Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Phillpott v Commissioner of Police, NSW Police Force [2024] NSWCATAD 40 Hearing dates: 11 October 2023 and 28 November 2023 Date of orders: 16 February 2024 Decision date: 16 February 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: L Andelman, Senior Member Decision: The decision of the respondent is affirmed. Catchwords: ADMINISTRATIVE REVIEW –firearms licence – revocation – public interest – fit and proper person -formerly held the position of an armourer. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Firearms Regulation 2017 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Commissioner of Police v Joseph [2016] NSWCATAP 124 Constantin v Commissioner of Police [2013] NSWADTAP 16 Davos v Commissioner of Police [2013] NSWADT 7 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Martin v Commissioner of Police, NSW Police Service [2017] NSWADT 97 Sobey v Commercial and Private Agents Board (1979) 22 SASR 7 Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 Category: Principal judgment Parties: Sharon Phillpott (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Applicant: Mainstone Lawyers Respondent: Lindsay Taylor Lawyers File Number(s): 2023/00074071 Publication restriction: 1. Pursuant to s49 of the Civil and Administrative Tribunal Act 2013 the hearing as it related to the Confidential Material and the Confidential Statement was conducted in the absence of the applicant her representative and the public. 2. Pursuant s 59 of the Administrative Decisions Review Act 1997 the respondent is not required to lodge copies of the Confidential Material or Confidential Statement with the Tribunal in accordance with s 58 of the Administrative Decisions Review Act 1997. 3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 until further order of the Tribunal the publication of the Confidential Material and Confidential Statement is prohibited. 4.Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 until further order of the Tribunal the disclosure of the Confidential Material and Confidential Statement is restricted to the respondent the respondent's legal representatives and the Tribunal. 5. Pursuant to s 64(1)(b) and s64(1)(c) of the Civil and Administrative Tribunal Act 2013 until further order of the Tribunal the publication or reporting of the confidential hearing including any evidence given in the hearing is prohibited. 5. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 paragraphs 21 to 23 of this Decision are not to be disclosed to the applicant. REASONS FOR DECISION 1. This is an application by Ms Phillpott seeking a review of the internal review decision of the Commissioner of Police (the Commissioner) made on 15 February 2023 to revoke the Category AB firearm licence issued on 9 June 2020. That licence was suspended on 12 June 2021 and revoked on 7 October 2022. 2. Ms Phillpott has had a Category AB firearm licence since 6 May 2005 for the genuine reasons of sport/target shooting and recreational hunting/vermin control. The suspension of the licence also resulted in the cancellation of the Firearms Safety Training Instructor Approval. 3. For the reasons that follow, the Tribunal affirms the Commissioner's decision. Background Facts 1. Ms Phillpott was for a long period the Club Secretary, Club Treasurer and Club Armourer of Marconi Clay Target Club (Marconi Club). 2. On 12 October 2018 Sutherland Shire Licensing Police (the police) attended at the Club as Ms Phillpott advised that a second armourer was being added to the Club licence and there was a requirement to conduct a safe storage inspection of the premises. 3. In July 2019 the Firearms Registry conducted an inspection of Marconi Club and had no safety concerns. 4. In early 2021 the police found that the safe storage area for firearms at the Marconi Club did not comply with Level 7 requirements and no firearms could be stored at the Marconi Club. Ms Phillpott informed the police that she would move the firearms to her safe storage area at home. 5. On 5 February 2021, police attended at the Marconi Club and identified numerous issues including failure to produce P650 Forms - unlicensed person shooting on an approved range to undertake an approved firearm safety training course, records of member's participation in shooting activities, failure to confirm compliance with annual return to the Firearms Registry, failure to advice change of membership status within 7 days. 6. On 12 May 2021, there was a discussion between Ms Phillpott and a police officer about 3 firearms listed as being stored at the Marconi Club in circumstances where it had previously been determined by police that firearms were not to be stored at the club as the safe storage did not meet level 7 requirements. It is recorded in the COPS Event that Ms Phillpott told police that two of the firearms being shotguns had been disposed of but due to the backlog at the registry the paperwork had not been finalised. Ms Phillpott stated that the firearms had been disposed sometime last year prior to them using the dealer portal. 7. Ms Phillpott denied that she told the police that she disposed of the two firearms or that she had surrendered the two firearms. The firearms belonged to a member who had to leave Australia suddenly due to a family emergency and asked Ms Phillpott to store the firearms for him. During re-examination Ms Phillpott stated that she had completed registration paperwork to transfer the firearms with the registry to a different storage location and that the words 'disposed of' can still mean that one has physical possession. 