appeal does not require the Tribunal in these kinds of proceedings to give reasons as to why material on which a party relies satisfies the rules of evidence or is "admissible" in that sense. It can readily be implied that the Tribunal considered the police officer's observation to be relevant and to have rationally probative force. 3. At [77], the Tribunal was not making a finding, it was merely recording the evidence. At [90] – to [97], the Tribunal made findings under the heading "Mental Health". At [90] the Tribunal found that an applicant's mental health is a strong consideration in determining whether a person is fit and proper to hold a firearms licence. The Tribunal went on to state that Mr Elley's recent interaction with police "suggests that his mental health remains a live issue". As part of the reasoning process, the Tribunal was attributing some probative value to the police officer's relatively recent observation. 4. The Tribunal went on at [91] to summarise a report from a psychologist, Mr Schreiner. The report concluded that he was not suffering from a mental condition that would put public safety at risk if he had possession of a firearm, but thought he would still experience difficulty expressing frustrations and anger and should resume counselling sessions and explore assertiveness training. 5. It is not the case, as Mr Elley suggests, that the Tribunal rejected Mr Schreiner's opinion and failed to give adequate reasons for doing so. Rather, the Tribunal referred to that evidence, as well as to the evidence in the Confidential Material, and gave the following reasons for its findings: The applicant thus has quite a substantial psychiatric history but says he has not required any assistance since 2019 and that his problems are resolved. Mr Schreiner did suggest in his 2020 report that the applicant should resume counselling sessions with Ms Malone, but he has not done so. At the hearing he strongly denied any suicidal ideation, but there are observations of such ideation earlier in the expert evidence, though not of any clear intent or planning. There are, however, recent reports of obsessive or seemingly abnormal behaviour. With the tensions with his ex-wife still unresolved, and likely to remain so given their necessary interactions over custody and the approach of the AVO proceedings against her in May 2023, prudence may dictate the preparation of an updated evaluation to determine whether his actions merely represent an inconsequential eccentricity or instead something that could erupt into a danger to public safety should relations become exacerbated. 1. By setting out the findings on material questions of fact and referring to the evidence or other material on which those findings were based, the Tribunal complied with one of the "minimum characteristics" that a Tribunal's reasons must possess: Orr at [77]. The Tribunal did not give the kind of detailed reasoning about the so called admissibility of the Confidential Material, and the weight to be attributed to that material, which was provided in Grant v Commissioner of Police [2020] NSWCATAD 158 at [23]. But, as we have said, it is not the function of the Tribunal on appeal to determine "the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard": 0rr at [66]. For the reasons we have given, the Tribunal's reasons comply with the minimum acceptable standard. 2. The second part of appeal ground 1 is dismissed. Ground 3 – incorrect interpretation of s 11(7) of the Firearms Act Summary of ground of appeal 1. Ground 3 is that the Tribunal erred in law in its interpretation of s 11(7) of the Firearms Act. That provision states that: 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. 1. Mr Elley framed this ground of appeal as being that the Tribunal erred in law in its interpretation of s 11(7) of the Firearms Act by imposing a requirement that he establish that all doubt could be eliminated, rather than focusing on "only real and identifiable risk". That ground was expressed as follows in Mr Elley's written submissions: In making the determination to reject the Applicant's appeal on the basis of s 11(7) of the Firearms Act (see Reasons at [109] ff), despite the positive evidence about the Applicant's mental health and the fact that he had no recorded findings by a Court against him, save for the safe storage breach referred to in Reasons at [89], the Tribunal appears to have impermissibly imposed an obligation on the Applicant to persuade it that all doubt could be eliminated notwithstanding the Tribunal's references to "only real and appreciable risk" needing to be considered. 1. Mr Elley submits that in circumstances where there was no evidence of any misuse of firearms; where the Tribunal found at [89] that he "takes a conscientious approach to safe storage and firearms safety generally"; and where the Tribunal acknowledges that he has never been the subject of any final order in relation to domestic violence, the only clear inference is that the Tribunal required him to prove that there could be 'no future risk'. Consideration 1. The Tribunal correctly identified the law. At [112]-[113], the Tribunal summarised relevant authorities about the nature and extent of the risk when considering whether issuing a firearms licence would be contrary to the public interest. It is not in dispute that the Tribunal was correct to state that, "[O]nly real and appreciable risk needs to be taken into account". 2. At [83] the Tribunal summarised some of the findings supporting the conclusion that issuing the licence would be contrary to the public interest: The evidence does not show any sustained history of violence or threatened violence, with or without firearms, but it does depict a pattern of aggressive behaviour, violent disputation with others in the community, intense antagonism towards police, seemingly obsessive behaviour and a relationship with his ex-wife that is still tense and appears to contain the potential for explosive outbursts. 