Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Joseph v NSW Commissioner of Police [2017] NSWCA 31 Hearing dates: 7 February 2017 Decision date: 06 March 2017 Before: Basten JA at [1]; Macfarlan JA at [23]; Ward JA at [75] Decision: (1) Application for leave to appeal dismissed with costs. (2) Order, by consent, that the time for Mr Joseph to file his Notice of Intention to Appeal be extended to the date upon which it was in fact filed. Catchwords: ADMINISTRATIVE LAW – refusal of an application for the issue of a firearms dealer licence under the Firearms Act 1996 (NSW) – evidence relating to the applicant's allegedly fraudulent conduct – criminal charges withdrawn but conduct established on the balance of probabilities – conduct relevant to the licence application – a lesser standard of proof than the criminal standard could be applied in making findings concerning the conduct – relevance of reasons for withdrawal of criminal prosecution ADMINISTRATIVE LAW – refusal of an application for the issue of a firearms dealer licence under the Firearms Act 1996 (NSW) – whether decision maker obliged to refer to relevant material where no express or implied statutory obligation to consider it and adequate reasons for the decision given Legislation Cited: Administrative Decisions Review Act 1997 (NSW), ss 114, 115 Administrative Decisions Tribunal Act 1997 (NSW), ss 53, 55, 113 Civil and Administrative Tribunal Act 2013 (NSW), ss 7, 32, 80, 83, Sch 1, cls 6, 10 Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 Evidence Act 1995 (NSW), s 128 Firearms Act 1996 (NSW), ss 8, 10, 11 Supreme Court Act 1970 (NSW), s 48 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 Commissioner of Police v Joseph [2015] NSWCATAP 9 Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 Joseph v Commissioner of Police, NSW Police Force [2014] NSWCATAD 46 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 Category: Principal judgment Parties: Marsleno Joseph (Applicant) Commissioner of Police (NSW) (Respondent) Representation: Counsel: Mr G Laughton SC / Mr K Dailly (Applicant) Mr C Mantziaris (Respondent) Solicitors: Mainstone Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): CA 2016/207225 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Appeal Panel Citation: [2015] NSWCATAP 9 and [2016] NSWCATAP 124 Date of Decision: 10 February 2015 and 9 June 2016 Before: K P O'Connor AM, ADCJ, Deputy President, Appeals; P Molony, Senior Member File Number(s): AP 14/46368 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] On 15 March 2012 Mr Joseph lodged an application for the issue of a firearms dealer licence under the Firearms Act 1996 (NSW). On 19 December 2012 the application was refused by the Commissioner of Police. The grounds for refusal included that in past applications for pistol permits Mr Joseph had misrepresented his intended use of the pistols, that Mr Joseph had been involved in a series of incidents in which he had been assaulted, and that the proposed dealership premises were not suitable because of their proximity to community-based premises. On 4 April 2013 the Commissioner's original decision was affirmed on internal review. Mr Joseph applied to the Administrative Decisions Tribunal (as it then was) for a further review. In those proceedings, the Commissioner of Police filed material relating to Mr Joseph's involvement in the purchase of commercial quantities of tobacco products and phone cards from convenience stores in 2007 ("the 2007 fraud evidence"). These items were paid for by an electronic bank debit card linked to a bank account in Mr Joseph's name that had no funds in it. Payment was authorised because of a technical deficiency in the bank's security system. Criminal charges were brought against Mr Joseph in relation to these events, but were dismissed before trial. The Senior Member of the Tribunal rejected the evidence of these events on the grounds of fairness to Mr Joseph. She also found that there was no proper basis for the refusal of Mr Joseph's application, and set aside the Commissioner's decision: [2014] NSWCATAD 46. On 12 May 2014 the Commissioner lodged an appeal to the Appeal Panel of the NSW Civil and Administrative Tribunal. On 10 February 2015 the Appeal Panel set aside the Senior Member's order and granted leave to extend the appeal to the merits of the decision: [2015] NSWCATAP 9. On 9 June 2016 the Appeal Panel affirmed the Commissioner's refusal. In making this order the Appeal Panel had regard to the 2007 fraud evidence, and proceeded on the basis that there was no known explanation for the withdrawal of the charges against Mr Joseph: [2016] NSWCATAP 124. Mr Joseph then applied to this Court pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) for leave to appeal against the decision of the Appeal Panel on questions of law. Mr Joseph contended that the Appeal Panel erred in finding that the Senior Member wrongly excluded the 2007 fraud evidence, in not remitting the matter back to the Senior Member after the Appeal Panel allowed the 2007 fraud evidence, in failing to consider evidence of the police prosecutor's reasons for withdrawing the criminal charges, and in failing to consider evidence the subject of a non-publication order when exercising its discretion. Held, dismissing the application for leave to appeal (per Macfarlan JA, with Basten and Ward JJA agreeing): (1) The 2007 fraud evidence was relevant to Mr Joseph's application. The evidence established, at least on the balance of probabilities, that Mr Joseph had engaged in pre-planned, fraudulent conduct. The Appeal Panel could consider this evidence and could do so after applying a lesser standard of proof than the criminal standard. Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 referred to. (2) The only basis upon which Mr Joseph submitted that the Appeal Panel should have remitted the matter to the Senior Member was to give Mr Joseph an opportunity to respond to the 2007 fraud evidence. However Mr Joseph had ample opportunity between the first Appeal Panel decision and its subsequent hearing of the appeal on the merits to prepare a challenge to this evidence. He chose not to take this course. (3) Evidence of the police prosecutor's reasons for withdrawing the criminal charges was relevant to the decision to refuse Mr Joseph's licence application. However the Appeal Panel did not err in not referring to this evidence as the reasons did not assist Mr Joseph. Moreover, the Appeal Panel was not required to refer to material before it which might be thought by a party, or by a reviewing court, to be relevant where the Firearms Act did not explicitly or implicitly require its consideration and the Appeal Panel gave adequate reasons for its decision. Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 referred to. (4) The evidence which was the subject of the non-publication order would not have significantly assisted Mr Joseph's case. Moreover, there is no basis for an inference that the Appeal Panel overlooked Mr Joseph's evidence. Per Basten JA (Ward JA agreeing): The Appeal Panel was not obliged to remit the matter back to the Senior Member. No challenge was taken to the decision not to remit at the time it was made. Even if such a challenge had been made, there would have been no basis to think that the Appeal Panel would not have given Mr Joseph the opportunity to put on evidence at the hearing on the merits, including oral evidence, if this was necessary and appropriate. Mr Joseph was in fact given this opportunity. His evidence was not before the Appeal Panel as a result of his forensic decision. Judgment 1. BASTEN JA: On 15 March 2012 the applicant, Marsleno Joseph, applied for a firearms dealer licence, pursuant to s 10 of the Firearms Act 1996 (NSW). A "firearms dealer licence" is one of the categories of licence specified in s 8 of the Firearms Act. On 19 December 2012 a delegate for the Commissioner of Police advised the applicant that his application had been refused. The applicant sought internal review of that decision. On 4 April 2013 he was advised that the decision to refuse the licence application had been affirmed. 2. The applicant then exercised his right to review that decision before the Administrative Decisions Tribunal, as it then was. On 14 April 2014 a Senior Member of the Administrative and Equal Opportunity Division, of what had become the NSW Civil and Administrative Tribunal ("NCAT"), set aside the decision under review. [1] 3. On 12 May 2014 the Commissioner of Police lodged an appeal to an Appeal Panel of NCAT. The notice of appeal indicated that the Commissioner sought leave to appeal on the merits; that is, an appeal not limited to a question of law. 4. The parties appear to have assumed that the right of appeal to the Appeal Panel arose under s 113 of the Administrative Decisions Review Act 1997 (NSW) ("Review Act"). That view was also adopted by the Appeal Panel on the basis that "the matter was part heard in the ADT at the time of its abolition", referring to the transitional provisions in the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), Sch 1, cl 10(3)(b). [2] Although nothing turns on this conclusion in these proceedings, it appears not to be correct. While it is true that cl 10(3)(b) of Sch 1 of the NCAT Act applies the provisions of any Act "that would have applied to or in respect of the appeal" had the NCAT Act not been enacted, that provision only applies to an appeal made to an appeal panel of NCAT "under this clause". [3] Clause 10(1) states that the clause applies "to each of the following unexercised rights", the first of which is "an unexercised right to appeal against a decision of the Administrative Decisions Tribunal or another tribunal … to an Appeal Panel of that Tribunal". [4] Clause 10 appears in Div 3 of Sch 1. The term "unexercised right" is defined, for the purposes of that Division in the following terms: 6 Interpretation (1) In this Division: … unexercised right means a right (including a right exercisable only with leave) that: (a) was available to be exercised immediately before the establishment day, and (b) had not yet been exercised before that day. 1. It is clear that the right of appeal to the Appeal Panel was not such a right. The "establishment day" was 1 January 2014. [5] The decision of the Senior Member was made on 14 April 2014. The transitional provisions did not apply for two reasons. First, that decision was not a decision of the Administrative Decisions Tribunal, but a decision of NCAT; it was not, therefore, an unexercised right identified in cl 10(1)(a) of Sch 1. Consequently, it was not an appeal made under that clause for the purposes of cl 10(3). Secondly, it was not an "unexercised right" because it was not available to be exercised immediately before 1 January 2014. It is not possible to exercise a right of appeal against a decision which has not yet been made. 2. The transitional provisions, which should be well understood by NCAT, are not ambiguous; they were not engaged by the present appeal. It followed that the appeal available to the Commissioner of Police arose under s 80 of the NCAT Act. [6] That appeal was available "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds". [7] The Appeal Panel had the power to conduct a new hearing and admit further evidence. [8] Although the Commissioner wrongly identified the basis on which the appeal was brought and the Appeal Panel wrongly identified the source of its powers, there was a relevant right of appeal and the Appeal Panel had the relevant powers, expressed under the new legislation in terms which were not in effect materially different to the old. [9] 3. On 10 February 2015, the Appeal Panel granted leave to extend the appeal to include review on the merits. In doing so, the Panel first considered and determined ground 1, finding error on a question of law, which, as it noted, required that the appeal be upheld. [10] It then proceeded to a further hearing on 2 March 2016, a final judgment being delivered on 9 June 2016. That decision set aside the order made by the Senior Member on 14 April 2014 and affirmed the decision of the Commissioner under review. [11] The proceeding before this Court was an application for leave to appeal from that decision. The appeal is limited to a question of law. [12] 4. I agree with the reasoning of Macfarlan JA and the conclusion that leave to appeal should be refused. I would add some further observations with respect to an issue which was mainly explored in the course of oral submissions. 