Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wilson v Commissioner of Police, New South Wales Police Force [2015] NSWCATAP 248 Hearing dates: 19 October 2015 Date of orders: 23 November 2015 Decision date: 23 November 2015 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President K Rosser, Senior Member Decision: 1. The appeal is allowed. 2. The Tribunal's decision made on 22 June 2015 to affirm the decision of the Commissioner of Police to refuse Mr Wilson's application for a firearms licence is set aside. 3. In substitution for the Tribunal's decision, the following decision is made: Mr Wilson's application for a Category ABH firearms licence is granted. Catchwords: ADMINISTRATIVE LAW – refusal of application for licence under Firearms Act 1996 (NSW) - whether any evidence to support a finding of fact – whether inference can be drawn that it is not in the public interest for applicant to be given a firearms licence on the basis of remaining findings – notice of contention – whether appropriate to raise by contention matters already ventilated at first instance – Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b) Crimes (Sentencing Procedures) Act 1999 (NSW), s 10 Firearms Act 1996 (NSW), s 11 Weapons Prohibition Act 1998 (NSW), s 7(1) Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 Carr v Baker (1936) 36 SR(NSW) 301 Hannover Life Re of Australasia Ltd v Dargan [2012] NSWCA 185 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Re Holbrook and Australian Postal Commission (1983) 5 ALN N 46 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 Warren v Coombs (1979) 142 CLR 331 Wiltshire v Commissioner of Police, New South Wales Police Force [2005] NSWADT 75, Category: Principal judgment Parties: Glenn Wilson (Appellant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Solicitors: Sparke Helmore (Respondent) File Number(s): AP 15/44480 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2015] NSWCATAD 127 Date of Decision: 22 June 2015 Before: G Walker, Senior Member File Number(s): 1410424 reasons for decision Introduction 1. The Commissioner of Police refused Mr Wilson's application for a category ABH firearms licence and the Tribunal affirmed that decision. Mr Wilson has appealed from the Tribunal's decision to the Appeal Panel. 2. Mr Wilson lives in Parkes, New South Wales. When he had a firearms licence he purchased and used two Glock 9 mm semi-automatic (self-loading) pistols for target and sporting purposes (the pistols). On 19 September 2012, police executed a search warrant at his home and seized the magazines which were stored there. 3. On 18 December 2012 Mr Wilson was charged with possessing or using a prohibited weapon. The prohibited weapons were six Glock magazines which exceeded the permitted capacity of 10 rounds (the magazines) without a permit under s 7(1) of the Weapons Prohibition Act 1998 (NSW). That provision states that: A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit. Maximum penalty: imprisonment for 14 years 1. At the Local Court hearing on 10 May 2013, Mr Wilson pleaded guilty. Pursuant to s 10(1)(a) of the Crimes (Sentencing Procedures) Act 1999 (NSW) he was found guilty but the charge was dismissed with no conviction being recorded. The Commissioner of Police had suspended and then revoked his category ABH firearms licence. In the meantime Mr Wilson's licence had expired. Rather than challenging the decisions to suspend and then revoke his licence, Mr Wilson lodged an application for a new category ABH licence. 2. The events giving rise to these proceedings were the finding of guilt by the Local Court and the fact that Mr Wilson had ordered a large number of Glock spare parts and components from a Queensland gun dealer at a total cost of $25,587.28. We will refer to these two matters as the "prohibited weapons matter" and the "spare parts order". 3. The Commissioner of Police submitted to the Tribunal that Mr Wilson was not a fit and proper person to hold a firearms licence and that it was not in the public interest for him to do so: Firearms Act 1996 (NSW), s 11(3)(a) and s 11(7). The Tribunal rejected that submission in relation to the spare parts order. Mr Wilson does not appeal against that conclusion. 4. In relation to the prohibited weapons matter, the Tribunal concluded that while that matter did not affect Mr Wilson's fitness to hold a licence, it did mean that it was not in the public interest for him to do so. Mr Wilson has appealed against that conclusion. Fit and proper person and public interest test 1. Section 11(1) of the Firearms Act gives the Commissioner a discretion to issue or not to issue a firearms licence: The Commissioner may issue a licence in respect of an application, or refuse any such application. 