1. The Tribunal added that there was "consistent evidence over a long period, extending almost to the present time, to support such a conclusion". 2. Although framed as a question of law about the interpretation of s 11(7) of the Firearms Act, this ground of appeal is about the sufficiency of the evidence. It is a challenge to the merits of the Tribunal's decision. As Glass JA explained in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155: To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it" may involve an error of fact, but it does not involve an error of law. 1. The Tribunal made findings of fact that Mr Elley contends were against the weight of the evidence. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 157, Glass JA, with whom Samuels JA agreed, said that: ​​…when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the [course] of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council; Australian Gas Light Co v Valuer-General. 1. If framed in that way, the question of law would be whether this case is one of those "marginal cases" where the statutory test is not satisfied as a matter of law because no other application is reasonably open. However, that is not how this ground of appeal was expressed. This ground of appeal does not identify a question of law and is dismissed. Ground 4 – making findings of fact not supported by logically probative evidence. 1. Mr Elley submits that the Tribunal made the following findings of fact which were not supported by logically probative evidence: 1. adverse findings about the Appellant's mental health at the time of the hearing, see e.g. Reasons at [77]; [94]; [97]; [106]; [107]; 2. that the Appellant's "recent interaction with police on 20 June 2022 suggests that his mental health remains a live issue": Reasons at [90]; 3. the finding at [83] that the evidence "does depict a pattern of aggressive behaviour, violent disputation with others in the community, intense antagonism towards police, seemingly obsessive behaviour and a relationship with his ex-wife that is still tense and appears to contain the potential for explosive outbursts"; 4. the finding at [71] that "There is, however, enough evidence to show that he has indeed been a party to ongoing domestic violence incidence"; 5. the finding at [97] that tensions with the Appellant's ex-wife were still "unresolved" and "likely to remain so given their necessary interactions over custody"; and 6. the finding at [72] that the events of 7 September 2018 as a "serious instance of domestic violence". Consideration 1. The question of whether there is any evidence for a finding of fact is a question of law. Put another way, if "it can be shown that there is no evidence of a primary fact", that is an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 157 per Glass JA. The High Court has confirmed that the "no evidence" ground of appeal is a question of law, not a question of fact: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [91] per Hayne, Heydon, Crennan and Kiefel JJ. No evidence essentially means no "probative" evidence. The Appeal Panel summarised the relevant principle in Meacham v Commissioner of Police [2020] NSWCATAP 107at [54]: Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. 1. Material that tends logically to prove the existence or non-existence of a material fact is "probative evidence", whether it is legally admissible or not : Re Pochi v Minister for Immigration and Ethnic Affairs: [1979] AATA 64; (1979) 36 FLR 482, 492-3 per Brennan J. Findings of fact about the Appellant's mental health at the time of the hearing 1. Not all the "findings" identified by Mr Elley in this ground of appeal are findings of fact. We will confine our considerations to the findings of fact italicised below: 1. The applicant thus has quite a substantial psychiatric history but says he has not required any assistance since 2019 and that his problems are resolved. At [96]. 2. Overall, the applicant appears as a man of good character and prudent attitudes, but with unduly combative and possibly obsessive tendencies. He has accumulated a significant mental health history as discussed above, which dates back to at least 2017 . . . That history includes observations of problems with anger management, depression and in one instance suicidal ideation (but no intent). There are also lay observations of seemingly obsessive behaviour. At [106]. 3. While the explosive relationship with his ex-wife has been partly resolved since their separation, the continuing contacts over child custody and the applicant's pending AVO proceedings against his ex-wife would appear to contain the potential for further outbreaks of angry conflict. As it has been almost 2½ years since Mr Schreiner's favourable evaluation, it would appear to me prudent to seek a more up-to-date report. In the absence of such evidence I am unable to make a positive finding that the applicant is a fit and proper person to hold a licence within the meaning of s 11(3)(a). At [108]. 4. For the reasons given above in relation to fitness and propriety, I do not think the currently available open and confidential evidence permits the tribunal to find that issuing a firearms licence to the applicant would involve no real or appreciable risk to public safety. I therefore find that it would not at present be in the public interest for the applicant to be issued with a licence. 