Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fistr v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 46 Hearing dates: 5 February 2019 Date of orders: 21 March 2019 Decision date: 21 March 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof G D Walker, Senior Member Decision: (1) Decision under review set aside. (2) A paintball gun permit is to be issued to the applicant. Catchwords: LICENSING – paintball guns – revocation of permit – threats of harm and self-harm – fit and proper person – public interest – expert evidence – weight – duty of tribunal. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2013 (NSW) Cases Cited: AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5; Austin v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 273; Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11; Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254; Briginshaw v Briginshaw (1938) 60 CLR 316; Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42; Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16; Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50; Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89; Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127; Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117; Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206; McDonald v Director-General, Social Security [1984] FCA 57, (1984) 1 FCR 354; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; Ngo v Melbourne City Council [2012] VCAT 1697; Potts v Commissioner of Police, New South Wales Police Force [2010] NSWADT 311; Serong v Dependable Developments Pty Ltd [2009] VCAT 760; State of New South Wales v Taylor [2001] HCA 15; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10; Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110; Wright v Commissioner of Fair Trading [2017] NSWCATAD 98. Category: Principal judgment Parties: Luke N Fistr (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Counsel: R Coffey (Respondent) Solicitors: L Fistr (Self Represented)(Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2018/00333897 Publication restriction: Nil Reasons for decision 1. The applicant Mr Luke N Fistr applied to this tribunal on 31 October 2018 seeking review of a decision of a delegate of the respondent made on 25 September 2018 to confirm the respondent's revocation on 17 April 2018 of the applicant's paintball gun permit No. 409488793. 2. His permit had been issued on 17 May 2017 (to expire on 17 May 2022) but was suspended by the respondent on 16 February 2018 and revoked on 17 April 2018. 3. The reasons given by the notice of revocation were that on 3 February 2018, police were called to his residence in relation to a reported attempt to self-harm by cutting his wrist. The applicant's wife, Mrs Natasha Fistr, had noticed a red mark and a small amount of blood on his left wrist, and he had complained about a particular knife being blunt. Mrs Fistr also informed police that several days before, he had stated that he had zip-tied his wrists to the steering wheel of his car and intended to drive it into the river. When police located him, he provided false names before running away from them and when apprehended was transferred to Dubbo Base Hospital and detained for the purposes of a mental health assessment. 4. The notice of revocation also stated that if a firearm licence holder's mental health raised doubt about the person's ability to exercise continuous and responsible control over firearms, the person could not be authorized to possess and use firearms. 5. An internal review reached the same conclusion for the same reasons, and also because the reviewing officer considered that there was insufficient evidence to support the view that his mental state was satisfactory for the purposes of firearms ownership and because tensions between him and Mrs Fistr over custody of their daughter had previously led him to engage in threatening behaviour and it was not clear that the underlying causes of the tension had been resolved. Applicable legislation 1. Section 30(4) of the Firearms Act 1996 provides that a firearms permit may be revoked "(a) for any reason for which a licence may be suspended or revoked under this Act, or (b) for such other reasons as may be prescribed by the regulations". Clause 21 of the Firearms Regulation 2017 prescribes additional reasons for the revocation of permits, which include "that the Commissioner is satisfied that it is not in the public interest for the permit holder to continue to hold it" (cl 21(1)(a)), and "any reason for which the permit holder would be required to be refused a permit of the same kind" (cl 21(2). 2. Section 24 of the Act sets out the various grounds on which a licence may be revoked, which are similar to those for permits, reflecting the legislation's overall approach and objectives. They include "for any reason for which the licensee would be required to be refused a licence of the same kind" (s 24(2)(a)), "if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence" (s 24(2)(c)) and "for any other reason prescribed by the regulations" (s 24(2)(d)). 3. Section 29 of the Act sets out restrictions on the issue of permits, including the following: (2) Without limiting the generality of subsection (1), a permit 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. 1. The issue in this application is twofold. First, whether the applicant is a fit and proper person to hold a paintball gun permit and, secondly, whether it is contrary to the public interest for the applicant to hold such a permit. Respondent's evidence 1. As the applicant was not legally represented, the respondent presented his evidence first. The first witness was Dr Sanjay Sinha, a consultant psychiatrist who had written a letter containing a professional opinion concerning the applicant, dated 20 March 2018, who he had evaluated on 16 March 2018 (exhibit R1, pp 25-26). In it he said that he understood the applicant was going through a marriage breakup and on two occasions had expressed thoughts of suicide, once when he threatened to drive into the river and the second when he contemplated slashing his wrist. On the second occasion he was taken to hospital and saw a mental health nurse there. 2. He reported that those threats were his way of getting the attention of his ex-wife who was not allowing him access to their daughter. Since those incidents he had talked to different people, his wife was also more mellow and he has ready access to his daughter. He no longer feels that he is under any stress and has been able to let go of his anger towards his wife. He has been working regularly and tends to spend time with friends. He is not on any medication and had no symptoms of depression or anxiety when assessed. Dr Sinha said he did not feel the applicant was at risk of self-harm or harming others. His history suggested relationship issues and some personality traits, but no acute psychiatric illness. Dr Sinha did not feel his having his paintball gun licence would put either his safety or the safety of others at risk. 3. In his evidence in chief at the hearing, Dr Sinha explained that he had been asked by the applicant to supply a letter concerning his mental condition so that he could take part in a competition. It was not a report similar to those he had often prepared at the request of the Firearms Registry. He had based his assessment on his consultation with the applicant and the hospital report produced as a result of his admission. At the hospital he had been assessed by a mental health nurse and a psychiatrist who found that he was not mentally sick, but he was detained overnight in accordance with established protocols. Dr Sinha noted that Mr Fistr had given different versions of the incident relating to the mark on his wrist. 