1. The remainder of s 11 sets out restrictions on the issue of any such licence. The Commissioner refused Mr Wilson's application on two grounds: that he was not a fit and proper person and that it was not in the public interest for him to have a licence. The 'fit and proper person' requirement is set out at s 11(3)(a): A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, 1. The "public interest test" is set out in s 11(7) of the Firearms Act: 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. Tribunal's reasoning and decision on prohibited weapons matter 1. As there is some disagreement between the parties as to the basis on which the Tribunal found that it was not in the public interest for Mr Wilson to have a firearms licence, we have set out paragraphs [89] – [94] of the Tribunal's reasons for decision in full. By way of background to [89], Mr Wilson said he had purchased the magazines openly at the Penrith gun show as collectibles or curios on 19 May 2012 and was not aware that they were prohibited weapons. He drove home to Parkes and stored the magazines in his safe. The Commissioner submitted that Mr Wilson stored the magazines in Parkes, rather than at his father's house in Forbes where his pistols were stored, in order to avoid detection. Mr Wilson denied any intention to conceal the magazines from police. 89. In his evidence the applicant did not say that between 19 May (when Mr Wilson purchased the magazines) and 19 September 2012 (when police executed the search warrant) he had not travelled to his Forbes address where his father lived. He was licence holder and secretary of the Forbes Military Rifle Club, and while he was also a member of the Parkes Pistol club, the fact that his safe storage was located at Forbes meant that if he was planning to do any shooting at the club, he would have to go to Forbes to collect one or more pistols. He did say, however, that he did not do much shooting in 2011 – 2012. (Words in brackets added.) 90. Further, given his years as the Forbes club's armourer, his still continuing tenure as secretary of that club, his membership of the Parkes Pistol Club and his associate membership of the Merriganowry Metallic Silhouette Pistol Club, it seems improbable that he was unaware that the items were prohibited. 91. More importantly, the applicant said in his evidence in chief that he had "kept the big magazines in case [he] got a permit for them". The only possible interpretation of that statement is that he knew they were prohibited and had decided secretly to retain them until an uncertain future day, which might never come, when he would be able to keep them legally. That conclusion is reinforced by the fact that two of the prohibited magazines were not compatible with the pistols that the applicant had registered under his licence. 92. The respondent relies on the applicant's breach of s 7(1) of the WP Act as the basis for his submission that it is not in the public interest for the applicant to have a licence, for reasons of public safety. It was for reasons of public safety that the Legislature saw fit to prohibit large magazines, and while there is no evidence to suggest that the applicant intended to use them for any criminal purpose or in any other way that would constitute a threat to the public, his possession of them itself involved a risk that criminal elements could obtain them, especially as they were not kept in his safe storage at Forbes. Strict compliance is required and licence holders have no discretion in the matter. 93. As Montgomery JM has said, the responsibilities extended to licence holders, especially Category H licence holders, are of a serious nature and licence holders must comprehend the guidelines and laws that govern them and act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police Force [2005] NSWADT 75, [25]. While the applicant's offence lies at the lower end of the scale of seriousness and his firearms history is otherwise excellent, I am satisfied that in this instance he decided to take certain liberties as regards his statutory obligations. 94. Unless he can satisfy the Commissioner, or the tribunal, that he now fully appreciates his obligations under the legislation, it is not in the public interest for him to hold a licence. He has not so satisfied me. While it is possible that he may initially have purchased the magazines innocently, the evidence indicates that at some stage afterwards he became aware that they were prohibited but decided to retain them nevertheless. As matters stand it is not in the public interest for the applicant to be issued with a licence. 1. Our reading of these paragraphs, and the Tribunal's decision as a whole, leads us to conclude that there were two reasons for the Tribunal's conclusion that it was not in the public interest for Mr Wilson to be given a firearms licence. The first was that Mr Wilson knew that the magazines were prohibited weapons (the first reason). The second was that possession of the magazines involved a risk that criminal elements could obtain them especially as they were not kept in his safe storage at Forbes (the second reason). 