8. On 5 June 2021, the police found these two firearms in the back of her car. The police formed the view that Ms Phillpott had not been honest with the police when she told them that she disposed of the firearms prior to May 2021. 9. On 11 June 2021, Ms Phillpott was asked to attend a police station in regard to some complaints made about Marconi Club, and she did so on the following day. A formal police interview was conducted, and the following allegations were put to her, which she denied: 1. Immediately following corporate day shoots conducted in 2017 and 2018 at the club, she destroyed P650 forms for the shoots; 2. She retained or kept money from corporate day shoots personally; 3. She removed cash from the Marconi Club till and kept the money for personal use; 4. She engaged Mr Huston to destroy P650 forms in 2016 and 2017; and 5. She paid for her personal firearms licence with Marconi account card. 1. Ms Phillpott's firearms licence was suspended immediately following the interview on the basis that she was not a 'fit and proper' person to hold a firearms licence. 2. On 25 June 2021 police attended at Marconi Club due to reports of breaches regarding the sale of ammunition and COVID-19 directives. An Infringement Notice for failing to comply with the Public Health Order was issued to Ms Phillpott. 3. In August 2021, approvals and licences associated with the Marconi Club were revoked. Appeals were lodged with regard to all these matters, apart from the decision to revoke Marconi Club's hunting club approval. The internal review in regard to Marconi Club referred to statements made by witnesses in late 2020 that Marconi Club regularly conducted 'corporate shooting' days, that Ms Phillpott destroyed P650 Forms, that the only form of payment accepted was cash, that there was misappropriation of Marconi Club funds, financial misconduct, breaches of firearms legislation and intimidation of members who questioned her practises or actions. 4. The internal review in regard to Ms Phillpott referred to (serious) 'nature' and (high) 'volume' of allegations of 'dishonesty, intimidation and numerous firearms offences', the fact that there have not been any charges in regard to allegations and to previous dishonest conduct with police on 5 June 2021 when two firearms were sieved from Ms Phillpott's car, referring to the conversation with police on 12 May 2021. 5. The Commissioner affirmed the decision to revoke the firearms licence on the basis that based on past conduct there may be propensity towards future offending and Ms Phillpott's lack of contrition or acknowledgement of wrongdoing. 6. The internal review found that the Marconi Club: … breached numerous provisions of firearms legislation including the conditions under which their various licences and authorities were issued… the majority of breaches and allegations relate directly to the actions and failures of Sharon Philpott in her capacity as the club armourer, club secretary and club treasurer. She has clearly demonstrated herself not to be a fit and proper person to hold a club armourer licence, particularly in view of her identified contraventions while holding positions of considerable trust but also given her inability to be honest and forthright in her dealings (sic) police. 1. The internal review overturned the decision to revoke Marconi Club's target shooting approval subject to the provision of further documentation and conditions agreement to special conditions that included the exclusion of Ms Phillpott from holding any positions within the Marconi Club. 2. Ms Phillpott's view is that all of the allegations were untrue and that they were made following a dispute between Marconi Club members, including herself and her ex-husband and two Directors of Marconi Club, Mr Dimeglio and Mr Piazza. Confidential Material 1. [Not for Publication] 2. [Not for Publication] 3. [Not for Publication] Relevant Legislation 1. Section 63 of the Administrative Decisions Review Act 1997 (ADR Act) provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision, having regard to the material before it, and any applicable written or unwritten law. 2. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. 3. The principles and objects of the Firearms Act 1996 (NSW) (the Act) are set out in s 3, relevantly: Principles and objects of this Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, ... (2) The objects of this Act are as follows: ... (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms (e) to ensure that firearms are stored and conveyed in a safe and secure manner 1. Section 11(7) of the Act is in the following terms: (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. 