Civil and Administrative Tribunal New South Wales Medium Neutral Citation: GGW v Commissioner of Police, NSW Police Force [2024] NSWCATAP 88 Hearing dates: 6 October 2023, 18 March 2024 Date of orders: 20 May 2024 Decision date: 20 May 2024 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President Dr J Lucy, Senior Member Decision: (1) The appeal is allowed. (2) The respondent's decision to refuse the appellant a firearms licence is set aside and the respondent is to grant the appellant the licence for which he applied within 14 days of the publication of this decision. (3) The non-publication order made on 18 March 2024 is amended or varied by deleting from the order the words "Pending further order of the Tribunal." (4) The appellant's application for costs is dismissed. Catchwords: APPEALS – Firearms – Decision to refuse to grant appellant a firearms licence - Finding that issuing a licence to the appellant would entail a real and appreciable risk to public safety – Whether finding was supported by probative evidence – Whether Tribunal asked itself the wrong question Legislation Cited: Firearms Act 1996 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW) Cases Cited: Cominos v Di Rico [2016] NSWCATAP 5 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 Category: Principal judgment Parties: GGW (Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel: R Coffey (Respondent) Solicitors: Appellant (Self-Represented) Lindsay Taylor Lawyers (Respondent) File Number(s): 2023/00224814 Publication restriction: The publication of the name of the appellant [GGW] and the appellant's brother [GHC] in these proceedings and in Tribunal proceedings 2023/00004292, is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2023] NSWCATAD 155 Date of Decision: 19 June 2023 Before: Emeritus Prof G D Walker, Senior Member File Number(s): 2023/00004292 REASONS FOR DECISION 1. The appellant brought proceedings in the Tribunal seeking review of the decision of the Commissioner of Police ("the Commissioner") to refuse the appellant's application for a firearms licence. 2. The Tribunal affirmed the Commissioner's decision, mainly on the basis of its finding that issuing a firearms licence to the appellant would create a risk to public safety. That risk was said to arise because the appellant's estranged brother, who is a member of an outlaw motorcycle gang, or his associates, might intimidate the appellant into supplying them with firearms. 3. We have found that there is no probative evidence supporting the Tribunal's conclusion that the issue of a firearms licence to the appellant would give rise to a real and appreciable risk to public safety. We have accordingly allowed the appeal and have ordered the Commissioner to grant the appellant's application for a firearms licence. Background 1. The appellant is a full-time carer for his elderly mother who lives nearby to him. 2. The appellant was a member of a motorcycle club until the early 1990s. At that point, he was expelled from the club as a suspected police informant. The motorcycle club was later declared a criminal organisation (colloquially known as an outlaw motorcycle gang or OMCG). 3. The appellant's brother ("the brother" or "GHC") was also a member of the motorcycle club and remained a member after it was declared to be a criminal organisation. The brother lives 550 kilometres away from the appellant. 4. There is animosity between the appellant and the brother and the brother is not welcome in the appellant's house. The brother visits their mother ("the mother") about four times a year. The appellant's evidence was that he endeavoured to avoid contact with the brother on these occasions by deputizing him as their mother's carer for the duration of the brother's visit. He said that, if they did chance to meet, no pleasantries were exchanged. 5. In 2020, the appellant applied to the Commissioner for a category AB firearms licence. 6. In 2021, the Commissioner refused the application on the ground of the applicant's domestic circumstances, being that a close family member of the appellant was affiliated with an outlaw motorcycle gang, thereby creating a risk to public safety. The Commissioner accepted, however, that the appellant had a genuine reason for using and possessing firearms, being sport/target shooting (Firearms Act 1996 (NSW), s 12(4)(b)). 7. The Commissioner's decision to refuse the licence application was affirmed on internal review. 8. The appellant then applied to the Tribunal for a review of the Commissioner's decision. 9. The Tribunal held a hearing. Part of the hearing was conducted confidentially, in the absence of the appellant, and the Tribunal received some confidential evidence to which the appellant was not provided with access. 10. At the hearing, the Commissioner submitted that the appellant was not a fit and proper person to hold a firearm. Section 11(3)(a) of the Firearms Act provides that a licence must not be issued unless "the Commissioner is satisfied that the appellant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace". 11. The Commissioner submitted that the appellant may not personally exercise continuous and responsible control over firearms because of his domestic circumstances being, in particular, that his brother is a member of an OMCG. Section 11(4) of the Firearms Act provides: 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, … 1. The Commissioner also submitted that issuing a licence to the appellant would be contrary to the public interest. Section 11(7) of the Firearms Act provides that, despite any other provision of s 11, "the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest." 2. The Commissioner submitted that, in circumstances where the brother visits the mother about four times a year, and the appellant lives close to the mother, there is a real and appreciable risk that the brother or his associates in the OMCG could have access to any firearms stored on the appellant's premises. 