2. The findings of fact which supported the first reason were that Mr Wilson: 1. admitted that he was keeping the magazines in case he got a permit for them; [46], [91] and [94] (the first finding of fact) 2. stored the magazines in his house at Parkes, rather than at the "safe storage" in Forbes, even though he did not say that he had not travelled to his Forbes address in the relevant period; [89] (the second finding of fact); and 3. had been the Forbes club's armourer for years and was currently secretary of that club, a member of the Parkes Pistol Club and an associate member of the Merriganowry Metallic Silhouette Pistol Club; [89] and [90] (the third finding of fact). 1. The fourth finding on which the Tribunal relied to support the inference that Mr Wilson knew that the magazines were prohibited weapons was that two of the six magazines were not compatible with the pistols that he had registered under his licence; [91] (the fourth finding of fact). 2. The Tribunal was not satisfied that Mr Wilson fully appreciates his obligations under the firearms legislation and concluded that it was not in the public interest for him to hold a licence. The Tribunal expressed the view that before re-applying for a licence he would need to satisfy the Commissioner that he intends to comply strictly with all the applicable provisions of the relevant legislation, and any licence conditions, without exception. Grounds of appeal Characterisation of grounds 1. Mr Wilson has the right to appeal from the Tribunal's decision on a question of law. He also requested that leave be granted for him to appeal on other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b). 2. Mr Wilson was not represented by a lawyer. We have characterised his ten grounds of appeal using our analysis of the Tribunal's reasons for decision set out above: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]. Some of his appeal grounds are on questions of law, others are on other grounds. Grounds 8, 9 and 10 do not disclose a question of law or any other question that could form the basis of a ground of appeal. In the words of Lord Hope of Craigshead in Jones v First Tier Tribunal [2013] UKSC 19; 2 AC 48 at [16] we have taken a "pragmatic approach" to the "dividing line between law and fact". 3. Mr Wilson's grounds of appeal can be summarised as follows: 1. in relation to the first reason, there was no evidence for the first finding of fact; 2. when all the relevant findings of fact are re-examined, it was not reasonably open on the evidence to draw an inference that Mr Wilson knew that the magazines were prohibited; and 3. the second reason for the Tribunal's decision is based on a finding of fact with no evidence to support that finding. 1. No party has a formal onus of proof under the Firearms Act: Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 425; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]- [40]. There is a practical onus on the party who raises a specific fact for consideration to prove the existence of that fact: Re Holbrook and Australian Postal Commission (1983) 5 ALN N 46. No evidence for the first finding of fact 1. The first ground of appeal raises a question of law; namely whether the Tribunal made findings of fact with no evidence to support that finding: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151. The finding at [90] was that: More importantly, the applicant said in his evidence in chief that he had "kept the big magazines in case [he] got a permit for them. 1. The Tribunal went on to say, in the same paragraph, that: The only possible interpretation of that statement is that he knew they were prohibited and had decided secretly to retain them until an uncertain future day, which might come, would not be able to keep them legally. 1. The Tribunal first referred to this evidence at [46] saying that, "he had kept the large magazines in case he was able to obtain a permit for them." 2. Mr Wilson denied ever having said that he had kept the magazines in case he got a permit for them. The Commissioner agrees with Mr Wilson that there was no admission by Mr Wilson to that effect. Indeed, the Commissioner conceded that there was no direct, as distinct from circumstantial, evidence that Mr Wilson had any actual knowledge that he was in breach of s 7(1) of the Weapons Prohibition Act until he was charged with that offence. 3. The Commissioner suggested that the source of the Tribunal's misunderstanding may have been Mr Wilson's evidence to the Tribunal that: The magistrate also said that some of the magazines were to be held so I could apply for a permit to keep them. So I can only assume if the magistrate said that in his – on the transcript, in the court hearing, that the magistrate obviously is aware that I can't apply to possess these other magazines with a permit if I don't have a firearms' licence. (Transcript p 124, line 35.) 1. The Tribunal Member may have misheard or misunderstood the evidence and taken it to be an admission of what had occurred in the past. Whatever the source of the confusion, we are satisfied that the Tribunal made the first finding of fact without there being any evidence to support that finding. That is an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 [90]-[91]. 