4. Asked what would happen if bad relations with his ex-wife returned, he replied that there was some risk that he would again speak of self-harm. He usually knows not to cross the limits and understands the risks involved. He was quite rational on the day he was evaluated. There was no evidence of mental illness but he does have attention-seeking behaviours when he cannot get his own way, such as when he threatened to burn the house down. In order to get his own way he mostly uses threats but does not actually do anything. He has self-control and has never actually misused a gun or a paintball gun. 5. The witness acknowledged that the letter was not a full risk assessment and that he was unaware whether the applicant was currently medicated or undergoing counselling. Asked whether there would be a risk if he was exposed to further stress, the witness said it was hard to answer that but the applicant had done some "nasty things". If giving an opinion today, he would be more cautious, but at his evaluation the applicant had presented well. 6. Cross-examined by the applicant, Dr Sinha agreed that Mr Fistr had displayed remorse and a sense of humour. There was no evidence of any mental illness, but the applicant could react if he did not get his own way, and he could not guarantee that the applicant would not repeat such conduct in those circumstances. 7. The respondent then called Mrs Natasha Fistr, the applicant's ex-wife, who adopted her statement dated 1 March 2019 (exhibit R3) in which she stated that she works as a part-time primary school teacher at Dubbo Public School. She is the primary carer of her three year-old daughter, Mahalia Fistr, whose father is the applicant. (For convenience I refer to Mrs Fistr as the applicant's ex-wife, as the parties do, although it does not appear that the marriage has yet been dissolved, presumably because the parties have not yet been separated for a year.) 8. Mrs Fistr currently has an access arrangement with the applicant for their daughter for one night each week and alternate weekends. On 20 September 2018, with the assistance of the Dubbo Family Relationship Centre, the parties had agreed on a care arrangement for Mahalia in the form of a "Parenting Plan". That arrangement had been updated on one occasion. 9. Mrs Fistr had commenced a romantic relationship with the applicant in November 2009. At that time he competed in paintball competitions. They were married on 12 April 2014 and Mahalia was born on 10 December 2015. Since the time their daughter was born she did not recall the applicant using his paintball guns. On 11 August 2017, while she was cooking dinner, the applicant came into the kitchen and said words to the effect of, "I'm not happy. I don't know if it's depression, I don't know what it [depression] feels like". On 16 January 2018 the applicant sent her a text message saying, "I have had enough. I don't want to be here anymore". As he did not return home for some hours, she became very worried about his safety. She called his brother Clint and told him what had happened. Clint said something like, "If he does something like this again, call the police". Some time that night the applicant returned home. 10. On 3 February 2018 she left Mahalia in his care while she went to the supermarket. When she arrived home the applicant was out in front of the house and said words to the effect of, "The little green knife is blunt as shit, you need to throw it out". She replied, "What do you mean? It should be fine", as she had used that knife that morning to prepare breakfast. The applicant said to her, "I need you to take Mahalia with you". 11. Later that day she had been planning to attend a workshop and the applicant had agreed to take care of Mahalia during that time. She said, "I don't feel comfortable leaving you alone". At some point during the conversation she noticed that he had a small scratch on his wrist. She then sent a text message to her brother and sister in law, Clint and Danielle Fistr, saying she had intended to go out but did not feel comfortable leaving the applicant alone. A short time later, Clint arrived and parked on the driveway behind the applicant's car. She thought that was to prevent the applicant from driving off. 12. The applicant became agitated and began to a scuffle with Clint, who was trying to prevent the applicant from leaving. During that time the applicant's mother, Lorraine, arrived and the witness saw Lorraine also try to stop the applicant from leaving. His shirt was ripped. Clint called out to her to call the police, which she did. Lorraine had also called the police while the witness was still on the phone to them. The applicant's father also arrived home. Later the police called and said they had taken the applicant to hospital where he would be assessed. She then attended the hospital with Lorraine, Clint and Mahalia. 22 When she saw the applicant he seemed fine, but he said something to the effect that she was the worst person in the world and he appeared to blame her for what had happened. He sent her two text messages which said, "Thank you for f******g very much wen I get back we are doing hope you are happy" [in his own evidence the applicant later said he meant to type 'done', not 'doing', which seems plausible – GW] and "Done I hope you can afford the house you c***". Later that evening he asked to see Mahalia and herself before she retired for the night. At that time he said, "I do not belong here". On 22 June 2018 the applicant left the family home permanently. 1. On 12 August 2018, when returning Mahalia back to the house after she had been taken camping, the applicant said to her words to the effect that at the place the group had been camping there were cows that had eaten fertilizer and then had to be shot. He said, "I made sure Mahalia didn't see me shoot the cows". The witness understands that the applicant's partner, Lana Durant, holds a recreational firearms licence. 2. That evening Mahalia had a major screaming fit and Mrs Fistr sent a text message to the applicant to ask if Mahalia had been screaming at him. He replied by a text saying, "[You're just] trying to make me out like I'm a bad parent". She then telephoned the applicant and asked him to come over and collect a television set he had left behind, adding that if he did not she would put it out the front on the porch. He then said, "If you do that then I will burn down your house". In a subsequent text message concerning access he said, "Say goodbye to your house". Subsequently she asked him, "When you said you were going to burn the house down, was that with Mahalia and me in it?", to which he replied, "Pull your head in". She now only communicates with the applicant by text message. 3. On alternate Fridays she drops Mahalia to the applicant in person at Central Dubbo McDonald's and at that time tries to update him orally with any information about her care. He often attends pickup and drop with his current partner and her children. She has begun taking a support person, either another woman teacher from school or one of the female reserve firefighters, with her at those times. 