5. Ground 2 in the draft notice of appeal asserted that the Appeal Panel erred in not remitting the matter back to the Senior Member after it allowed the Commissioner to rely on certain material which had been excluded by the Senior Member, relating to several instances of fraud which were alleged to have occurred in March 2007. That ground was misconceived in two respects. 6. The basis on which remittal was sought, namely to consider the excluded material, arose in February 2015. It was addressed by the Appeal Panel in its first decision and it determined then not to remit the matter. [13] The appeal proceeded thereafter by a lengthy interlocutory stage, resulting in a further hearing more than 12 months later. 7. Whether the applicant opposed the decision not to remit in February 2015 is now immaterial. No challenge was taken to the decision not to remit at the time the decision was made. On one view, the applicant sat on his hands whilst the Panel proceeded to review the factual determinations and then, when the outcome was unfavourable, complained that the Appeal Panel should not have undertaken that function. No justification was proffered for now seeking leave to appeal the procedural decision not to remit, when it was not challenged when made. 8. The second point, namely that there is (and was) no basis for challenging the decision not to remit is demonstrable by considering why the decision in February 2015 could not have been challenged at that time. 9. The ground now raised was that the Senior Member had heard oral evidence from a number of witnesses, including the applicant; that process was not repeated before the Appeal Panel. Further, it was submitted that the Appeal Panel took account of the formerly excluded evidence, without hearing evidence of the applicant in relation to those matters. 10. A challenge to the refusal to remit based on those grounds, and raised prior to the second hearing before the Appeal Panel, would have been met with the obvious response that there was no basis to think that the Appeal Panel would refuse the applicant the opportunity to put on such evidence as he wished and to give oral evidence, if that were seen to be necessary or appropriate. There was no evidence before this Court that he did not have that opportunity. Indeed, when the Commissioner sought to put on evidence to demonstrate the extent to which he had such an opportunity, the applicant promptly withdrew any complaint that there had been no opportunity. 11. In the result, it was no doubt true that the Appeal Panel did not have his oral testimony, either in relation to the evidence which had been excluded before the first Tribunal, or in relation to any other matter. That was not because of any denial of opportunity, but rather because of a forensic decision made by the applicant. Nor was there any explanation (let alone evidence) to support a conclusion that, if there had been a remittal, a different approach would have been adopted by the applicant. 12. In its second decision, the Appeal Panel noted that, as a result of the leave granted to review the merits of the application, the Appeal Panel was "in effect, sitting at first instance, and therefore [had] the powers vested in the Tribunal by s 63 of the [Review Act]". [14] There was no challenge to that proposition. Nevertheless, counsel for the applicant was asked if his submission assumed that "the nature of the proceeding before the appeal panel is a Fox v Percy type review where if there's been a finding of credibility, as to credibility below, then [it] can't be interfered with except on limited grounds?" [15] 13. In response, counsel submitted: [16] "[I]t doesn't necessarily mean that there's a strict Fox v Percy type assertion that can be made out, but when effectively what the appeal panel has done is rejected the reasons of the senior member which were based upon hearing and seeing the applicant … these licence appeals, in our submission, essentially it gives the opportunity for the tribunal to see and hear an applicant. And at the very best, they get a snapshot of what this person is like. And for the appeal panel to then reject findings of the senior member based upon explanations given by the applicant in the witness box, in our submission is an error of law." 1. It may be inferred that, while the applicant was not prepared to go into the witness box to respond to the 2007 fraud allegations, he wished in some way to preserve the benefits which may have flowed from him giving evidence before the Senior Member. That could only occur if the findings of the Senior Member were beyond challenge because she had taken oral evidence, or if the matter were remitted to the same Senior Member, where credibility based findings might be preserved. 2. On either basis, the reasoning is fallacious. Accepting for present purposes that the Senior Member had erroneously excluded a body of relevant material, any findings of fact made as to the character or fitness of the applicant could not stand. Nor was it open to the applicant to seek remittal to the same member in order to obtain some benefit from the findings originally made. 3. In analogous circumstances, the Full Court of the Federal Court remitted a matter to the Refugee Review Tribunal, as it had been previously constituted to hear the initial review application. The High Court held that the Full Court had erred in exercising its discretion in that way. [17] As Gleeson CJ stated: [18] "It is clear that the reason for the order finally made by the Full Court was a view that the interests of justice required that the respondent should be protected as far as possible from the contingency that, on the hearing of the remitted matter, the Tribunal might take a view of the facts less favourable to the respondent than had been taken by [the member who heard the original application]." The Court held that that was an improper exercise of the power. In part, that was because there would need to be a fresh hearing at which any earlier finding would be irrelevant. 1. This approach applies with greater force in the present case, where the Appeal Panel, having power to deal with the factual matters, refused to order remittal. That cannot, in the present circumstances, have demonstrated an error of law; to make an order of remittal, however, for the reason hypothesised above, would have involved an error of law. 2. In all other respects, I agree with Macfarlan JA that the application for leave to appeal should be refused. 