2. The Commissioner submitted that the first finding of fact was not critical and the Tribunal's decision should stand. The basis for that submission was that the second, third and fourth findings of fact were sufficient to justify the conclusion it reached that Mr Wilson knew that the magazines were prohibited weapons. Alternatively, the Commissioner submitted that it was not necessary for the Tribunal to find that Mr Wilson had deliberately breached s 7(1) of the Weapons Prohibition Act in order to be satisfied that it was not in the public interest for him to have a licence. We now turn to consider those issues. Drawing inferences from facts 1. In our view, the Tribunal erred by finding that Mr Wilson admitted that he was keeping the magazines in case he got a permit for them. That was one of the critical facts on which the Tribunal based its decision that it was not in the public interest for Mr Wilson to have a firearms licence. It is appropriate for the Appeal Panel to determine whether that inference can be drawn on the remaining findings of fact and any other relevant evidence. The Appeal Panel is in as a good a position as the Tribunal at first instance to draw inferences from facts: Warren v Coombs (1979) 142 CLR 331 at 551. 2. When re-considering the Tribunal's conclusion, we must only infer the existence of a fact from other facts if "it is reasonably probable that it exists." In Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [86] Spigelman CJ endorsed the comments of Sir Frederick Jordan in Carr v Baker (1936) 36 SR(NSW) 301 at 306: The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Remaining findings of fact and other relevant evidence 1. The second finding of fact was that Mr Wilson stored the magazines in his house at Parkes, rather than at the "safe storage" in Forbes, even though he did not say that he had not travelled to his Forbes address in the relevant period; [89]. At [88] the Tribunal had set out the Commissioner's submission that it was probable that Mr Wilson was aware that the magazines were prohibited. The Tribunal quoted the Commissioner as saying that: This could explain why they were not stored together with your pistols at your nominated safe storage location, which was likely to be inspected by police. Instead you chose to store them at another location, although I accept that they were placed in a safe to reduce the risk of theft. 1. One interpretation of the Tribunal's finding at [89] is that the Member accepted the Commissioner's submission and assumed that, although the magazines were stored safely in Parkes, Mr Wilson probably had an opportunity to move them to Forbes where they were more likely to be inspected. 2. Another interpretation, which Mr Wilson put forward, was that the Tribunal misunderstood the Commissioner's submission and assumed that Mr Wilson was obliged to store the magazines where his pistols were stored in Forbes. 3. Mr Wilson submitted that the Tribunal drew an inference that because the magazines were stored in his safe at Parkes, and not in Forbes, that he had breached the storage requirements of the Firearms Act. He supports that submission by pointing out that the decision of Wiltshire v Commissioner of Police, New South Wales Police Force [2005] NSWADT 75 to which the Tribunal refers in [93], is a decision about breach of storage requirements. The Commissioner accepts that Mr Wilson has not breached any storage requirements but does not interpret the Tribunal's reasons to constitute a finding that firearms storage requirements had been breached. 4. On balance, reading [88], [89], [92] and [93] together, we are satisfied that the Tribunal was under the impression that by storing the magazines at Parkes, Mr Wilson was attempting to avoid detection of those magazines and that they were not stored as safely as they would have been had they been stored at Forbes. Consequently the Tribunal's finding that the magazines were not stored as safely in Parkes as they would have been in Forbes must be rejected. 5. In relation to the finding that Mr Wilson stored the magazines in Parkes to avoid detection by police, Mr Wilson gave a plausible explanation for that behaviour. That explanation was that he purchased the magazines at a gun show in Penrith, drove home to Parkes and stored the magazines in his safe. The Tribunal based its finding on something that Mr Wilson did not say, that is: . . .he did not say that he had not travelled to his Forbes address in the relevant period. 1. That is not a sufficient evidentiary basis for a finding that Mr Wilson was deliberately concealing the magazines from Police. 2. The third finding of fact made at [90] was that Mr Wilson had been the armourer of a gun club in Forbes for years and was currently secretary of that club, a member of the Parkes Pistol Club and an associate member of the Merriganowry Metallic Silhouette Pistol Club. Mr Wilson submitted that the Tribunal erred when it inferred that being a club's armourer meant that he would know that the magazines were prohibited weapons. Mr Wilson acknowledged that he had been a member of pistol clubs for over 20 years but said that he had only recently joined the Merriganowry Metallic Silhouette Pistol Club. 3. The Commissioner argued that the Tribunal correctly concluded that a person with Mr Wilson's knowledge and experience would have known, or ought reasonably to have known, that the magazines were prohibited. 