1. The Tribunal summarised two evaluations performed by a psychologist, Mr Schreiner, the first on 15 June 2017 and the second on 19 June 2020. The Tribunal also took into account a report dated 2 February 2021 by a consultant psychiatrist, Dr Andrews, in connection with custody proceedings in the Family Court. 2. At [91] to [93], the Tribunal refers to medical reports which describe Mr Elley as: 1. having reactive depression in 2020; 2. having anger difficulties in 2017 (but no formal mental health condition having been diagnosed at that time); 3. having an emotional breakdown in 2019 which resulted in Mr Elley being hospitalised; 4. being diagnosed with a "major depressive disorder relapse"; 5. being readmitted to hospital and then being diagnosed with "adjustment disorder with depressive features"; and 6. having passive thoughts of suicide. 1. At [95] the Tribunal provided confidential reasons and concluded at [96] and [97] that: 96 The applicant thus has quite a substantial psychiatric history but says he has not required any assistance since 2019 and that his problems are resolved. Mr Schreiner did suggest in his 2020 report that the applicant should resume counselling sessions with Ms Malone, but he has not done so. At the hearing he strongly denied any suicidal ideation, but there are observations of such ideation earlier in the expert evidence, though not of any clear intent or planning. 97 There are, however, recent reports of obsessive or seemingly abnormal behaviour. With the tensions with his ex-wife still unresolved, and likely to remain so given their necessary interactions over custody and the approach of the AVO proceedings against her in May 2023, prudence may dictate the preparation of an updated evaluation to determine whether his actions merely represent an inconsequential eccentricity or instead something that could erupt into a danger to public safety should relations become exacerbated. 1. There is some rationally probative evidence for the findings the Tribunal made about Mr Elley's mental health. The Tribunal's findings are not based on mere suspicion or speculation. This aspect of Ground 4 is dismissed. Finding of "ongoing domestic violence incidents" and that events of 7 September 2018 were a "serious instance of domestic violence" 1. At [71] the Tribunal made the following finding: The applicant has never been convicted of any offence of violence, or any other non-traffic offence, nor has he ever been subject to a final AVO. He has never used, or threatened to use, firearms in his altercations with his ex-wife. There is, however, enough evidence to show that he has indeed been a party to ongoing domestic violence incidents, whether provoked or not, and whether or not accompanied by, or consisting of, violence on the part of M****. The latter has brought four AVO applications against him, but all have been either dismissed or withdrawn. 1. At [72] the Tribunal stated that: Police responded on 13 September 2018 to a report of a serious instance of domestic violence at the applicant's house on 7 September 2018, following which he was charged with offences of malicious damage, assault occasioning actual bodily harm and a safe storage offence. He was acquitted of the malicious damage and assault charges but was placed on a 12-month CRO in respect of the safe storage contravention, for which he had pleaded guilty. 1. The Tribunal made the following finding at [75]: It is not suggested that either of the spouses in this case used drugs or that any particular allegations of violence have been established. 1. A domestic violence incident is described in a Court Attendance Notice requiring Mr Elley to appear at a Local Court on 18 September 2018. The allegations include that an argument took place between Mr Elley and his ex-wife, and that Mr Elley threw his dinner on the floor. The Fact Sheet goes on: With the young children looking on, the Accused yelled at the Victim and demanded the phone. The Accused grabbed at the Victim a number of times in an attempt to get the phone. The Accused eventually took hold of the phone and using two hands pushed the Victim to the right side of the body knocking her to the floor. This resulted in bruising to the upper right arm of the Victim. The Accused walked off towards the bathroom while using the phone and the Victim followed after him trying to get the phone back. The Accused initially blocked her entry at the bathroom and has thrown the phone into the toilet. The Victim ran over to retrieve the phone from the toilet bowl and at this time another scuffle took place and the Accused pushed her to the ground and walked away. 1. At [73] – [75], the Tribunal summarised the allegations in the Fact Sheet and Mr Elley's response to those allegations: In administrative review proceedings of this nature, however, it is not the fact of conviction or acquittal that is crucial, but the nature of the conduct disclosed in the evidence. The police fact sheet describing the events leading to the applicant's arrest on 13 September 2018 (exhibit R1, pp 26 – 31) describes a dispute in the presence of the children on 7 September over the cost of a recent vehicle purchase by M*** that led to the applicant throwing his dinner on the floor. The struggle for possession of M****'s mobile telephone after she had taken a picture of the mess resulted in the applicant allegedly throwing the telephone down the lavatory. When the dispute continued the following day at M****'s father's residence, the applicant allegedly became abusive towards him, shouting that he would destroy his business and reputation in the town. When interviewed by police in relation to the alleged offences, the applicant admitted that an altercation had taken place and said "I took the phone