3. MACFARLAN JA: This is an application pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) by Mr Marsleno Joseph for leave to appeal on questions of law against decisions of the Appeal Panel of the Civil and Administrative Tribunal dated 10 February 2015 and 9 June 2016 ([2015] NSWCATAP 9 and [2016] NSWCATAP 124). By these decisions, the Appeal Panel set aside an order made on 14 April 2014 by a Senior Member of the Tribunal. The Senior Member's order had in turn set aside a decision of the Commissioner of Police to refuse an application lodged on 15 March 2012 made by Mr Joseph for the issue to him of a firearms dealer's licence under the Firearms Act 1996 (NSW) ([2014] NSWCATAD 46). 4. In support of his application for leave to appeal to this Court, Mr Joseph contended that the Appeal Panel made the following errors of law: "(1) The Appeal Panel erred in finding that the 2007 fraud evidence was wrongly excluded by the Tribunal (the excluded evidence). (2) The Appeal Panel erred in not remitting the matter back to the Member after it allowed the excluded evidence. (3) The Appeal Panel erred in failing to have regard to evidence of a conversation between the informant police officer and the Police Prosecutor as to the reasons for the withdrawal of the 2007 fraud matter. (4) [Not pressed]. (5) The Appeal Panel erred in failing to consider evidence in favour of the Applicant when exercising its discretion, such as [identified evidence the subject of a suppression order made by this Court under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW)]." 1. For the reasons given below, Mr Joseph's application for leave to appeal should be dismissed with costs. FACTUAL BACKGROUND 1. In 2007 Mr Joseph was, on three occasions, involved in the purchase of commercial quantities of tobacco products and phone cards from convenience stores in the middle of the night. These items were paid for by an electronic bank debit card linked to a bank account in his name that had no funds in it. Payment by the card was authorised because of a technical deficiency in the bank's security system. Evidence of these events and of subsequent criminal charges against Mr Joseph, which were dismissed before trial, is the "excluded evidence" referred to in Ground (1) set out above at [24]. It is also referred to below as the 2007 fraud evidence. 2. Between March 2008 and September 2011 Mr Joseph was assaulted on a number of occasions and had threats of significant violence made to him. 3. In November 2010 he was issued with a probationary pistol licence and on 18 February 2012 he was issued with a high calibre pistol permit. 4. On 30 January 2012 he lodged six applications for a permit to acquire a handgun for the purpose of "sport/target" shooting and on 9 February 2012 he lodged another 10 similar applications. On 22 February 2012 he lodged eight applications for a permit to acquire a high calibre pistol which he again said was to be for "sport/target" shooting. 5. In January and February 2012 he acquired 22 pistols that he stored in his home safe. Many of the pistols were identical in make, model and calibre. 6. In response to concerns expressed by the Commissioner of Police in relation to his permit applications, Mr Joseph conceded by letter dated 29 February 2012 that he did not intend to use the pistols the subject of his applications for target shooting. Mr Joseph stated that he had purchased the pistols for use in a new business that he was in the process of establishing. 7. On 13 March 2012 Mr Joseph applied for the firearms dealer's licence the subject of these proceedings. 8. On 30 June 2012 Mr Joseph was the victim of a robbery. He had 22 pistols stolen. When police attended his premises, he was found tied up. THE FIREARMS ACT 1. Section 3(1) of the Act states the Act's underlying principles to be: "(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, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms." 1. Sections 7 and 7A create offences of possessing or using firearms without a licence or permit under the Act. Section 8 identifies categories of licences, one of which is a firearms dealer licence. Section 4 relevantly defines a firearms dealer as a person who carries on a business of manufacturing, acquiring or supplying firearms. Section 10 provides for the making of applications for licences and s 11 provides that the Commissioner of Police may issue licences in certain circumstances. Of present relevance are subsections (3), (4) and (7) of s 11: "(3) 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, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State. … (4) 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, or (b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's intemperate habits or being of unsound mind. … (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 12 provides that the Commissioner is not to issue a licence unless he or she is satisfied that the applicant has "a genuine reason" for possessing or using the firearm. A "genuine reason" is stated to include "sport/target shooting", "business or employment" and "firearms collection". RIGHTS OF REVIEW 1. At the relevant time, s 53 of the Administrative Decisions Tribunal Act 1997 (NSW) (now renamed the Administrative Decisions Review Act 1997 (NSW)) gave a disappointed applicant for a licence a right to an internal review by the Commissioner of Police. Section 55 conferred a right to apply to the Tribunal for a further review if the original decision was confirmed on the internal review. In turn, s 113 gave a right of appeal from a decision of the Tribunal constituted by a single member to an Appeal Panel. Such an appeal was confined to a question of law, unless the Appeal Panel gave leave for an extension to a review on the merits of the Tribunal's decision. Although s 113 has been repealed, it was treated by the parties as the source of the Commissioner's right to appeal to the Appeal Panel. The correctness or otherwise of this assumption is discussed by Basten JA at [4]-[6] above. In relation to the proceedings in this Court, the parties accepted that the relevant Act is the Civil and Administrative Tribunal Act 2013 (NSW), which permits a party to an external or internal appeal in the Tribunal to appeal to the Supreme Court, with