4. There was no evidence that the positions or licences Mr Wilson held or his membership of various clubs would mean that he knew, or should reasonably have known, that the magazines were prohibited. Mr Wilson made no admissions in relation to those matters and there was no other evidence that would support that connection. Mr Wilson cross examined an expert witness, Mr Steven Wilson, as to whether he was aware of the requirements or skills that were necessary for the Firearms Registry to give a club member an armourer's licence. Mr Steven Wilson, who is a Crime Scene Officer attached to the Forensic Ballistics Investigation Section of NSW Police Force, said he did not know.(Transcript 16 February 2015, p 78, line 40-45.) 5. In our view, it is mere conjecture that Mr Wilson would have known the magazines were prohibited on the basis of the licences he held, his position or his membership of any of the bodies to which the Tribunal referred. 6. The fourth finding which supported the Tribunal's inference that Mr Wilson knew that the magazines were prohibited weapons was that they were not compatible with the pistols that Mr Wilson had registered under his licence. According to Mr Wilson, that finding was made in error because it was based on "unreasonable" expert evidence from Mr Steven Wilson. Initially Mr Steven Wilson gave evidence that the magazines were not compatible with the pistols that Mr Wilson had registered under his licence: Thangasamy: what did you find about these detachable box magazines? Steven Wilson: They were designed to suit, as it says on my certificate, a centre fire 40 calibre Smith & Wesson Glock manufactured self-loading pistol. They've got a capacity of 15 rounds. . . . Thangasamy: so that's not compatible, that box magazine, with a nine millimeter? Steven Wilson: That's not compatible to two nine millimetre firearms. No. Thangasamy: No. It would only be compatible with a 40 calibre Glock, basically? Steven Wilson: Yes, That's correct. (Transcript 15 February 2015 at p 58 line 30-40.) 1. Later in his evidence, Mr Wilson said Mr Steven Wilson admitted that he could not say definitively that a 40 calibre glock magazine holds 12 rounds or 15 rounds, which parts and components of various models of glock pistols are interchangeable and what difference there is between original glock manufactured parts and Lone Wolf manufactured parts. Mr Wilson submitted that Mr Steven Wilson's evidence was 'unreliable' and should not be taken into account. 2. We do not agree with that submission. The vast majority of Mr Steven Wilson's evidence related to the spare parts order, not to the prohibited weapons matter. Mr Wilson did not cross examine Mr Steven Wilson about the compatibility between his pistols and the prohibited magazines. The Tribunal did not make an error in finding that two of the magazines were not compatible with the pistols that Mr Wilson had registered under his licence. There was evidence to support that finding and it is relevant to the question of whether an inference can be drawn that Mr Wilson knew that the magazines were prohibited weapons. 3. Our conclusion is that the only finding which could possibly support the inference that Mr Wilson knew the magazines were prohibited was that two of the six magazines were not compatible with the pistols that Mr Wilson had registered under his licence. The inference that the Commissioner sought to draw was that Mr Wilson acquired the magazines for a purpose that did not relate to use of his existing pistols and that consequently he must have known that the magazines were prohibited. In our view, it is not reasonably probably that that is the case. Mr Wilson's explanation was that he bought the magazines as curios or collectibles. We accept that explanation as plausible. In those circumstances it is irrelevant whether the magazines were compatible with his existing pistols. 4. Mr Wilson submitted that the Tribunal had ignored relevant evidence given by Detective Senior Constable Luke Maynard, one of the officers who executed the search warrant at Mr Wilson's home in Parkes. That evidence, summarised by the Tribunal at [12], was that at the time of the search he, and at least one other officer, had been unsure about whether the large-capacity magazines they found were prohibited items or not, and that outside advice had been sought to clarify the situation. 5. Mr Wilson submitted that this was relevant evidence which the Tribunal failed to take into account when determining whether he knew that the magazines were prohibited weapons. The Tribunal listed all the evidence suggesting that Mr Wilson did know that the magazines were prohibited but failed to mention the one piece of evidence that would have supported an inference that he did not know. We accept that submission. 