1. Section 24(2)(c) of the Act states that a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence. 2. The Commissioner may also revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence: s 24(2)(d) of the Act and Cl 20 of the Firearms Regulation 2017 (NSW). Evidence and findings of credit 1. Ms Phillpott made two statements. The first statement responded to various COPS Events and attached documents showing scratches to a car, eggs on a car, tyre marks on wet cement and five emails making complaints against members of the Marconi Club. The documents attached supported Ms Phillpott's evidence that she and members of her family had been attacked by other members of the Marconi Club. 2. Ms Phillpott was cross examined for most of a day about numerous matters including, firearms storage facilities at Marconi Club, storage of firearms at the Marconi Club and at home, interactions with police, directing Ms Maria Simon in the sale of ammunition whilst her licence was suspended, failing to keep P650 forms after 'corporate shoots' as she was required to do and failure to comply with Public Orders during Covid 19. 3. Throughout her evidence Ms Phillpott denied any wrongdoing or any suggestion of dishonesty. Her evidence was that Marconi Club made all attempts to comply with Covid public orders, safe storage requirements, she explained that the two firearms in the back of her car were safe, she explained that Ms Simon offered to sell the ammunition and she believed that she was permitted to do so. Her evidence was that P650 forms were not destroyed and were produced to the police. She admitted that things got a bit on top of her with Covid and aggression from some members of the Club. 4. Ms Phillpott provided significant explanation and justification for her past actions as an Armourer , Secretary and Treasurer of the Marconi Club and in regard to firearms stored at her home. She was also argumentative in giving her evidence and did not take any personal responsibility for compliance with Covid public orders. Some of her evidence suggested that some members of the police were biased against her. She denied allegations set out above under the heading Background Facts. 5. The Tribunal has determined to not accept Ms Phillpott's evidence in regard to key allegations made by the Commissioner in light of the Confidential Material before the Tribunal. The Tribunal prefers the evidence of Ms Simon and Mr Emmanuel Fourtounis. Mr Fourtounis was not required for cross examination and his evidence is accepted. 6. I accept Ms Simon's evidence that Ms Phillpott and Mr Phillpott both asked her to sell the ammunition following the suspension of Ms Phillpott as armourer at the Marconi Club. 7. I accept Mr Fourtounis' evidence that he explained to Ms Phillpott on 12 May 2021 that the Club needed to nominate a new armourer or apply for a permit to sell armoury from the Firearms Registry and that because prior to the suspension she was the sole armourer, no person at the Club was authorised to sell ammunition. 8. I also accept Mr Fourtounis' evidence that on 25 June 2021, he said to Ms Phillpott words to the effect that she had not been truthful with police previously when she informed police that two firearms were 'disposed of' while they were in her possession and that Ms Phillpott maintained that the firearms were disposed of and that the registry was simply slow in processing the disposal paperwork. 9. I accept that the statement 'the two firearms were disposed of' reasonably understood meant that Ms Phillpott no longer had the firearms in her possession. It was reasonable for the police form the view that she was not truthful when they found the two firearms in her possession. 10. Ms Phillpott also relied on character evidence from six persons, three of the persons were cross examined. The statements are from persons who know Ms Phillpott as members of the Marconi Club and speak highly of her commitment to the Club and to the sport of shooting. Some of them also attest to the disfunction that had occurred at the Club and support her application. I accept all of that evidence. I do not however accept that Ms Phillpott is an honest person because of the contents of the Confidential Material. 11. I do not consider that as at 2019, Ms Phillpott would have known or should have know that she was infringing safe storage requirements. This is because there was an inspection of Marconi Club in July 2019 by the Firearm Registry which did not identify any safety concerns. 12. Once Ms Phillpott was informed that the safety storage did not meet level 7 standards she made arrangements for the firearms to be stored in other safe storage. 13. The Tribunal accepts that Ms Phillpott as Secretary of the Club did not inform the Firearms Registry within 7 days of a membership cancellation or kept records of shooters participating in shooting or provided evidence of lodgement of an annual membership return. Also, Ms Phillpott was issued with a penalty notice for failing to comply with Covid-19 Safety Plan in August 2020 and a fine for keeping two firearms in the back of her car under blankets in a bag. 14. There is no evidence to suggest that there was any domestic violence on 5 June 2021 apart from police being called to a residence after yelling was heard. Ms Phillpott denied that there was any altercation or violence between her and her partner. There is no evidence that the police spoke to her partner or any person at the premises that evening. Consideration Public Interest 1. The concept of public interest is well known. The interests of the whole community are given priority over private interests of the person wishing to hold a firearms licence. The notion of public interest includes concerns about 'public protection, public safety and public confidence in the administration of the licencing system.' Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33]. 