3. The evidence was that the appellant had not been a member of the relevant motorcycle club for 22 years and, at the time, it was not an OMCG. The Tribunal found that in the past 22 years the appellant had "severed his criminal associations and transformed himself into a productive and law-abiding citizen who is well regarded in the community" (at [93]). 4. The Tribunal found that the appellant was a fit and proper person to have access to firearms without risk to public safety or the peace (at [94]). 5. The appellant gave evidence that the brother had a serious motorcycle accident about twenty years ago and the brother now has deformities to his right forearm, wrist and hand. The appellant submitted that, as a result, the brother was unlikely to be able to ride a motorcycle and was physically incapable of holding and firing a gun. The appellant also said that the brother may be developing Parkinsons disease. 6. The Commissioner's evidence was that there were six encounters between the brother and the police, after the brother had sustained injuries from the accident. On one of these occasions, the brother was participating in the National Run of the OMCG in question. The Tribunal found that it was implicit that he may have been riding a motorcycle at this time. 7. The Tribunal noted (at [99]) that: "… in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that 'In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration'." 1. The Tribunal then reasoned as follows: "105 Even if [GHC] were unable to [ride a motorcycle], or to fire a gun, his club associates would not be so hampered and could bring pressure to bear on the applicant to supply them with firearms, as has been known to happen in other cases. That is not merely a theoretical or fanciful concern as understood in Webb. The police report following a sighting of GHC on 6 September 2013 states that "Additionally, Police were told that GHC had used his membership of the Nomads to threaten and intimidate his neighbours, telling them that he would 'sort them out'" (information report I52522376). GHC's associates might not feel diffident about threatening and intimidating an expelled member whom they regarded as a police informant for the purpose of gaining access to his firearms. 106 The applicant testified that he did not know whether GHC is still riding or not. His evidence about his brother's orthopaedic problems and possibly incipient Parkinson's is double hearsay and appears to be at least partly incorrect, as police reports indicate that GHC is well able to handle a heavy motorcycle, probably over long periods, and actually does so. That would suggest that there is no reason why he would be unable to handle and use firearms. There is also no direct evidence of GHC's current place of residence. The applicant has undertaken the prescribed firearms course, including the safe storage precautions, and while his willingness to comply with those practices may be accepted, he does not specifically indicate what precautions he would take were he to obtain a licence. In the circumstances that could be material. 107 As matters stand, there is insufficient up to date evidence to allay concerns that GHC's continuing Nomads full membership and observed willingness to resort to intimidation, coupled with the applicant's earlier OMCG membership, could make issuing a licence to the applicant contrary to the public interest (s 11(7)) or that GHC's OMCG involvement might impair the applicant's ability personally to exercise continuous and responsible control over firearms (s 11(4)(a)). In the absence of further evidence it is not possible to conclude that issuing an AB licence to the applicant would not entail any real or appreciable risk to public safety, as understood in Webb. 108 The evidence thus leads to the conclusion that the applicant is a fit and proper person to hold a firearms licence, but that it would not at present be in the public interest for him to do so, and I so find. The decision under review must be affirmed." Appeal 1. The appellant lodged a notice of appeal in July 2023. In his Notice of Appeal, he identified the grounds of appeal as being: "A substantial miscarriage of justice with regard to public interest, and domestic circumstances pertaining to and consistent with discrimination." 2. Under the part of the Notice of Appeal form headed "Decision not fair and equitable," the appellant included a long account of why he said the decision was not fair and equitable in small type. One of the points he made was that any risk posed by the brother "would be more of a theoretical risk as in Webb". The appellant referred to the distance between their residences and evidence of the gun safe at his home. He also pointed out that the brother would have no way of knowing that he had been issued with a gun licence. He said that not even his mother knew about the firearms licence application. 3. A hearing of the appeal was held on 6 October 2023. 4. At that hearing, we raised with the parties our concern about whether there was enough evidence before the Tribunal for it to draw an inference that there was a real and appreciable risk to public safety, as opposed to a fanciful risk. We indicated that, whilst the appellant had raised the question of risk in his Notice of Appeal, it was not clearly formulated as an appeal ground. 