6. Taking into account all the evidence, there is insufficient evidence which would make it reasonably probable that Mr Wilson knew that the magazines were prohibited weapons. That finding cannot stand. The second reason 1. A second reason for the Tribunal reaching the view that it was not in the public interest for Mr Wilson to hold a firearms licence was that possession of the magazines involved a risk that criminal elements could obtain them especially as they were not kept in his safe storage at Forbes. The Tribunal set out its reasoning in relation to that conclusion at [92] and [93]. 2. We understand the Tribunal at [92] to be making the point firstly, that possession of the magazines itself constituted a risk that criminal elements could obtain them and secondly, that the risk was increased in this case because the magazines were not kept in his "safe storage" at Forbes. When the Tribunal refers to the fact that "strict compliance is required", we have concluded that that is a reference to strict compliance with the safe storage requirements. That view is supported by the Tribunal's reference in the following paragraph to Wiltshire v Commissioner of Police, New South Wales Police Force [2005] NSWADT 75, a decision about safe storage. The Tribunal must have concluded that the magazines were required to be stored with the firearms at the nominated safe storage site. That conclusion was not correct. 3. The Tribunal's second reason can only stand in relation to the finding that possession of the magazines itself constituted a risk that criminal elements could obtain them. That is a risk which applies to any weapons, whether prohibited or not. Because the prohibited magazines were lawfully stored, there was no basis for drawing an inference that there was a greater risk of them being obtained by criminal elements than any other firearm. Commissioner's alternative submission 1. We accept that it was not necessary for the Tribunal to find that Mr Wilson had deliberately breached s 7(1) of the Weapons Prohibition Act in order to be satisfied that it was not in the public interest for him to have a licence. Mr Wilson was found guilty but the Local Court directed that the charges be dismissed: Crimes (Sentencing Procedures) Act, s 10(1)(a). That is the matter on which the Commissioner now relies to submit that it is not in the public interest for Mr Wilson to be granted a licence. 2. Under s 10(3) of the Crimes (Sentencing Procedures) Act, in deciding whether to make an order under s 10(1)(a), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 1. The Tribunal gave the following summary of the proceedings in the Local Court at [86]: At the Parkes Local Court hearing on 10 May 2013 the applicant pleaded guilty to that charge. Clisdell LCM noted the applicant's previous good character and his long and unblemished firearms history. "He could have legally had the items in his possession if he had obtained the appropriate paperwork. It appears it is a matter of degree as to whether or not you are allowed to have a magazine of a particular quantity", his Honour said. The items had been securely kept and there had been no complaint by the prosecution about anything the applicant had done in terms of those requirements (exhibit A2, p 4). The charge was dismissed under s 10(1)(a). 1. We acknowledge that, even if that is correct, it does not necessarily mean that the Magistrate formed a view that it was not contrary to the public interest for Mr Wilson to hold a licence. In any case, it is the Tribunal that must make that judgment in these proceedings. 2. There was no criticism of the Tribunal's understanding of the "public interest" set out at [83] and we adopt that meaning in these reasons. 83. Turning to the first ground, the Appeal Panel has described the "public interest" as "an inherently broad concept giving the [Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual": Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 at [25]. The concept is invoked in order to "ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation": Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681. In this context the public's right to safety must outweigh an individual's right to possess and use a firearm or any financial impact that might flow from licence loss: Huckel v Commissioner of Police [2008] NSWADT 347, [41]. 1. There was no evidence that Mr Wilson had any criminal links or associations. He purchased the magazines as curios or collectibles. He co-operated with police and pleaded guilty. There is no public interest reason why a person in Mr Wilson's situation should be refused a licence. Commissioner's contention 1. The Commissioner supported the orders made by the Tribunal but contended that the Tribunal's decision that it was not in the public interest that Mr Wilson be granted a licence should be affirmed on grounds relating to the spare parts order. The Commissioner submitted that the evidence adduced in the hearing below supported a finding that Mr Wilson had a nefarious purpose by ordering firearms parts from a dealer in Queensland. That evidence is reviewed at [54] – [63] and [95] to [106] of the reasons for decision. According to the Commissioner, that evidence should have been given more weight than the uncorroborated, unsworn and untested evidence from Mr Wilson in connection with the spare parts order. 