4. In oral evidence at the hearing Mrs Fistr said the relationship with the applicant was currently not positive, and she would prefer to conduct it by conversations in person, not text messages. He developed a tendency to be agitated or upset about things, but it was not characteristic of him before August 2017. His talk about depression and self-harm arose only after August 2017, not before. At the time of the February 2018 incident she had feared that he would harm himself and did not want him to do so. The mark on his wrist had been there before Clint had arrived and before she had spoken to police. There had been three incidents of potential self-harm, and the threats meant that she could not have a positive relationship with him. 5. With reference to the shooting of the sick cows, she would prefer that Mahalia was not around guns for safety reasons, and if the applicant were to obtain a licence she hoped he would respect her wishes. She could not comment on his current behaviour because she now sees him only once a fortnight. His self-harm ideation was because of the deteriorating relationship, but now there is no relationship except for their co-parenting arrangements. 6. The witness acknowledged that she was giving evidence following a summons obtained by the respondent. She has no objection if the applicant obtains a firearms licence provided that Mahalia is safe and not around. She did not think the applicant would harm any other person. 7. In cross-examination the applicant asked her if they had separated after 11 August 2017. She replied that he had returned several times. They had undertaken marriage counselling as there had been marriage problems over a long period. The parenting plan had resolved the problems over care of their daughter. 8. Referring to her call to the police on 23 August 2018 when she reported the applicant's threat about burning down the house, the witness said she had not feared for her safety but only wanted the matter recorded just in case. She believed that Mahalia was safe. Applicant's evidence 1. At the hearing the applicant adopted his signed statement dated 2 December 2018 (part exhibit A1) in which he said that he had been in a relationship with Natasha for approximately 10 years and married for approximately 4 years. Their daughter Mahalia would be aged 3 on 10 December 2018. He had made a decision to leave the family home and did so in early August 2017. In late August 2017 Natasha had allowed him access to Mahalia for one night, but on one occasion when they were dining at a friend's house, Natasha had arrived at the house, banging on the door and asking to see their daughter and wanting to take her away with her. He had kept the door locked the whole time and said, "No it is my night with her", and there was some disagreement before Natasha left. 2. Natasha was then refusing him access to Mahalia. At that time he was unaware of mediation or of the steps he needed to take to obtain access, so he returned to the family home in early November 2017 to try and maintain the marriage and have access to their daughter. On 2 February 2018 he had said to Natasha, "I have had enough of the relationship and you denying me access to Mahalia, I have thought about tying my wrist to the steering wheel of my car and driving it into the river". Natasha had replied "You need help". He had those thoughts as Natasha was very controlling and the relationship was toxic, which he thought was not healthy for their daughter. He regrets that comment, but he felt trapped between the decision he had to make of leaving the family home and staying in a controlling and toxic relationship. Natasha had been silent and not speaking to him before 3 February 2018. On that afternoon she returned home and he asked her, "Why is the little green knife blunt?". She had said, "The knives aren't blunt, why would you be asking that for?" He then put the knife on his left wrist and pushed it down on his skin before putting the knife back into the sink. There was no blood coming from his wrist and he did not make any comment about committing suicide. 3. Natasha then called his mother, his brother Clint and the police at that time. Clint parked his car behind the applicant's utility in the driveway and asked him what was going on. He said to Clint, "Just leave me alone please". Clint said, "Show me your wrist", which he did, and said "Here, look there are no marks". Clint continued to ask him questions, making him very frustrated as he did not want to talk to anybody and wanted his own space. Clint started grabbing and pushing him, trying to get him not to not walk away, and they broke into a fight. In the course of the fight, his shirt got ripped and Clint had hold of his arms, and his fingernails had scratched him on the left wrist, which started bleeding a small amount. 4. He then went inside to change his shirt, collected his keys, telephone, lighter and cigarettes and left the house. He ran away from the house and when at the top of Linda and Catherine Drive, Dubbo, answered a telephone call from a police officer who asked him where he was. He said "If you give me your word that no other car will come up here, I'll give you my word and I will tell you where I am". They arranged to meet, the applicant disclosing where he was and saying that if he saw another car, he would not be telling them his name or what had happened. 5. Shortly afterwards a police van pulled up next to him and he was asked if he knew Luke, but as it was not the car the officer had said he was in, he replied that he did not. After further exchanges and a flight attempt, he stopped running and 4 police cars arrived on the scene. He said, "Yes, I am Luke and yes, you are looking for me". Police then handcuffed him and he did not resist arrest. The police removed the handcuffs and gave him a drink of water before searching him. He had no intention of harming himself or anyone else, he was just frustrated and felt he needed time to himself. Running from the police was an "erosional" [sic] decision as he was upset after having a fight with his brother, with whom he had always been very close. 6. An ambulance took him to Dubbo Base Hospital where he underwent a mental health assessment, being released the next day, 4 February 2018. On 5 February he called the local medical centre to make an appointment, and received one for 21 February with Dr Jackson, who gave him a referral to see Dr Sinha, who wrote the letter in evidence and stated that he needed no further treatment. On 16 February 2018, police came to the family home and said they would be impounding his firearms and licence. 7. On 12 August 2018, he had the care of their daughter for the day at his mother's house at Ronald Street, Dubbo, where he was living. Natasha arrived early demanding to take Mahalia and they had an argument about his visiting rights with their daughter. He made the comment "Say goodbye to your house, then", as he had left the family home and had no intention of arriving at a settlement, as he would like his daughter to stay in the house she had grown up in. He made the comment out of frustration at not being able to have his time with Mahalia. 8. On 13 August 2018 he had Mahalia in his care from about 6:30 pm until 8:30 pm at his mother's house, when Natasha arrived to collect Mahalia and tried to snatch Mahalia out of his arms. He asked if he could say goodbye to her first and put her in the car, when Natasha said, "No, I will take her and put her in the car". Natasha was still trying to pull Mahalia out of his arms, so he said to Natasha, "Stay out here until you cool down. I'm taking Mahalia inside where it is warm, and she doesn't have to listen to this". 9. His mother had gone outside to speak with Natasha, when he heard Natasha starting to yell at his mother. He took Mahalia outside, put her in the car and said goodbye to her. Natasha said to him, "I don't appreciate you saying you will burn my house down", to which he replied "Pull your head in and stop using Mahalia against me as a pawn or I will take my share of the house". On 24 August 2018, the police telephoned him and said Natasha had been in to the police station. They asked if he wanted to make a statement about what Natasha had told them. He told his side of the story and that nothing had really happened, just a few words exchanged between them. He did not proceed any further. The police told him that Natasha had secretly recorded him and asked if he wished to have her charged. He did not wish to charge her as he was not sure of what effect that would have on their daughter. 