leave, on a question of law (s 83). As the Appeal Panel in the present case included an acting District Court judge, Mr Joseph's application is assigned to the Court of Appeal (s 48(1)(a)(vii) of the Supreme Court Act 1970 (NSW)). THE DECISIONS CONCERNING MR JOSEPH'S LICENCE APPLICATION The Commissioner's refusal of the application 1. The Commissioner of Police refused the application on 19 December 2012. His grounds for refusal included that in past applications for pistol permits Mr Joseph had misrepresented his intended use of the pistols (see [29] and [31] above), that Mr Joseph had been involved in a series of incidents in which he had been assaulted (see [27] and [33] above) and that the proposed dealership premises were not suitable because of their proximity to community-based premises. The internal review by the Commissioner 1. On 4 April 2013 the Commissioner's internal review affirmed the refusal but on somewhat different grounds. These included that the application was not in the public interest because of public safety implications, that there had been attacks upon Mr Joseph after he gave evidence against others, that Mr Joseph lacked understanding in relation to the operation of a firearms dealership and that his intended dealership premises were unsuitable. The decision of the Senior Member of the Tribunal 1. The Senior Member found that there was no proper basis for the Commissioner to refuse to issue a firearms dealer's licence to Mr Joseph. She rejected the 2007 fraud evidence referred to in [26] above on the ground of fairness to Mr Joseph. The Appeal Panel's decision 1. In its decision of 10 February 2015 the Appeal Panel determined that: 1. The Senior Member was in error in refusing to admit the 2007 fraud evidence. 2. The Senior Member misapplied the test of "public interest" referred to in s 11(7) of the Firearms Act. 1. The Appeal Panel also gave leave to extend the appeal to the merits of the Tribunal's decision and gave directions for the appeal's further conduct. 2. The Appeal Panel delivered its decision on the merits on 9 June 2016, holding that the Tribunal's order of 14 April 2014 should be set aside. As a result, the Commissioner's decision to refuse Mr Joseph's application for a dealer's licence remained effective. 3. The Appeal Panel had regard to the 2007 fraud evidence in stating: "43 Counsel for the Commissioner said that the reason the prosecution did not proceed was that it had no evidence that Mr Joseph knew that the account had no money in it, because of uncertainty as to whether a Commonwealth bank letter had been sent some months (sic) which informed him that his account was out of funds. There was nothing in the documentary material to support that account. We will simply proceed on the basis that there is no known explanation for the withdrawal of the prosecution. … 45. In our view, it is plain that Mr Joseph was involved in questionable conduct on the nights in question. He was purchasing commercial quantities of the items mentioned, and if he did not actually know that his card was short of funds, in our view he ought to have known, in circumstances where the linked account had been in overdraft from 1 June 2006 to 15 September 2006, and was formally closed by written notice from the bank on 15 November 2006. … 47. In our view, this material is clearly relevant to the assessment of Mr Joseph's fitness and integrity, and to the public interest in granting him a dealer's licence. The purchases were on a scale that was of a commercial character. We infer that Mr Joseph had a business purpose of some kind in making the purchases, and must have intended to trade in the goods in some way. We do not need to get involved here in the further question of whether he had a criminal intent of the kind necessary to establish a criminal offence." DETERMINATION OF MR JOSEPH'S APPLICATION FOR LEAVE TO APPEAL TO THIS COURT Proposed Grounds (1), (2) and (3): The 2007 fraud evidence 1. In addition to detailed police "COPS" reports concerning the 2007 events referred to in [26] above, there was in evidence before the Tribunal a statement of Detective Senior Constable Harris who was involved in the investigation and subsequent prosecution of Mr Joseph in the Local Court at Penrith on fraud charges arising out of those events. 2. The statement included the following material which was unchallenged and not the subject of any contradictory evidence: "7 The Police investigation revealed that Mr Joseph and the 2 co-accused persons were privy to information that usually, between about 1 am and 3 am every Monday morning, the Commonwealth Bank's computer system was disabled for ongoing maintenance. 8 This meant that if a Commonwealth Bank debit card holder attempted to use the debit card to purchase goods between about 1 am and 3 am each Monday morning that purchase could not be electronically approved by the Commonwealth Bank's computer system. Any proposed transaction would therefore be declined. 9 To overcome this difficulty, the Commonwealth Bank had put in place a policy of automatically approving any purchases that were made between about 1 am and 3 am each Monday morning using a debit card while its computer system was disabled for maintenance. … 11 On Monday, 5 March 2007, and Monday, 12 March 2007, Mr Joseph and the 2 co-accused persons purchased goods between about 1 am and 3 am using Commonwealth Bank debit cards held in their own name. 12 Those transactions were approved by the Bank automatically. For the reasons mentioned above, these transactions were approved, even though the accounts linked to those debit cards had been closed or did not have sufficient funds available to cover the costs of those purchases. 13 The goods that Mr Joseph and his 2 co-accused purchased included cigarettes and Vodaphone mobile telephone recharge vouchers. Cigarettes and Vodaphone mobile telephone recharge vouchers can easily be 'on-sold' without trace. 