2. In relation to the Tribunal's decision at [107] that Mr Wilson is a fit and proper person to hold a firearms licence, the Commissioner contended that the evidence in relation to the spare parts order would satisfy the Appeal Panel that he is not a fit and proper person and cannot be trusted to have possession of firearms without danger to public safety or to the peace. 3. The facility for respondents to appeals to raise contentions is provided informally by way of a question in the Notice of Reply. If raising a contention, the respondent is asked to "state the orders supported and other reasons not given by the Tribunal which you say support the original orders." 4. Contentions relate, in particular, to points of law and points of construction which were not agitated below. The relevant principles were summarised by Barrett JA in Hannover Life Re of Australasia Ltd v Dargan [2012] NSWCA 185 at [23] – [25]: [23] While an appellant ordinarily cannot raise on appeal matters that were not agitated below, a respondent — who is made party to the appeal whether he or she likes it or not — is not so limited: David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416. Subject to the procedural requirement of notice of contention (as a means of avoiding surprise), the respondent is entitled to seek to uphold the decision below on "any good legal ground appearing upon the evidence, although he did not present it in the court below". These are the words of Jordan CJ in NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273 at 282. [24] This formulation makes it clear that the evidential base established at trial is alone available. Points of law and points of construction not argued below are therefore particularly suited to being raised by a respondent on appeal. [25] The entitlement of a respondent to which Jordan CJ referred may be denied by considerations of fairness applying in a particular case. Active assent to a confining of the case at first instance will not generally represent such a consideration, although a barrier may arise if, in the court below, the respondent positively conceded a particular position on the law and declined an opportunity to argue it. What I have just said comes from the judgment of Lush J in Waller and Son Ltd v Thomas [1921] 1 KB 541 at 548. 1. The Commissioner adduced extensive evidence in relation to the spare parts order at the hearing at first instance and the issues were thoroughly ventilated at that time. The Tribunal made findings about that issue and applied the relevant law. The Commissioner did not submit that the Tribunal had made an error of law in relation to those findings and there was no cross appeal. In those circumstances the matters the Commissioner raised are not appropriate matters to raise by way of contention. 2. Finally, the Commissioner submitted that the Appeal Panel should consider a new reason for refusing the licence raised for the first time on appeal. That reason was that, in relation to the spare parts order, Mr Wilson attempted to breach s 50AA(1) of the Firearms Act: 50AA Acquisition of firearm parts (1) A person must not acquire a firearm part unless the person: (a) is the holder of a licence or permit for the kind of firearm to which the firearm part relates, or (b) is authorised by a permit to acquire the firearm part. Maximum penalty: imprisonment for 5 years. (2) A person must not acquire a firearm part that relates to any kind of pistol or prohibited firearm unless the person: (a) is the holder of a licence or permit for that kind of pistol or prohibited firearm, or (b) is authorised by a permit to acquire the firearm part. 1. The Tribunal dealt with a submission in relation to a potential breach of s 50AA(2) (at [59], [97] and [98]). On appeal, the Commissioner submitted that Mr Wilson had breached or attempted to breach s 50AA(1), a matter not raised at first instance. The difference between s 50AA(1) and (2) is that sub-section (2) relates to "a firearm part that relates to any kind of pistol or prohibited firearm" whereas sub-section (1) relates simply to "a firearm part". As Mr Wilson was licenced to hold two Glock 9 mm semi-automatic (self-loading) pistols for target and sporting purposes, any breach or attempted breach of s 50AA would come within sub-section (2), not sub-section (1). The Commissioner's belated reliance on s 50AA(1) does not justify the Appeal Panel re-examining the merits of the Tribunal's conclusion on the spare parts issue. The Tribunal found at [105] that there was no evidence of wrongful intent or criminal associations. Orders 1. The appeal is allowed. 2. The Tribunal's decision made on 22 June 2015 to affirm the decision of the Commissioner of Police to refuse Mr Wilson's application for a firearms licence is set aside. 3. In substitution for the Tribunal's decision, the following decision is made: Mr Wilson's application for a Category ABH firearms licence is granted. ********** 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: 23 November 2015