5. The appellant indicated that he would like an opportunity to amend his Notice of Appeal. The Commissioner did not oppose that course. Accordingly, we adjourned the hearing and made orders giving the appellant an opportunity to file and serve an amended notice of appeal and submissions in support, the Commissioner to file and serve amended reply and submissions in response and for the appellant to file and serve any submissions in reply. 6. The appellant's Amended Notice of Appeal identified the amended Grounds of Appeal as being: "Domestic Circumstances pertaining to and consistent with discrimination Questions of Law – Firearms Act 1996, Subsection 11(4)(a) – Domestic Circumstances Substantial miscarriage of justice with regard to Public Interest Questions of Law – Firearms Act 1996, Subsection 11(7) – Public Interest There are Questions of Law concerning Judicial Error, Legal Unreasonableness and Speculative Prejudice pertaining to Public Interest and Domestic Circumstances consistent with Discrimination." 1. The appellant again provided a description of what he said were errors in other parts of the Notice of Appeal form, including under the heading "Decision not fair and equitable." Under the heading "What evidence should the Tribunal have given more weight to? Why?", the appellant wrote: "The Tribunal has failed to give any weight to the fact that the Appellant was labelled a 'police informant' by the Nomads which forced his expulsion. That label, whilst unfounded, has had the effect of conscious avoidance of the Appellant by OMCG members for fear of similarly being 'branded' (guilty by association). Any such risk of intimidation to the Appellant is therefore considered minimal at its highest degree, and little different to the level of risk pertaining to the public at large. … such a minimal risk should have been disregarded (Webb v Commissioner of Police). The compounding speculation and any absence of any factual basis for much of the postulated scenario strongly suggests that the risk of such an occurrence is remote at best. … The underlying inference that this 'evidence' had significant probative value is not demonstrated in the Tribunal's Reasons for Decision by way of any 'real review' of the Commissioner's assertions… " Appeal principles 1. An appeal may be made from the Tribunal's decision "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds" (Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b)). 2. The appellant attempted to identify questions of law when formulating his amended appeal grounds but he did not do so with precision. As indicated above, the appellant indicated in his original and amended appeal forms grounds for considering that the decision was not fair and equitable and why it was against the weight of evidence, under those headings on the form. Those are matters which may have some relevance to an application for leave to appeal on a ground which does not raise a question of law. 3. As indicated on the Notice of Appeal form, the "fair and equitable" and "against the weight of evidence" parts of the form are relevant to appeals from a decision of the Tribunal in its Consumer and Commercial Division because of the effect of clause 12 of Sch 4 to the NCAT Act. That clause provides that an Appeal Panel may grant leave under s 80(2)(b) of the Act (for an appeal which is not on a question of law) if it is satisfied the appellant may have suffered a substantial miscarriage of justice because the Tribunal's decision was not fair and equitable or was against the weight of evidence or significant new evidence has arisen since the Tribunal hearing. 4. This is an appeal from the Administrative and Equal Opportunity Division, such that cl 12 of Sch 4 to the NCAT Act does not apply. Nevertheless, we have had regard to what the appellant has said about the decision not being fair and equitable and being against the weight of evidence when construing his appeal grounds and considering whether he has identified a question of law. 5. It is often difficult for a self-represented appellant to identify a question of law with precision. This was recognised by the Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12], which commented: "In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent." 1. In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: "It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. However, this must be balanced against the obligation to act fairly and impartially." 1. We have taken that approach in this case. Second hearing 1. The appellant provided the Tribunal with additional submissions after the first hearing, including reply submissions. He also provided a written document entitled "Appellant's Appeal Presentation." These submissions raised a number of matters. 2. One of the arguments the appellant made in his submissions was that the evidence before the Tribunal was that he and the brother had been estranged for 20 years; did not interact; that the brother was not welcome at his house; and that they did not exchange pleasantries when they occasionally met. He submitted that "[d]espite this weight of evidence against any close association, the Tribunal simply adopted the Commissioner's Internal Review Adjudicator's 'conceived' idea of a close association ('short distance') sufficient to constitute a 'domestic circumstance' nexus." 