10. He regretted some decisions and things he had said in the past and had learned from his mistakes. He would never put himself or the public safety at risk of harm. He had never been charged with a criminal offence and did not see himself as a risk to public safety. He wished to retain his paintball gun permit and paintball guns so he could continue in the sport he had been devoted to for the past 11 years. 11. Asked in cross-examination about the six incidents outlined in Natasha's statement (exhibit R3), he replied that they were correct. His comment on 16 January 2018 that "I have had enough. I don't want to be here anymore" was not, however, about suicide but about leaving the house. As regards the 3 February 2018 incident with the green knife, he explained that he had tried to use it to cut food. He had pushed it against his wrist to show how blunt it was, as that would be a dangerous act if the knife had been sharp. 12. Referring to his confrontation with Clint, he said he had talked with him about everything that was going on, especially about access to Mahalia. At that time he was in a toxic relationship and wanted to extract himself and obtain custody rights. His relationship with Natasha was now "okay" but he does not speak with her now, communicating instead by text. 13. Annexures 1 to 3 of Natasha's statement (exhibit R3) were texts that he had sent to her. He had been in a toxic relation but there was no mental health issue. His thinking was cloudy and confused, not angry or threatening but disappointed. He had been thinking about access to Mahalia and self-harm. He had talked to his family and friends about his self-harm thoughts, but there was no follow-through. His text on 4 February that "I am ok just hobbling around thank you again" was sent when he was at the hospital having treatment for blisters on his feet. His comment "Say goodbye to your house" was in the context of their disagreement over access. He was planning to walk out and take legal action to obtain his half of the house. He was not making a threat, but the statement could be taken in many ways. He had not threatened to burn the house down, she had said that, but he did say "Pull your head in". He was not going to do anything. 14. He had not sought any further medical help or professional assistance after his evaluation by Dr Sinha as they had said he was OK and had no mental problem, though he acknowledged that his mother and Clint had been concerned about his mental health when he was at the hospital. Any family would have felt some concern, but he did not believe there was any basis for it. Asked about Dr Sinha's revising his opinion, he said he could see where the comment was coming from but there was no likelihood of a return of self-harm or similar ideas because he was now out of a toxic relationship. 15. Asked by Mr Coffey if there was any guarantee that there was no risk of repetition, he agreed that there was not, but said he was under no stresses now. His relationship with Natasha was not good, but it was not stressful and he was happy with the parenting plan. He did not agree that if there was some difference between the parties over parenting, that there was no safeguard against his problems returning, saying that everyone has some stresses. 16. His partner has a firearms licence, but he has not done any shooting himself as he has no licence. It was his partner who had to put down the sick cattle. 17. By way of re-examination, the applicant said he did leave the house in August 2017 because he was not receiving access, but sought to move back in and had arranged counselling. It had not worked, however. When he had said "You'll never see me again", he had meant that he wanted time to himself. The fact that he was helping at his partner's day care centre showed that he was no danger to himself or others. 18. The applicant tendered a statement by Lana Durant (part exhibit A1) in which Ms Durant said she had known the applicant for approximately 2 years and had been in a relationship together with him for 4 months. She runs her own business from home in family day-care. Luke is so interactive and joyful with the children that when he is at work, the children always ask, "Where is Luke?" and they get very excited when he arrives home. She has three young children of her own with whom Luke has a very strong bond and she does not fear for her safety or that of her children around Luke. 19. Concerning the incident on 3 February 2018, she knows that the applicant sincerely regrets his thoughts of self-harm and believes it was very out of character for him. She is also aware of the incident and the false allegations that his ex-wife reported to police on 21 August 2018 that arose from her denying him access to his daughter. He had walked away from everything, giving his ex-wife the house so his daughter didn't go without and still had a roof over her head with no added stress. Luke's comment "Say goodbye to your house" was out of frustration from being denied access to his daughter and meant that he was taking his share of what they owned together. 20. The applicant is very passionate about his paintball sport. He had made a decision before 3 February 2018 to go back and try to fix his marriage so as to be there for his daughter, but the relationship was too toxic and he felt he had no other choice, as he was receiving no support from anyone and things were made difficult when he wanted contact with his daughter. 21. She had supported Luke to help him go down the right track in having contact with his daughter through the Interrelate Dubbo mediation program, where he now has regular contact with his daughter as set out in a parenting plan. He is much happier with the parenting plan in place, as there is no more controlling or fighting any more over the daughter. She witnesses every pick-up and drop off, where Natasha has verbally abused her, and Luke did not react. She also witnesses every telephone call with Luke between him and his daughter, where the mother makes it hard for him to speak to Mahalia. Luke has learned not to react when the mother is "saying stuff" to him over the phone or when picking up and dropping off. Luke puts everything that is said to her through text. 22. The applicant is an outstanding, kind, loving person who, she believes, would never put anyone or the public at risk of harm. He is a very loving, caring father, not only to his own daughter but to her three children as well. She has supported him through his tough times and will continue to support him in anything he needs to do to get his paintball licence back. She is very proud of how far he has come and learned to not react to situations. 23. In oral evidence in chief at the hearing, Ms Durant said that when she met the applicant, he was calm and fun, happy and outgoing. The daycare children see him as a role model – he builds things, dances, sings and teaches them manners. They love his paintball movies and he is no threat to them. He has never been unable to cope with stress and coped with the marriage breakup well. She had never known him to make any suicidal comments, and if he did so, he would reach out and she would help him. He has learned to express himself. 