14 In total, the value of the goods that Mr Joseph and the 2 co-accused persons allegedly purchased (as described above) was at a total cost of $12,122.59. … 16 As a result of further investigations by the Police, including documents obtained during a search of Mr Joseph's home (under search warrant), I am aware that Mr Joseph had, prior to his arrest, received letters from the Commonwealth Bank requiring him to cease using his debit card to purchase goods as described above and to repay the outstanding funds. … 21 When I attended Penrith Local Court on 25 June 2007, I entered one of the Court rooms, the details I (sic) which I do not recall, where the proceedings were listed for mention. At that time I had a conversation with the Police Prosecutor. Words to the following effect were said: He said: 'We will have to withdraw the charges. As you know one of Joseph's co-accused was found not guilty on the basis of an RTA defence'. I said: 'I don't agree. Joseph received letters from the bank that (sic) telling him to stop using his card and to repay the outstanding money. He knew what he was doing'. He said: 'OK, I understand what you're saying.' 22 Based on my previous Police experience, I understood an 'RTA defence' was a colloquial name for a defence raised by defendants in prosecutions arising from the cancellation of a driving licence or some other form of licence where the accused person argues that he or she had no knowledge that the action upon which the offence is based was not illegal, as the accused person had not received a driving licence cancellation notice. 23 After a period of time, the matter was mentioned and I heard the Police Prosecutor say to the Magistrate words to the effect that 'the charges against Marsleno Joseph are to be withdrawn'. This surprised me considerably. 24 Later that morning, I had a conversation with Sergeant Carl Smith, the Police Prosecutor who had carriage of the Joseph matters earlier that day. During that conversation words to the following effect were said: I said: 'Why were the charges withdrawn?' He said: 'I talked to my supervisor about it. If the proceedings were unsuccessful the Court would likely make an adverse costs order against the Police. Joseph could have successfully raised an RTA defence – by saying that he wasn't guilty because he wasn't aware that the account linked to his debit card had no money in it.' I said: 'I don't agree – during the search warrant letters in opened envelopes from the Commonwealth Bank were found telling Mr Joseph to stop using his debit card to purchase goods when there was no money in his account to do so.' He said: 'Withdrawing the charges was the best thing to do in the circumstances. We would have been up for a costs order if we lost.' [25] I had not otherwise been spoken to by the prosecutor prior to the withdrawal and I would have objected strongly to the withdrawal, as it appeared to me Mr Joseph was aware of the status of the account linked to his debit card. Further it was clear from my review of Mr Joseph's bank account statements that, at no stage, did he have funds in any of his accounts that would have covered part of the purchases that he was involved in in the early hours of the morning." 1. By her decision of 14 April 2014 the Senior Member excluded evidence of the 2007 events because she concluded that Mr Joseph had not had a proper opportunity to challenge it. In its decision of 10 February 2015 the Appeal Panel found that the Senior Member had erred in determining the admissibility of the evidence by reference only to prejudice to Mr Joseph. The Appeal Panel continued: "28 Had the Tribunal concluded that the material was relevant, it would then have needed to construct a process that dealt fairly with the concerns raised by the review applicant as to self-incrimination (possible issuance of an evidentiary certificate, or other methods): see further, Re LLSY, previously cited, esp at [51]-[53]; Pearce, Administrative Appeals Tribunal (3rd ed, 2013), LexisNexis at [7.14]; and also, Healthcare Complaints Commission v Wingate [2007] NSWCA 326; (2007) 70 NSWLR 323 at [43]-[46] per Basten JA. It may also be necessary to deal with any lateness of notice of an intention to examine the review applicant in regard to those matters, and any applications for a reasonable adjournment, costs and the like." 1. The subsequent hearing (on the merits) before the Appeal Panel did not occur until 2 March 2016, some 13 months after its first decision. In the interim, as the later Appeal Panel decision records, the Appeal Panel settled with the parties the evidence to be adduced at the further hearing. This new evidence comprised "essentially the previously excluded material relating to the 2007 events" ([25]). In addition to the evidence and documents that had been before the Senior Member, both the Commissioner and Mr Joseph filed further submissions and additional evidence ([28]). At the hearing, Mr Joseph gave evidence, by means of a written statement, but that did not deal with the 2007 events. 2. Before this Court, Mr Joseph's senior counsel ultimately accepted that evidence of the 2007 events was relevant to the decision to be made in relation to Mr Joseph's dealer's licence application. This concession was plainly correct as the evidence, particularly as it was enhanced by the evidence of Detective Harris (see [46] above), strongly suggested that there had been pre-planned, fraudulent conduct on Mr Joseph's part. Bearing in mind that Detective Harris' evidence was not challenged, this and the other evidence of the 2007 events established, at least on the balance of probabilities, that Mr Joseph had engaged in such conduct. As the Appeal Panel found in its second decision (see [44] above), Mr Joseph's engagement in this conduct was relevant to the question of whether he should be permitted to deal in firearms. 3. Nevertheless, Mr Joseph contended that, for the following reasons, the Appeal Panel should not have had regard to the evidence about the 2007 events. Proposed Ground (1): The Appeal Panel erred in finding that the 2007 fraud evidence was wrongly excluded by the Tribunal 1. Mr Joseph did not argue before this Court that the Appeal Panel was wrong in finding, in its first decision, that the Senior Member erred in confining her attention to prejudice to Mr Joseph when considering the admissibility of the 2007 fraud evidence. There was no error in the Appeal Panel's approach as the Senior Member should have considered, as the Appeal Panel pointed out, ways in which any prejudice could be minimised or overcome (see [47] above). 