Mercer v Commissioner of Police, NSW Police [2006] NSWADT 277

CITATION: Mercer v Commissioner of Police, NSW Police [2006] NSWADT 277

DIVISION: General Division

APPLICANT PARTIES: Adam Mercer RESPONDENT Commissioner of Police, NSW Police

FILE NUMBER: 053384

HEARING DATES: 17/03/06, 29/05/06

SUBMISSIONS CLOSED: 07/24/2006

DATE OF DECISION: 09/22/2006

BEFORE: Leal S - Judicial Member

CATCHWORDS: Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Firearms Act 1996

CASES CITED: Port of Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 CLR 589 Re Greenham and Minister for the Capital Territory (1979) 2 ALD 137

APPLICANT G Sundstrom, barrister REPRESENTATION: RESPONDENT W Pisani, agent

ORDERS: 1. That the respondent should not be estopped from relying on confidential evidence put before the Tribunal on 29 May 2006; 2. That the respondent file any further confidential statements by 16 October 2006; 3. That a hearing date to consider confidential material held by the respondent to be fixed by the Registry in consultation with the respondent.

REASONS FOR DECISION Introduction 1 Mr Mercer's firearms licence was revoked by the Commissioner of Police on 11 September 2003 and confirmed on internal review on 15 October 2003. Mr Mercer sought a review to this Tribunal and on 4 February 2005, the Commissioner's decision to revoke Mr Mercer's firearms was set aside. 2 The Commissioner's appeal to the Appeal Panel of this Tribunal was upheld on 4 November 2005. The matter was then part-heard before me on 17 March 2006 and 29 May 2006. 3 On 29 May 2006, the Commissioner sought to tender confidential material to the Tribunal, in the absence of Mr Mercer and his representative, in accordance with s75 of the Administrative Decisions Tribunal Act 1997. 4 Mr Mercer submitted that the Commissioner should be estopped from relying on this material on the basis that it should have been tendered to the Tribunal in the earlier proceedings. 5 For the following reasons, I do not agree with Mr Mercer's submissions. Confidential Material in question 6 Subject to suppression order 7 Subject to suppression order 8 Subject to suppression order 9 Subject to suppression order 10 Subject to suppression order 11 Generally, Tribunal hearings are held in public. However, under section 75 of the Administrative Decisions Tribunal Act 1997, the Tribunal has the power to order that a hearing be conducted either wholly or partly in private and to make an order prohibiting or restricting the disclosure to some or all parties of evidence given before the Tribunal. The Tribunal made this order to allow the Commissioner's representative, Mr Pisani, to address the Tribunal in relation to the confidential evidence he wished to tender. 12 The Tribunal deferred making a decision as to whether or not the material should be put into evidence until the receipt of submissions by Mr Mercer's representative, Mr Sundstrom, as to whether the Tribunal should be estopped from considering the material. Mr Sundstrom referred to the case of Port of Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 CLR 589 (1 September 1981). 13 The Tribunal accepts the difficulty facing Mr Sundstrom in mounting an argument in relation to material to which he and Mr Mercer have not been given access. This difficulty is highlighted in Mr Sundstrom's submissions where he states that: The submission regarding the proposed estoppel is predicated on the anticipation that the 'confidential evidence', whatever its nature or source, has been within the knowledge or awareness of the Commissioner of Police for a period of time at least prior to the first day of the present re-determination hearing, being 17 March 2006. The submission is also predicated on the supposition that, if [the above] is satisfied, then the 'confidential evidence' could have, and ought reasonably have earlier been placed before the Tribunal. The variety of Estoppel for which the applicant agitates is that known as Anshun estoppel – the principles which arise in the High Court decision in Port Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589…In précis, the Anshun principle involves an estoppel in relation to aspects of the earlier proceedings which could and should have been raised therein but were not 14 Given, however, that the confidential documents in question deal with allegations, the Tribunal is not satisfied that the so-called Anshun estoppel principle is applicable in this case. 15 In undertaking a review of the merits of the original decision, the role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then affirms the original decision, varies it, or sets it aside and substitutes another decision. In accordance with the principles set out in Re Greenham and Minister for the Capital Territory (1979) 2 ALD 137 the Tribunal has power to review decisions, and not the reasons given for decisions, and in doing so is not restricted to the material before the decision-maker. Accordingly, the Tribunal is satisfied that it is able to consider the confidential material before it in its decision should it be tendered in evidence upon the hearing of further oral evidence. Conclusion 16 For the above reasons, the Tribunal finds that it is not estopped from considering the confidential material before it and will therefore proceed to hearing oral evidence to determine whether the material should be placed into evidence or not. ORDERS 1. The Tribunal is not estopped from considering the confidential material before it. 2. That the respondent file any further confidential statements by 16 October 2006. 3. That a hearing date to consider confidential material held by the respondent to be fixed by the Registry in consultation with the respondent.