24. In cross-examination Ms Durant said the applicant could not now be compared with the situation when the incidents occurred. They talked about it a great deal. He was not under any medication or psychiatric treatment, and relied on her and his family. Her children are aged 10, 4 and 3 and she takes them shooting, as she grew up on a farm and has no problem with it. 25. If the applicant needed help, they would seek help, but there was no need for it and it is expensive. She noted that her son aged 10 had been on medication, having had a traumatic life. The applicant had got him off medication, and he was calmer, had more friends and was doing better at school. Respondent's submissions 1. The respondent relied on the written submissions filed on 18 January 2019 which, after outlining the legislative structure and the authorities, focused on the incidents on 3 February 2018 and 12 August 2018, which he categorized as threats of self-harm by the applicant and threats against his ex-wife. As regards the former incident, he pointed to the police report of incident E65243010 (part exhibit R1), which described the events, including his argument with Clint followed by his "decamping on foot". Police began to search for him as the extent of his injuries had not yet been determined and it was not known whether he still had a knife on him. Police located the applicant, who had provided them with false names before running from them. They apprehended him and he was "extremely non-compliant". He was placed in handcuffs until it was ascertained that he was not carrying a knife and would not attempt to escape. He was detained for a mental health assessment and conveyed to Dubbo Base Hospital. 2. There he had spoken to a number of hospital staff about the incidents, giving varying accounts. He told Lesley Dobson RN about driving to the riverbank on 10 January 2018 and contacting his brother, telling him he had used plastic ties to attach his hands to the steering wheel and was going to drive into the river. As regards the 3 February incident, he said that Natasha had noticed the red marks on his wrist, and he had initially said they were from the scuffle with police. Later, however, he said they were caused by the fight with his brother. Nurse Dobson recorded that neither explanation appeared consistent. She also recorded that the applicant became increasingly belligerent and uncooperative once he was informed of his admission for safety concerns. He demanded that a lawyer be called and wanted to sign himself out (exhibit R2, tab B). 3. The report also noted that Natasha, Clint and Lorraine all expressed concern about his mental state and safety and both Natasha and Lorraine became tearful when discussing their concerns. At that time Natasha was reluctant to take the applicant home and stated she was afraid that if she left her daughter with him, she might come home to find that her daughter had come across Luke dead after killing himself and being covered in blood (ibid.) 4. He told Dr Anand Pawar about the incident by the river three weeks previously and said he "realized that it was not a good idea to hurt himself and that it would be a 'coward's way out' and 'selfish'". He denied self-harm in relation to the wrist scratch and struck Dr Pawar as trying to convince him of the fact that he would not hurt himself, and that he was "Trying too hard [at] this". Dr Pawar noted multiple discrepancies in the history and collateral history and expressed concern that the patient was not safe to himself. Dr Robert Thomson concluded, however, that the applicant had now demonstrated good protective factors and was willing to have ongoing counselling. His family wanted him to be discharged and Dr Thompson authorized it. 5. Turning to the 12 August he 2018 incident, the respondent noted that on 21 August 2018 Natasha Fistr had told police that on 12 August she and the applicant had argued and that during the argument he had said, "I will burn your house down". She said that she did not fear that the applicant would carry out the threat, but was worried about his mental health. She said that on 20 August they had a further argument, which she secretly recorded, during which she had said "I don't appreciate you saying you will burn the house down". The applicant had replied, "Pull your head in". Mrs Fistr had told police she did not want any action taken, but wanted the incident documented in case the applicant followed through. At that stage police held no fears and noted that they needed to make contact with the applicant. 6. Spoken to by police on 24 August, he said he had left the house because he was separating from his wife and denied saying he would burn the house down, claiming that he had in fact said "Say goodbye to your house". It was meant as a reference to taking Natasha to court to obtain his share of the family home if she continued to deny him access to their daughter (event E68869171, part exhibit R1). 7. The respondent submitted that in the last 12 months, the applicant had experienced at least two instances of threatened or contemplated self-harm and had provided conflicting accounts of them. The tribunal should place limited weight on Dr Sinha's report stating that the applicant was not at risk of self-harm or of harming others, because there was no detail in his report or his notes of his having administered any formal testing or assessments. The letter appeared to be based solely on the applicant's self-report. Further, since the incidents leading to his being detained at Dubbo Base Hospital overnight, he had been involved in an incident in which he was alleged to have threatened to burn down the house of his ex-wife. He had claimed that the difficulties leading to the relevant incidents arose from the breakdown of his relationship with his ex-wife. 8. There was little or no independent evidence of either the issues with Mrs Fistr being resolved, or the applicant's own mental state being improved. Notably, there was no evidence from his general practitioner or from his ex-wife [subsequently, at the hearing, Natasha Fistr did give evidence – G.W.]. The sole reference was from Lana Durant, which again was based on self-report. The parenting plan filed by the applicant was unsigned and in any event shed no light on the state of the relationship between the applicant and his ex-wife. The respondent contended that on the available evidence the tribunal could not be satisfied that the applicant posed almost no risk to the safety of the general public or himself were he to be permitted to regain his firearms permit. Revocation was appropriate on the grounds in cl 21(2)(a) of the regulation and s 29 of the Firearms Act. 9. In oral submissions at the hearing, the respondent added that concern for public safety includes any risk to the applicant's own safety. There was no evidence that if other stressors were to occur, there would be no risk. He says that his relationship with his ex-wife is now satisfactory, but admits that he hangs up the telephone if she calls. There was also the threat in August 2018. The context was domestic friction involving intimidating his ex-wife, which would affect the child. He does not accept the evidence about the green knife and his tying of his hands. 10. Dr Sinha's letter merited little weight as it contained no description of how he had examined the applicant and he had indicated that he had revised his opinion. No steps had been taken to seek other professional assistance. He had said that Dr Sinha had told him that no further treatment was required, but that assertion was not put to Dr Sinha. The issue was not whether it would be possible for him to harm himself or others using a paintball marker, but the potential risk to public safety, especially if similar circumstances returned. Consideration 1. Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77. 2. The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357. 3. Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless 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. Section 11(4)(c) also provides that 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 the applicant's intemperate habits or being of unsound mind. Section 30(4) contains the power to revoke permits. 4. The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. 5. This application concerns a paintball gun permit. Although in everyday parlance the words "licence" and "permit" are treated as synonyms, the Firearms Act treats them as separate categories that are subject to different rules. Section 28(g) of the Act confers a power on the Commissioner to issue permits for specified purposes, and cl 64 creates the class of paintball gun permit. While a paintball gun (also called a "marker") might seem not to be literally a firearm, cl 3 of the regulation defines it as an airgun, while the definition of "firearm" in s 3 of the Act includes airguns, which are defined in s 4. The Legislature has now enacted legislation specifically regulating paintball guns, the Paintball Act 2018, but as it has not yet come into operation, the present case is governed by the Firearms Act. 6. In the revocation notice dated 17 April 2018 addressed to the applicant, the Commissioner's delegate states that "I have determined to revoke your Category AB firearms licence" (exhibit R1, p 22). That may seem slightly confusing, as the applicant has never held a category AB licence, or any other kind of firearms licence, but was the holder of a permit for some 11 years. The internal review, however, treats the revocation as dealing with a permit, which presumably cures any defect in the original notice. Fit and proper person 1. As was noted above, the respondent's case rests on the grounds that the applicant is not a fit and proper person to hold a permit and that it is not in the public interest for him to do so. As regards the former, cl 21 (2) provides that a permit may be revoked for any reason for which the permit holder would be required to be refused a permit of the same kind. A permit must be refused unless 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 the peace: s 29(1). A permit must also be refused if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of, relevantly, "(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or (c) the applicant's… being of unsound mind": s 29(2). 2. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. 3. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11, 65; (1990) 170 CLR 321, 380, Toohey and Gaudron JJ explained that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30]. In the context of the Firearms Act, fitness and propriety "must be considered in the context of at all times ensuring public safety": Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22]. 2. The respondent's case relies chiefly on two incidents, with associated aspects. The first is the threat of self-harm on 3 February 2018 when his then wife Natasha Fistr noticed a small mark on his left wrist that was bleeding slightly. She added that a couple of days beforehand, the applicant had told her that he had zip-tied his wrists to the steering wheel of his car and was planning to drive it into the river. After noticing the injury to the applicant's wrist, Mrs Fistr telephoned his brother Clint, who came to the address. After a discussion or argument, there was a scuffle between them and the applicant departed. 3. Police were called and the applicant initially provided a false name and ran away from the police. When apprehended he became unruly and was taken to hospital for assessment. 4. The applicant initially admitted the incident of threatening to drive his car into the river, including to Mrs Natasha Fistr, Nurse Dobson and Dr Sinha, but later denied it, including to Dr Thomson. But at the hearing he said that Natasha's account of the six incidents described in her statement was correct. He had told Dr Sinha that he was having thoughts of suicide on that occasion in order to get the attention of his ex-wife who was not allowing him access to their daughter and was creating problems for him. 5. Previously, on 20 August 2017 he had told Natasha that he was not happy and possibly depressed. On 16 January 2018 he had told her that he no longer wanted to be here, but his explanation for that was that he wanted to leave the house. The preponderance of the evidence shows that the incident by the river (that is, his claim that he had tied his wrists and intended to drive into the river, not that he actually zip-tied his wrists) did happen and that it was motivated by thoughts of suicide, probably stemming from stresses over his marriage and access to his daughter, which he decided not to act on because he thought to do so would be cowardly and his family needed him. 6. In relation to the mark on his wrist, he admitted that he had contemplated slashing his wrist, again to get the attention of his ex-wife, but then decided not to do it. But he told Nurse Dobson that the mark was from the scuffle with police when he was arrested, and later said it was caused by the fight with his brother. He told Dr Pawar that he had not intended self-harm on that occasion, but the doctor thought he was "answering questions trying to convince me of the fact he won't hurt himself. Trying too hard [in] this". He said in his evidence that he had pressed the knife to his wrist to show his wife that it was blunt, as she had not believed him when he said so. In view of the conflicting accounts he has given, his account cannot be accepted. The evidence shows that he did attempt self-harm with the knife on that occasion. 7. Prima facie, therefore, the evidence shows an attempt to commit an act of self-harm within s 29(2). In this context attempts at suicide or self-harm are not conclusive, however. As Hennessy DP pointed out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5, [22], "Not every suicide attempt will justify the revocation of the person's firearms licence. The Tribunal must assess the likelihood that [the applicant] will attempt suicide or self-harm again and, if that happens, the likelihood that a firearm will be used. There is no suggestion that [the applicant] would attempt to harm others". 8. Her Honour concluded that the applicant's previous attempt did not give rise to reasonable cause to believe that the applicant would not personally exercise continuous and responsible control over firearms. The test, in context, was an objective one (State of New South Wales v Taylor [2001] HCA 15, [10]), her Honour said, setting aside the revocation of the applicant's license. 9. In this case it did not really seem to be in dispute that the applicant's self-destructive thoughts stemmed from stresses that he felt as a result of marital difficulties, and in particular his then wife's objections to his having access to their daughter after his initial departure from the matrimonial home in August 2017, following which he made several attempts to resume cohabitation and undertook marriage counselling, before the final separation in August 2018. His ex-wife said that he displayed no signs of such ideation before August 2017 and that it was not characteristic of him. She did not think he would harm anyone. 