3. The appellant also submitted that the Tribunal: "… failed to properly engage with the evidence in any real intellectual sense to make appropriate findings of fact. He adopted a formulaic approach of simply repeating the various assertions and information listed in [the evidence given for the Commissioner]. He failed to analyse the evidentiary foundation of that information to establish its probative value. This highlights the inadequate assessment of the 'reasonable cause' for the hypothetical public safety risk attributed to [the brother]." 1. A further hearing was held on 18 March 2024. At that hearing, the presiding member indicated to the parties that the Appeal Panel held concerns about the following matters, each of which raises a question of law: 1. Whether the Tribunal's conclusion that it was not in public interest for the appellant to hold a firearms licence was based on probative evidence; and 2. Whether the Tribunal's remark at [106] of its reasons – that the evidence "does not specifically indicate what precautions [the appellant] would take were he to obtain a licence" - erroneously imposed an onus on the appellant. 1. The Commissioner was represented by counsel at the hearing and provided with an opportunity to make submissions on these issues. The Commissioner also filed written submissions addressing the material relied upon by the appellant. Application to adduce further evidence 1. The appellant applied for leave to rely on further evidence at the appeal, being evidence which was not before the Tribunal. 2. The appellant did not persuade us that the evidence on which he now seeks to rely could not have been adduced at the Tribunal hearing. We reject his application to adduce further evidence on appeal. No probative evidence 1. The Tribunal's finding that it was not in the public interest for the appellant to hold a firearms licence appears to be based on its finding that there was insufficient evidence "to allay concerns that GHC's continuing Nomads full membership and observed willingness to resort to intimidation, coupled with the applicant's earlier OMCG membership, could make issuing a licence to the applicant contrary to the public interest (s 11(7)) or that GHC's OMCG involvement might impair the applicant's ability personally to exercise continuous and responsible control over firearms." 2. The relevant question in relation to the public interest, as the Tribunal recognised, is whether issuing a licence to the appellant would entail a real and appreciable risk to public safety. The evidence did not support a conclusion that such a risk existed. 3. The Tribunal's reasoning at [105] that the brother's club associates "could bring pressure to bear on the applicant to supply them with firearms, as has been known to happen in other cases" was speculative. The Tribunal did not explain how the brother or his associates would know that the appellant had been granted a firearms licence or how or why they would put pressure on him to supply them with firearms. Contrary to the Tribunal's finding (at [105]), we consider that to be a minimal, fanciful or theoretical risk (Webb at [32]). 4. The circumstance on which the Tribunal relied, that a police report stated that the brother said to neighbours in 2013 that he would "sort them out," does not provide any probative evidence of a risk that the brother would pressure the appellant to provide him with firearms in 2023 or afterwards, if the appellant were to be granted a firearms licence. 5. The Tribunal acknowledged that the appellant had undertaken the prescribed firearms course, including safe storage precautions, and found that he was willing to comply with those practices. The circumstance that the appellant did "not specifically indicate what precautions he would take were he to obtain a licence" (at [106]) is not probative of a real and appreciable risk to public safety. 6. The concerns expressed by the Tribunal (at [107]) about the brother's continuing Nomads full membership and observed willingness to resort to intimidation do not provide a sound evidentiary basis for a finding of real and substantial risk. The "observed willingness to resort to intimidation" refers to a police report from 2013 which stated that: "Police were told that GHC had used his membership of the Nomads to threaten and intimidate his neighbours, telling them that he would 'sort them out'." That is second hand hearsay and in any event does not establish any likelihood that the brother would find out that the appellant had been granted a firearms licence or that, if he did, he would try to intimidate his brother to supply him with firearms. 7. The concerns the Tribunal expressed about the appellant's "earlier OMCG membership" are also an insufficient basis for the finding of risk in circumstances where the Tribunal found that the appellant was now a productive and law-abiding citizen. 8. For these reasons, there was no probative evidence before the Tribunal to support the finding that issuing a licence to the appellant would entail a real and appreciable risk to public safety or, on that basis, that it is contrary to the public interest to issue him with a licence. To the extent that the Tribunal stated that "it is not possible to conclude that issuing an AB licence to the applicant would not entail any real or appreciable risk to public safety" (emphasis added), it appears to have impermissibly imposed an onus on the appellant, and asked itself the wrong question. 9. In either event, it has made an error of law. Appropriate orders 1. In light of our finding that the Tribunal made an error of law, we have decided to allow the appeal (NCAT Act, s 81(1)(a)). 