because she threatened me" and said he had thrown the telephone down the lavatory because "I was upset". Asked about statements that he had pushed M**** in the bathroom, he is recorded as stating that "That's not true she picked me right up and threw me into the bathtub". Police noted that the applicant is significantly bigger and taller than M*****. Nevertheless, it is possible that something of that nature could have occurred. In Re Cousens and Minister for Immigration and Citizenship [2007] AATA 1426, the federal Administrative Appeals Tribunal received expert psychological evidence stating that "men and women are now equally violent towards each other, largely owing to the effect of drugs. Recent social science research is said to support the view that domestic violence is now perpetrated by both sexes in roughly equal proportions". (It is not suggested that either of the spouses in this case used drugs or that any particular allegations of violence have been established.) 1. The Tribunal noted that Mr Elley was found not guilty of the offences for which he was charged. Where the allegations in the Fact Sheet included pushing the Victim to the ground on two occasions, a finding that police had responded to a report of "a serious instance of domestic violence" was supported by some rationally probative evidence. 2. Similarly, the Tribunal's finding that Mr Elley has "been a party to ongoing domestic violence incidents" was supported by some probative evidence. That evidence was the four AVO applications Mr Elley's ex-wife has brought against him (all of which were dismissed or withdrawn) and Mr Elley's application for an AVO against his ex-wife which is currently pending before the courts. Tribunal's findings are not based on mere suspicion or speculation. This aspect of Ground 4 is dismissed. Finding that tensions with ex-wife are unresolved and likely to remain so 1. The Tribunal found at [97] that tensions with the Appellant's ex-wife were still "unresolved" and "likely to remain so given their necessary interactions over custody". 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION]. 4. The Tribunal's finding that tensions between Mr Elley and his wife are unresolved and likely to remain so, is supported by the evidence we have identified. In our view, that evidence is logically probative because it tends to prove the existence or non-existence of a material fact Tribunal's findings are not based on mere suspicion or speculation. This aspect of Ground 4 is dismissed. Finding of violent disputation with others in the community 1. At [83], the Tribunal found, on the basis of the Confidential Material, that: The evidence does not show any sustained history of violence or threatened violence, with or without firearms, but it does depict a pattern of aggressive behaviour, violent disputation with others in the community, intense antagonism towards police, seemingly obsessive behaviour and a relationship with his ex-wife that is still tense and appears to contain the potential for explosive outbursts. 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION] 5. The Commissioner of Police submits that the Tribunal's overall findings are at [104] to [108], where there is no mention of violence, and that the reference to violent disputations at [83] is not a critical part of the Tribunal's findings. 6. The Macquarie Dictionary defines "violent" as adjective 1. acting with or characterised by uncontrolled, strong, rough force: a violent blow; a violent explosion; a violent storm. 2. acting with, characterised by, or due to injurious or destructive force: violent measures; a violent death. 3. intense in force, effect, etc.; severe; extreme: violent heat; violent pain; violent contrast. 4. roughly or immoderately vehement, ardent, or passionate: violent feeling. 5. furious in impetuosity, energy, etc.: violent haste. 1. [NOT FOR PUBLICATION] 2. This aspect of Ground 4 is dismissed. Ground 5 - the Tribunal failed to respond to three clearly articulated substantive arguments and submissions 1. The particulars of this ground of appeal are that: 1. In closing submissions at the hearing, the Appellant's solicitor made a detailed submission about the consequences that should flow from his having pleaded guilty to a breach of the safe storage provisions of the Firearms Act, which resulted in no conviction being recorded. It was submitted that the court outcome (no conviction recorded) was highly relevant as had a conviction been recorded, the Applicant would have been statutorily disqualified from holding a firearms licence and the Tribunal ought to take that into account: Transcript of hearing, p 44, lines 5-22. There is no reference to that submission in the reasons for decision. 2. In relation to the Appellant's mental health, it was submitted that the mere fact he had sought treatment for his mental health issue (specifically reactive depression) at a time he was experiencing great stress on the breakdown of his marriage was not a matter from which any adverse conclusions ought to have been drawn. On the contrary, it was a matter that was to the Appellant's credit as it showed self-awareness; Transcript at p 47, line 21 to p 48 line 15; written submissions filed on 27 September 2022. Although noting the argument at [58], the Tribunal failed to respond to that submission; 3. At [59], the Tribunal reported the following submission but did not respond to it; In relation to event report E89356834, 20 June 2022 (exhibit R1, p 40), Mr Tiedt pointed out that the applicant had complained to police, who had declined to take action. As the applicant was not cross-examined on this point and it was not put to him, it warranted no weight. It was a summary lacking a logical basis and was unreliable on the question of mental health. Consideration 1. A failure to make a finding on "… a substantial, clearly articulated argument relying upon established facts" can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ; 73 ALD 321; [2003] HCA 26 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. If the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263 at [63]. 