Commissioner of Police v Joseph [2015] NSWCATAP 9

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner of Police v Joseph [2015] NSWCATAP 9 Hearing dates: 30 October 2014, 12 December 2014 Decision date: 10 February 2015 Jurisdiction: Appeal Panel Before: Acting Judge K P O'Connor, AM, Deputy President, Appeals; P Molony, Senior Member Decision: 1.Leave granted to extend the appeal to the merits. 2.Directions to be given by the Presiding Member for the further conduct of the appeal (date and time of the directions hearing to be fixed by the Registrar in consultation with the parties). Catchwords: FIREARMS LICENSING – Application for firearms dealers licence – refused by Commissioner – Commissioner's decision set aside by Tribunal on review – Appeal by Commissioner – Whether Tribunal erred in its approach to consideration of the Commissioner's application to have considered material regarded by the Commissioner as relevant – Held that Tribunal erred - Whether refusal on the ground of fitness and refusal on the ground of public interest involved the determination of jurisdictional facts – Held not – Whether the Tribunal properly construed the scope of the public interest discretion – held Tribunal erred – Leave granted to extend appeal to merits. Administrative Decisions Review Act 1997, s 63; Firearms Act 1996, s 11(3), s 11(7), s 75. Legislation Cited: Administrative Appeals Tribunal Act 1975 (Commonwealth) Administrative Decisions Tribunal Act 1997 Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Ex p Mullen; Re Hood (1935) 35 SR (NSW) 289 Gedeon v Commissioner of the New South Wales Crimes Commission [2008] HCA 43; (2009) CLR 120 Harbour Radio Pty Ltd v Australian Communications and Media Authority [2012] FCA 614 Healthcare Complaints Commission v Wingate [2007] NSWCA 326; (2007) 70 NSWLR 323 Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 McDonald v Director-General of Social Security (1984) 1 FCR 354 Marku v Republic of Albania [2012] FCA 804 Marku v Republic of Albania [2013] FCAFC 51 Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 Re LLSY and Minister for Immigration and Citizenship [2011] AATA 334; 121 ALD 630 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 Timbarra Protection Coalition Inc v Ross Mining NL and Ors [1999] NSWCA Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Texts Cited: Aronson, Dyer and Grove, Judicial Review of Administrative Action (4th ed. 2008) Pearce, Administrative Appeals Tribunal (3rd ed, 2013) Spigelman, 'The Centrality of Jurisdictional Error', (2010) Category: Principal judgment Parties: Commissioner of Police (Appellant) Marsleno Joseph (Respondent) Representation: Counsel: C Mantziaris (Appellant); K Dailly (Respondent) Solicitors: Mainstone Lawyers (Respondent) File Number(s): 14/46368 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2014] NSWCATAD 46 Date of Decision: 14 April 2014 Before: Naida Isenberg, Senior Member