10. She also willingly entered into a joint parenting agreement with him and indicated that she had no concerns about their daughter when she was with them. She said the parenting agreement had resolved the custody issue between them. Ms Durant gave a very positive description of his present state of mind, which she also attributed in part to his no longer being in what he repeatedly called a "toxic" relationship. He had a positive outlook, good and constructive relations with her three children and was highly popular as an adjunct carer at her day-care centre. 11. The fact that his ex-wife and his current partner have no concerns about his being with their own children says a good deal about his present conduct and state of mind. There could scarcely be a more exigent judge of a man's behaviour and outlook than a mother considering entrusting her own young children to his care. There is, in addition, Dr Sinha's letter of 20 March 2018 following his evaluation of the applicant on 16 March 2018. The respondent submitted that the letter should be given little or no weight because it does not comply with the forensic standards for expert opinion evidence. The requirements for expert reports set out in the tribunal's procedural direction on expert evidence are an example of such standards. 12. Indeed, in Potts v Commissioner of Police, New South Wales Police Force (on which the internal review relied), the tribunal's predecessor, the Administrative Decisions Tribunal, declined to give any weight at all to a psychiatric report that did not meet expert report criteria ([2010] NSWADT 311, [48], [50] – [51]). In the circumstances of the present case, however, that approach seems rather too absolutist. Dr Sinha's letter is a relatively recent, considered opinion by a consulting psychiatrist who personally evaluated the applicant over a period of approximately 45 minutes, a fairly standard length for a routine psychiatric examination. At the hearing he indicated that at the time of writing the opinion he had been unaware of the threat relating to the house, and said that if he were writing it today he would be "more cautious" in light of that knowledge. He added, however, that the applicant presented well at their meeting and, more importantly, did not say that he would now change his overall conclusion. 13. Giving such material no weight, or no significant weight, could in any event run athwart the tribunal's constating legislation. Speaking of expert evidence that failed to conform with the relevant practice note, the Victorian tribunal has observed that the note "cannot cut down the statutory authority" by which the tribunal may inform itself as it sees fit under s 98(1)(c) of the VCAT Act : Serong v Dependable Developments Pty Ltd [2009] VCAT 760, [106]. In Ngo v Melbourne City Council [2012] VCAT 1697, [8], the tribunal admitted expert evidence despite non-compliance with aspects of the relevant practice note, holding that the deficiencies could be remedied by cross-examination and that it would have been contrary to ss 97, 98(1) and 98(1)(d) of the VCAT Act to refuse to admit the evidence. The equivalent New South Wales provisions are s 38(2) ("may inquire into and inform itself on any matter in such manner as it thinks fit") and s 38(4) (the tribunal to act according to the "substantial merits of the case without regard to technicalities or legal forms") of the CAT Act and s 63(1) of the ADR Act (tribunal to act having regard to "any relevant factual material"). I therefore give Dr Sinha's letter significant weight, although less than if it were a report complying with expert report requirements. 14. The other factor to be considered in relation to the risk of future self-harm, Hennessy DP said in AML, is whether, if self-harm were again to be attempted, it was likely that a firearm would be used. In this case, the Firearms Act permit in issue is for a paintball gun. There is no evidence before the tribunal as to whether would be possible to cause death or self-harm by using a paintball marker. The applicant in his submissions said that there had never been a death caused by a paintball gun, but there was no evidence to support that assertion either. It may be significant, however, that when the applicant was experiencing suicidal ideation in January – February 2018, he apparently did not consider using a paintball gun for the purpose of harming himself. Perhaps the most that can be said is that if the applicant were to turn a paintball marker on himself, the risk of death or self-harm would probably not be greatly increased. 15. I therefore conclude that there is virtually no risk of the applicant's using a firearm for the purposes of self-harm in the future. Aged 30, he is a construction worker in regular employment. It is not disputed that he has never been charged with any criminal offence and has no history of violence. There is no suggestion that he has ever misused a firearm or a paintball gun or infringed firearms laws. Despite having been seen by several mental health professionals, he has never been diagnosed with a mental disorder. 16. At the time of the incidents in question, he was in the throes of a bitter marriage breakup in which he was at odds with his then wife over child custody and his perceptions that she was being controlling. It is well known that in the course of an acrimonious marriage breakup, many people will say and do extreme things that are out of character for them and that they are unlikely to repeat in more normal circumstances. 17. He has now removed himself from a relationship that he considered toxic. The dispute over custody of their daughter appears to have been resolved through the parenting agreement which, although unsigned, is being performed by both parties. He says his relationship with Natasha is now satisfactory, although he prefers to communicate by text rather than viva voce. Natasha does not consider the relationship to be good, as she would prefer to communicate with him in person rather than by text. But she thinks the custody dispute is now resolved, does not believe he would ever harm anyone and expressed no misgivings about sharing child custody with him. 18. He is now in what appears to be a stable and supportive relationship with Ms Durant and has a positive rapport with her three children. He actively helps her at her day-care centre when he returns from work and is popular with the children, who regard him as a role model. Mr Coffey raised the possibility that if disputes over custody were to arise in the future, he might again be subjected to stresses of the kind that triggered him before. Ms Durant said that if that were to happen, he would reach out to her, as he has now learned to express himself, and she would be able to help him. While one can never make infallible predictions about how people will behave in the future, on all the evidence I find that there is virtually no risk that, if his paintball gun permit is restored, he would commit or attempt any act of self-harm or otherwise endanger public safety. 19. The other incident relied on by the respondent as showing that the applicant is not a fit and proper person to hold the permit arose on 12 August 2018. On 21 August, Mrs Natasha Fistr telephoned police to report threats made by the applicant. She said that on 12 August 2018, she and the applicant had argued and that during the argument he had said, "I will burn your house down". She said she did not fear that the applicant would carry out the threat, but was worried about his mental health. She said that on 20 August they had a further argument which she secretly audio recorded. During the argument she said, "I don't appreciate you saying you will burn the house down", and perhaps also "When you said you would burn the house down, was that with Mahalia and me in it?". The applicant had replied, "Pull your head in". 