2. The Tribunal made findings about the circumstances of the storage offence and concluded at [56] that "the safe storage contravention in 2018 need not be an insuperable obstacle to his recovering his licence". 3. Mr Elley submitted that the Tribunal should have taken into account that had he been convicted of a storage offence he would have been disqualified from holding a licence. However, that was not a "substantial argument" that could lead to a conclusion that the Tribunal had failed to exercise jurisdiction. The Tribunal did not misunderstand or misconstrue Mr Elley's case. 4. We have reached the same conclusion about the submission that the Tribunal should have regarded it as being to Mr Elley's credit that he sought treatment for his mental health issues. That submission is far from a "substantial argument" that could lead to a conclusion that the Tribunal had failed to exercise jurisdiction. The Tribunal did not misunderstand or misconstrue Mr Elley's case. 5. The submission that the Tribunal did not respond to a submission that event report E89356834 should be given no weight, falls into the same category. It is not a "substantial argument" that could lead to a conclusion that the Tribunal failed to exercise jurisdiction. The Tribunal did not misunderstand or misconstrue Mr Elley's case. 6. This ground of appeal is dismissed. Appeal on the merits of the Tribunal's decision 1. Mr Elley also seeks leave to appeal from the merits of the Tribunal's decision: NCAT Act, 80(2)(b). The Appeal Panel summarised the general principles in relation to the giving of leave in Collins v Urban [2014] NSWCATAP 17 at [84]: The general principles derived from these cases can be summarised as follows: In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; Ordinarily it is appropriate to grant leave to appeal only in matters that involve: issues of principle; questions of public importance or matters of administration or policy which might have general application; or an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; a factual error that was unreasonably arrived at and clearly mistaken; or the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 1. One reason Mr Elley gave for seeking leave to appeal on the merits was so that the Appeal Panel could independently review the Confidential Material. Neither Mr Elley nor his lawyers had access to that material and Mr Elley submits that, in fairness, the Appeal Panel should determine the merits of the case. 2. The fact that the Tribunal has based its decision, in part, on confidential evidence is not a sufficient reason for granting leave to Mr Elley to appeal against the merits of the decision. If that were the general principle, the Appeal Panel would have to give leave to appeal on the merits to every appellant where confidential material had been considered by the Tribunal. 3. Mr Elley also submits that findings made by the Tribunal about his mental health were not supported by the expert evidence. The Tribunal concluded at [108] that: While the explosive relationship with his ex-wife has been partly resolved since their separation, the continuing contacts over child custody and the applicant's pending AVO proceedings against his ex-wife would appear to contain the potential for further outbreaks of angry conflict. As it has been almost 2½ years since Mr Schreiner's favourable evaluation, it would appear to me prudent to seek a more up-to-date report. In the absence of such evidence I am unable to make a positive finding that the applicant is a fit and proper person to hold a licence within the meaning of s 11(3)(a). 1. The Tribunal approached its task correctly by referring to the relevant evidence and making material findings of fact on the basis of that evidence. Those findings included that Mr Elley is not a "fit and proper person" who "can be trusted to have possession of firearms without danger to public safety or to the peace". Despite the reference to an up-to-date report, the absence of such a report was not the reason the Tribunal made that finding. Rather, the finding was made on the basis of the evidence including the Confidential Material. 2. None of the circumstances listed in Collins v Urban apply in this case and we are not persuaded that that there is any other basis on which we should give leave to appeal on grounds other than a question of law. Orders 1. Leave is refused to appeal on grounds other than a question of law. 2. The appeal is dismissed. 3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the Confidential Material and confidential exhibit CR2, or matters contained in the Confidential Material and confidential exhibit CR2, is prohibited. 4. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the Confidential Material and confidential exhibit CR2, or matters contained in the Confidential Material and confidential exhibit CR2 is restricted to the Respondent, the legal representatives for the Respondent and the tribunal. 5. Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR2, is prohibited and the contents of all paragraphs in these reasons marked "[NOT FOR PUBLICATION]" are not to be published or disclosed to anyone except the Respondent and the legal representatives for the Respondent. ********** 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: 25 August 2023