2. It would not facilitate the just, quick and cheap resolution of the real issues in the proceedings to order that the case be reconsidered by the Tribunal (NCAT Act, s 81(1)(e)), in circumstances where the Tribunal has made factual findings which are not challenged by the Commissioner. Instead, we have decided to exercise the Tribunal's function, under s 63 of the Administrative Decisions Review Act 1997 (NSW), of determining whether to set aside or affirm the decision under review (NCAT Act, s 81(2)). 3. We do not consider that the issue of a licence to the appellant would be contrary to the public interest (Firearms Act, s 11(7)). As discussed above, the evidence does not establish that this is so. 4. The Tribunal has found, and we agree, that the appellant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace (Firearms Act, s 11(3)(a)). Further, there is no reasonable cause to believe that the appellant may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances (Firearms Act, s 11(4)(a)). 5. We have accordingly decided to set aside the Commissioner's decision to refuse the appellant a firearms licence and to substitute a decision granting him that licence (NCAT Act, s 81(1)(d) and (2); Administrative Decisions Review Act, s 63(3)(c)). Non-publication order 1. At the hearing on 18 March 2024, the appellant sought that various paragraphs in the decision under appeal be redacted. These included references to suspicions held by an OMCG that he was a police informant. 2. The Commissioner did not agree to the redaction of all the paragraphs proposed by the appellant, but suggested an order anonymising the appellant's name in the original Tribunal proceedings and the appeal proceedings would appropriately serve the public interest in protecting the identity of police informants or suspected police informants (even if the appellant is not, in fact, an informant, a matter about which we make no finding). 3. We were satisfied, at the hearing, that it was desirable to make an order prohibiting the disclosure of the name of the appellant, by way of publication, because his safety may be compromised by being named as a suspected police informant (see NCAT Act, s 64(1)(a)). At the hearing, we made the following interlocutory order: "Pending further order of the Tribunal pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication of the name of the appellant and the appellant's brother in these proceedings and in Tribunal proceedings 2023/00004292, is prohibited." 1. We are satisfied that it remains desirable to make an order in similar terms, for the same reasons, and that the order should now be made as a final order. Accordingly, we have decided to amend the interlocutory order set out above by deleting the words "Pending further order of the Tribunal." Costs application 1. In the "Appellant's Appeal Presentation," the appellant indicated that he sought an award of costs and submitted that a variety of circumstances represented "highly exceptional circumstances." He claimed that his costs of obtaining paralegal assistance were $8,387.50. 2. The Commissioner opposed the making of a costs order. 3. The primary rule is that each party to proceedings in the Tribunal is to pay the party's own costs (NCAT Act, s 60(1)). The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs (NCAT Act, s 60(2)). The Tribunal is permitted to have regard to certain matters set out in s 60(3) of the NCAT Act in determining whether there are special circumstances warranting an award of costs. 4. As counsel for the Commissioner pointed out, many of the circumstances on which the appellant relied as constituting "special circumstances" related to conduct of, or alleged errors made by, the Tribunal. Any errors made by the Tribunal do not justify an order that the respondent pay the appellant's costs. 5. The appellant claimed, in support of his application for a costs order, that the respondent "failed to engage in any substantive manner with any of the questions of law raised in the Appeal" and instead repeatedly asserted that the findings made were open to the Tribunal. He also referred to the "conspicuous silence" in the respondent's submissions regarding "the foundational evidence" for the Tribunal's "fabricated propositions" that the brother "had a history or willingness of threatening and intimidatory behaviour". The appellant relied, in addition, on the respondent's "unjustified disregard for the guiding principles by opposing the matter being decided 'on the papers.'" 6. The appellant also suggested that the Commissioner had breached the model litigant policy. 7. Mr Coffey, for the Commissioner, said that there was no basis to draw an inference that the Commissioner has breached the model litigant policy. We accept that submission. 8. We are not satisfied that any of the matters raised by the appellant constitutes special circumstances warranting an award of costs. The Commissioner was entitled to defend the appeal and did so reasonably. Any failure to engage with the questions of law raised by the appellant may be explained by the circumstance that the appellant's formulation of questions of law lacked precision and clarity. The Commissioner engaged with the questions of law which were in issue at the hearing of the appeal. 9. For these reasons, we dismiss the appellant's application for costs. Orders 1. We make the following orders: 1. The appeal is allowed. 2. The respondent's decision to refuse the appellant a firearms licence is set aside and the respondent is to grant the appellant the licence for which he applied within 14 days of the publication of this decision. 3. The non-publication order made on 18 March 2024 is amended or varied by deleting from the order the words "Pending further order of the Tribunal." 4. The appellant's application for costs is 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: 20 May 2024