2. The Appeal Panel did not, as the terms of the ground of appeal suggest, determine that the Senior Member should have admitted the evidence. Rather it found that the Senior Member's decision was flawed. The Appeal Panel then proceeded (in its second decision) to re-determine Mr Joseph's appeal against the Commissioner's refusal to issue a dealer's licence to him. In the course of that re-determination, the Appeal Panel found that the evidence was properly before it. The Appeal Panel did not err in making this finding Proposed Ground (2): The Appeal Panel erred in not remitting the matter back to the Member after it allowed the excluded evidence 1. It is unnecessary to consider whether the Senior Member's concern that Mr Joseph had not had the opportunity to challenge the 2007 evidence was justified because ample opportunity to prepare for a challenge to the evidence was given in the period (lengthy, as it transpired) between the first Appeal Panel decision and its subsequent hearing of the appeal on the merits. As noted above ([48]), Mr Joseph indicated during that period that he would rely upon further evidence, including from himself. However he chose not to reply to the 2007 fraud evidence. I add in passing that these matters sufficiently appear from the Appeal Panel's decisions, and that it has been unnecessary to have regard to an affidavit of Mr Carlo Zoppo which the respondent read, subject to objection, to provide a detailed account of what occurred below. 2. A concern that he might incriminate himself for the purposes of other proceedings did not explain Mr Joseph's decision to leave the 2007 fraud evidence unchallenged because he could have sought the issue of a Certificate under s 128 of the Evidence Act 1995 (NSW) to protect him. That section was applicable to the proceedings notwithstanding that the rules of evidence generally were inapplicable (ss 73(2) and 73A of the Administrative Decisions Tribunal Act 1997 (NSW)) (now repealed). 3. Mr Joseph did not submit to this Court that the Appeal Panel had erroneously derived direct support from Mr Joseph's silence on the 2007 fraud issue when concluding that the licence was properly refused. Rather, he implicitly accepted that the Appeal Panel had properly limited its regard to Mr Joseph's silence to support its anterior conclusion that the 2007 evidence was unchallenged. 4. The only basis upon which Mr Joseph submitted that the Appeal Panel should have remitted the matter back to the Senior Member was to give Mr Joseph an opportunity to respond to the evidence. As Mr Joseph was in fact given that opportunity prior to and at the Appeal Panel's second hearing, this proposed ground of appeal should be rejected. Proposed Ground (3): The Appeal Panel erred in failing to have regard to evidence of a conversation between the informant police officer and the Police Prosecutor as to the reasons for the withdrawal of the 2007 fraud matter 1. As noted above ([44]), the Appeal Panel stated in its second decision that there was no evidence to support the Commissioner's submission that the fraud charges did not proceed because there was no evidence available to the prosecutor that "Mr Joseph knew that the account had no money in it, because of uncertainty as to whether a Commonwealth [B]ank letter had been sent some months [before] which informed him that his account was out of funds". 2. The Appeal Panel may have overlooked the part of Detective Harris' statement relevant to this issue (see [46] above). This indicated that there was a difference of opinion between Detective Harris and the police prosecutor as to whether Mr Joseph had in fact received bank letters of that type. 3. Nevertheless the Appeal Panel's decision to "simply proceed on the basis that there is no known explanation for the withdrawal of the prosecution" ([43]) did not prejudice Mr Joseph's position because such explanation as was suggested by Detective Harris' statement did not assist Mr Joseph. It is true that the statement shows the police prosecutor did not think that any evidence of Mr Joseph's knowledge was available to tender in the prosecution. However that is of little, if any, consequence in the present proceedings in which the only direct evidence on the issue was Detective Harris' unchallenged evidence that "during the search warrant letters in opened envelopes from the Commonwealth Bank were found telling Mr Joseph to stop using his debit card to purchase goods when there was no money in his account to do so" (see [24] quoted in [46] above). 4. The upshot was that in the present proceedings there was not only evidence of Mr Joseph's involvement in the 2007 events, but also evidence elevating the suspicion of fraud arising from that evidence to proof of fraud, at least on the balance of probabilities. Contrary to Mr Joseph's submission, this justified the Appeal Panel treating the facts relating to these events as proved. There was no reason in principle why the Appeal Panel could not take into account matters indicating criminal conduct on Mr Joseph's part and do so after applying a lesser standard of proof than the criminal standard (Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [32]-[33]). 5. Mr Joseph's senior counsel drew this Court's attention to lists of documents obtained from Mr Joseph on search warrants. These lists do not refer to bank letters. However this Court is in no position to second-guess Detective Harris' unchallenged evidence by reference to documents not put to him in cross-examination. 6. Before this Court, Mr Joseph relied upon the Appeal Panel decision in Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20], which is in the following terms: "20 We make the following short observations. It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the local court proceeding, then care would need to be exercised at the point of any inquiry by the Tribunal that a process of that kind be allowed." 1. When read as a whole, this paragraph does not assist Mr Joseph. Its tenor is consistent with what I have said above, in particular in its affirmation that there is no reason in principle why an administrative decision maker should not take into account evidence of matters that were the subject of criminal charges that did not lead to convictions. The point correctly made by the Appeal Panel in Mercer is that any available material disclosing the reasons why there were no convictions may shed light on the weight to be given to the evidence. 