Cseszko v Commissioner of Police, NSW Police Force (No.2) [2017] NSWCATAD 88

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cseszko v Commissioner of Police, NSW Police Force (No.2) [2017] NSWCATAD 88 Hearing dates: On the papers Date of orders: 27 March 2017 Decision date: 27 March 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The decision of the Commissioner of Police to revoke Mr Cseszko's firearms licence is affirmed. Catchwords: FIREARMS – revocation of licence –fit and proper – public interest. Legislation Cited: Firearms Act 1996 Cases Cited: Commissioner of Police, NSW Police Force v Cseszko [2016] NSWCATAP 194 Cseszko v Commissioner of Police, NSW Police Force [2016] NSWCATAD 50 Stiles v Commissioner for Fair Trading & Anor [2017] NSWCATAP 44 Vella v Commissioner of Police [2003] NSWADT 91. Ward v Commissioner of Police [2000] NSWADT 28 Category: Principal judgment Parties: Jason Cseszko (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Solicitors: Adams Partners, Lawyers (Applicant) Henry Davis York (Respondent) File Number(s): 1510559

reasons for decision 1. The Applicant held a Category AB firearms licence under the Firearms Act 1996 ("the Act"). The licence was initially issued in July 2006. The licence was suspended on 28 January 2015 following allegations that he had allowed his seven year old son to fire an air rifle during a trip to visit the Applicant's parents in January 2015. The firearms licence was subsequently revoked on 21 May 2015. 2. In revoking the licence, the Commissioner decided that the Applicant was not a fit and proper person to hold a firearms licence. Whilst the main reason was that the Applicant had allowed his son to fire an air rifle, the Commissioner's delegate also referred to other incidents involving the Applicant and contends that he is not a fit and proper person to hold a firearms licence and that it is not in the public interest for him to do so. 3. The relevant background is set out in my decision in Cseszko v Commissioner of Police, NSW Police Force [2016] NSWCATAD 50 ("the first decision"). In the first decision I ordered: 1. The decision under review is set aside. 2. The decision is made that the Applicants category AB licence is suspended for a period of six months from the date of this decision 1. I expressed the view that the Applicant's actions did not warrant the revocation of his firearms licence however they did warrant some action to be taken in relation to the licence. I considered that the Applicant was lacking in his knowledge of the obligations placed on a licence holder under the Act and that he should undertake some training in regard to those obligations before his licence is returned. 2. The Commissioner successfully appealed that decision. The Appeal Panel's decision is recorded Commissioner of Police, NSW Police Force v Cseszko [2016] NSWCATAP 194. The Appeal Panel ordered: 1. Orders 1 and 2 made on 11 March 2016 are set aside. 2. The matter is remitted to the Tribunal as originally constituted with the following directions: (a) the Tribunal is to re-determine the matter according to law and in accordance with the Appeal Panel's reasons; (b) the matter is to be re-determined without fresh evidence apart from any evidence of events or circumstances which have arisen since the hearing on 1 February 2016. 3. The remitted matter is listed for directions on 16 August 2016 at 10.30 am. 1. The Appeal Panel noted that there were three main grounds for the appeal. "Firstly, that the Tribunal did not have the power to suspend the firearms licence. Second that the Tribunal erred by not applying the test as to whether there was "virtually no risk" to public safety to allow the applicant to retain his firearms licence and third that the Tribunal gave inadequate reasons for its decision as to why the applicant's firearms should not be revoked." 2. In regard to the first ground the Appeal Panel found that the power to suspend a licence as provided for in section 22 of the Act was not available to the Tribunal when reviewing a decision under section 24 of the Act as to whether or not the licence should be revoked. The power to suspend in section 22 was not available to the Tribunal because that power has already been exercised as a first step before making a decision to revoke the licence. 3. The Tribunal's jurisdiction to review the Commissioner's decision to revoke the licence is pursuant to section 75 of the Act and the provisions of the Administrative Decisions Review Act 1997 ("the ADR Act"). The Tribunal is confined to making decisions which were available to the administrator at the time it made the decision under review. 4. The Appeal Panel did not need to address the second ground because of its finding in regard to the third ground. In that regard it stated: While the Tribunal referred to the applicant's fitness and propriety in this paragraph, it made no finding as to whether the applicant is a fit and proper person to hold a licence. We direct on remittal that the Tribunal make such a finding. In addition, as already indicated, the Tribunal has not made a finding as to whether or not it is in the public interest for the applicant to continue to hold a licence and, again, we direct on remittal that the Tribunal do so. 1. The Appeal Panel directed that the matter is to be re-determined without any fresh evidence apart from any evidence of events or circumstances which have arisen since the hearing on 1 February 2016. If anything has occurred since 1 February 2016 which is relevant to the Applicant's fitness and propriety or to the public interest those matters should be before the Tribunal.