2. Public safety is a primary consideration and holding a firearms licence is a privilege; s(3)(1)(a) of the Act. Holding a firearms licence is conditional on the need to ensure public safety. Misuse of firearms can result in catastrophic consequences. Davos v Commissioner of Police [2013] NSWADT 7 at [117]; Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28. 3. In Martin v Commissioner of Police, NSW Police Service [2017] NSWADT 97 at [66] the Tribunal observed: The question of risk is therefore not viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety. 1. I have considered Ms Phillpott's conduct as a whole including her attitudes and character within the surrounding circumstances. I am not satisfied that there is no real and appreciable risk to public safety, including strict compliance with the firearms licencing scheme if Ms Phillpott was to be issued with a firearms licence. I find that based on the Confidential Material together with Ms Phillpott's lack of insight into why it was misleading to state to the police that she had 'disposed of' two firearms while maintaining them in her possession troublesome. The correct and preferable decision is that it is in the public interest for the Tribunal to affirm the decision of the Commissioner to refuse Ms Phillpott's firearms licence. Fit and Proper Person 1. The fit and proper person test applies in a wide number of statutes and its meaning is well settled. As Toohey and Gaudron JJ explained in the context of a commercial broadcasting licence in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 [36]: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. The content of fitness and propriety was considered to have three components 'honesty, knowledge and ability'. Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 156-7 [9]. 2. An assessment of whether Ms Phillpott is a fit and proper person must be considered in a practical way taking into account the scheme for the licensing of firearms. The Tribunal must consider not only the past conduct but also the person's conduct following any wrongdoing, the person's explanation for the past conduct as well as all other relevant surrounding circumstances. In re Davis [1947] HCA 53; (1947) 75 CLR 409 at 416; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 388. 3. Ms Phillpott needed to show that she possessed sufficient moral integrity and rectitude to hold a firearm licence. Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 per Walters J. 4. It is the notion of honesty which is of concern to the Commissioner. Whether Ms Phillpott is a 'fit and proper person' is a question must be answered in light of the objects of the Act, which recognise that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. This is a high bar to meet but is mandated because firearms pose a significant threat to the safety and welfare of the public. 5. I have considered the submissions and evidence of the parties and I am not satisfied that Ms Phillpott has demonstrated that she now possesses sufficient mortal integrity and rectitude. I do not consider that at the present time she is a fit and proper person within the meaning of the Act. 6. Ms Phillpott's responses to the questions did not demonstrate any insight as to why her firearms licence was revoked. She made many excuses, she sought to pass the blame on to other committee members and participants of the Club, but she made no concessions as to any specific personal wrongdoing. 7. As a person who was an armourer or as a 'dealer' as defined in s3 of the Act, she should have understood that she was being held to a higher standard that a person who was not an armourer. 8. In Commissioner of Police v Joseph [2016] NSWCATAP 124, the Appeal Panel in dealing with an application for a firearms dealer licence, which is not the case here, stated at [31] that armourers/dealers must be able to be trusted as persons of honesty and integrity and ought to be: … candid and open in their dealings with the police, and conscientious in adhering to the strict requirements of the legislation in a wide variety of administrative matters, such as security of premises, safekeeping of weapons, booking and transparency of transaction. 1. At the time of the alleged wrongdoing, Ms Phillpott did hold the important role as armourer and was not candid and open in her dealings with police, failed to adhere to comply with the requirements of the legislation in numerous ways and was not transparent about her transactions. 2. Ms Phillpott submitted that she has no desire to be an armourer in the future and simply seeks to be granted a firearms licence to engage in shooting which she loves and does with her family and friends, however her past conduct in the relevant surrounding circumstances is a relevant matter to consider when determining whether there is a public interest in her holding a firearms licence and whether she is a fit and proper person to hold a firearms licence. Confidential Information 1. I have considered the confidential information and submissions. The confidential information significantly assists the Commissioner's submission that the correct and preferable decision is to affirm the decision of the Commissioner to refuse to issue Ms Phillpott with a firearms licence. Conclusion 1. The Tribunal orders: 1. The decision under review is affirmed. ********** 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 February 2024