2. In the present case, the hearsay evidence of a police prosecutor's view that he did not have direct evidence sufficient to discharge the criminal onus in relation to one element of the relevant offences did not detract from the substantial weight of the other evidence of the 2007 events. First, the only evidence led before the Tribunal as to whether the relevant offences could be proved (as distinct from the hearsay assertions of the police prosecutor about his belief) was Detective Harris' statement that there was direct evidence of Mr Joseph's knowledge. Secondly, even in the absence of that evidence, the other evidence of the 2007 events was relevant to the Commissioner's decision on Mr Joseph's licence application because it at least raised a strong suspicion that Mr Joseph had been involved in dishonest activities. 3. In these circumstances, and contrary to what the proposed ground of appeal suggests, the Appeal Panel was not obliged to refer to what the police prosecutor said regarding the reasons for withdrawal of the criminal charges against Mr Joseph. That evidence was not of sufficient significance to require the Appeal Panel to refer to it. As this Court recently confirmed, "a tribunal, like a court, is not obliged to refer to all the material before it which may be thought by a party, or even by the reviewing court, to constitute relevant evidence" (Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [66] per Basten JA; McColl and Simpson JJA agreeing). 4. On review or appeal of a decision made under a statute (in this case the Firearms Act), where the statute does not explicitly require consideration of certain evidence (as is the case of the evidence in question here), an assessment must be made of whether the evidence not referred to was of such materiality or criticality that it can be concluded that the relevant statute implicitly obliged the tribunal to consider it (ibid at [67]). The evidence in question here was not of that character. 5. Even if there was an error in the Appeal Panel not referring to the evidence, I do not consider that if the error had not occurred the Appeal Panel's decision "would have been, or might have been, different" (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353; [1990] HCA 33 at [80]; and see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; [1986] HCA 40 at [15]). This conclusion would have been necessary for Mr Joseph to succeed on this ground. 6. Nor can it be said that the Appeal Panel's absence of reference to the evidence rendered its reasons for decision deficient. It will ordinarily be sufficient if by his or her reasons a judicial officer "apprises the parties of the broad outline and constituent facts of the reasoning on which he [or she] has acted", at least where, as here, appeals may only be brought for errors of law (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 per Mahoney JA and see 281-2 per McHugh JA; Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 at [12]; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [47]-[58] per Basten JA; Beazley JA agreeing). The Appeal Panel in the present case more than adequately set forth the reasons for its conclusions. 7. Proposed ground of appeal (3) should accordingly be rejected. The suppressed evidence 1. In proposed ground of appeal (5), Mr Joseph alleged that the Appeal Panel "erred in failing to consider evidence in favour of the Applicant when exercising its discretion, such as [the suppressed evidence]". In argument, Mr Joseph confined this proposed ground to a complaint that the Appeal Panel did not consider the suppressed evidence. 2. The evidence of the witness in question was the subject of a suppression order made by this Court under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the grounds that it was necessary to prevent prejudice to the proper administration of justice and to protect the safety of a person (s 8(1)(a) and (c)). It is therefore not appropriate to describe that evidence in this judgment. The evidence was not referred to by the Appeal Panel but, having considered it carefully, I do not consider it to have been of any significant assistance to Mr Joseph's case 3. For the reasons given in [65] and [68] above, this proposed appeal ground must also be rejected. 4. Moreover there is no basis for an inference that the Appeal Panel overlooked the evidence. Mr Joseph referred to the evidence in his written submissions, as did both parties in their oral submissions. As well, the Senior Member made passing reference to it ([53]). The Appeal Panel's absence of reference to it was consistent with it having formed a view that the evidence did not materially assist Mr Joseph. In light of an order made by the Tribunal precluding the publication of the evidence, the Tribunal's lack of reference to it was also consistent with an inability to refer to its content in the published judgment. ORDERS 1. As I have concluded that none of the proposed grounds would be successful if leave to appeal were granted, the application for leave to appeal should be dismissed with costs. In addition, an order should be made, by consent, extending the time for Mr Joseph to file his Notice of Intention to Appeal to the date upon which it was in fact filed. 2. WARD JA: I agree with Macfarlan JA and with the additional observations of Basten JA. ********** Endnotes 1. Joseph v Commissioner of Police, NSW Police Force [2014] NSWCATAD 46. 2. Commissioner of Police v Joseph [2015] NSWCATAP 9 ("Commissioner of Police (2015)") at [4]. 3. NCAT Act, Sch 1, cl 10(3), chapeau. 4. NCAT Act, Sch 1, cl 10(1)(a). 5. NCAT Act, s 7(2)(a). 6. The decision was an "internally appealable decision": see NCAT Act, s 32(1) and (4). 7. NCAT Act, s 80(2)(b). 8. NCAT Act, s 80(3). 9. The powers of the Appeal Panel were to be found in ss 114 and 115 of the Review Act. 10. Commissioner of Police (2015) at [29]. 11. Commissioner of Police v Joseph [2016] NSWCATAP 124 ("Commissioner of Police (2016)"). 12. NCAT Act, s 83(1). 13. Commissioner of Police (2015) at [56]. 14. Commissioner of Police (2016) at [6]; but see [6] above. 15. Tcpt, CA, 07/02/17, p 3(33). 16. Tcpt, CA, 07/02/17, p 3(38). 17. Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11. 18. Wang at [15]. 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: 06 March 2017