20. When police spoke with the applicant on 24 August 2018, he said that he had left the house as he was separating from his wife. He denied saying that he would burn the house down, claiming that he had in fact said, "Say goodbye to your house", meaning that he would take legal proceedings against Natasha in order to obtain his share of the matrimonial home if she continued to deny him access to their daughter. He admitted telling her to pull her head in. 21. While he may indeed have said, "So goodbye to your house", in view of the way he has changed his story in the course of this overall controversy, I consider Mrs Fistr's version of the events to be the more reliable. I therefore find that he did threaten to burn the house down. At the same time, however, I consider that the circumstances referred to in relation to the wrist marks incident also apply here. 22. Thus the threat was made at a time when the applicant was suffering acute stress as a result of the marriage breakdown, and especially in relation to his being denied access to his young daughter, to whom he is obviously devoted. I accept his evidence that he is content to walk away from the house so that his daughter will have the opportunity to grow up in her original home. Now that the spouses have separated and, on the evidence of Mrs Fistr, the applicant and Ms Durant, the dispute over custody of Mahalia has been resolved by the parenting agreement, I see no realistic possibility of such conduct being repeated. I therefore find that the applicant is a fit and proper person to possess and use a paintball gun. Public interest 1. Clause 21(1)(a) of the regulation provides that the Commissioner may revoke a permit if the Commissioner considers that the person's continued holding of the permit would be contrary to the public interest. The "public interest" allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16. 2. The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his permit is subordinate to the public interest in ensuring public safety. In an often-quoted passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would never pose any risk to public safety. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206, [130]. 3. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML in 2013 that that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. "The 'virtually no risk' comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]). 4. Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] – [66] 66]. 5. Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74]. 6. On the overriding issue of public safety, much of the evidence on the fitness and propriety point is relevant here also. It includes the facts that he has never been charged with any criminal offence, has no history of violence (apart from the minor scuffle with his brother), has never committed any breach of the Firearms Act or Regulation and has never been known to misuse a firearm or a paintball gun. After losing his permit, he made no attempt to use a paintball gun without legal authority. 7. Dr Sinha observed that he had shown remorse over his threatening remarks. His ex-wife said he would never harm anyone and that she has no objection to his recovering his permit. She thought his self-harm ideation resulted from their deteriorating relationship, but the parenting agreement had resolved the custody problems. She had not feared for her safety when he had talked of burning the house down as she at no time thought he would carry out the threat. Ms Durant testified that he regrets his talk of self-harm and has learned not to react to provocations. She has never known him to make suicidal comments, and if she did she believes he would now reach out to her and she would be able to help. 8. The second part of the test that Hennessy DP set out in AML was the likelihood that, if self-harm were again attempted, a firearm would be used. As I have said above, it is significant in that regard that during the period when the applicant was experiencing suicidal ideation, it did not occur to him to use a paintball marker to end it all. Nor was there any evidence before the tribunal to indicate that a paintball gun could be used to cause death. The Appeal Panel declared in Commissioner of Police, New South Wales Police Force v Lee [2016] NSWCATAP 234, [98] that the different degrees of dangerousness of various firearm types was a relevant consideration in relation to the public interest: There is no distinction in the legislation between firearms used for paintball and other firearms. But the type of firearms involved in an infringement and its potential to cause injury or death, is not an irrelevant consideration when exercising the public interest discretion. The seriousness of any breach and the actual or potential harm caused is a relevant factor. The Tribunal's reference to 'actual' as opposed to 'deemed' firearms was merely a way of saying that some firearms are inherently more dangerous than others and the risk to public safety of their misuse will be greater. 1. On all the evidence, I therefore conclude that the applicant's possession and use of paintball guns would entail virtually no risk to public safety. But although safety is the overriding consideration in this context, it is not the only one (Lee v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 254, [199]: But the prevention of actual instances of dangerous conduct is not the only object of the Act. As s 3(1)(b) makes clear, it also seeks to improve public safety by imposing controls on firearm possession and promoting their safe storage. Other explicit objects include s 3(2)(b), "to establish an integrated licensing and registration scheme for all firearms" and s 3(2)(d), "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms". The public interest requires that all licensees be aware of, and comply with, the legislative requirements: Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30. The public needs to be able to feel confident that those who are granted a firearms licence will comply with the legislative requirements: Morris v Commissioner of Police, New South Wales Police Service [2002] NSWADT 223. 1. The Appeal Panel in Lee expressed agreement with that proposition (at [100]). But unlike the applicant in Lee, Mr Fistr has never infringed any provision of the firearms legislative scheme. In those circumstances it seems most unlikely that restoring his paintball permit would cause the public to lose confidence in the licensing system. 2. Mr Fistr is keen to recover is paintball permit as he greatly hopes to be able to participate in paintball competitions once again. He says that he has kept himself physically fit so that he will be in proper condition for the sport and that his team-mates wish him to rejoin them. Private interests receive no weight in the consideration of public interest or fitness and propriety, however: Austin v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 273, [72] – [73]. But in Wright v Commissioner of Fair Trading and Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 98, [121], [127], Scahill SM pointed out that matters affecting an individual can have a wider public interest relevance. The senior member accepted that an applicant's working as a tattooist could be a significant aspect of his ongoing rehabilitation. 3. In the present case the applicant does not require rehabilitation in that sense, as he has never been charged with a criminal offence, but anything that could help to guard against any repetition of that conduct could be viewed as positive. His absorption in a sport could help to forestall any renewed tendency to excessive introspection. That possibility was not, however, put to Dr Sinha or otherwise canvassed at the hearing. I therefore give it minimal weight. 4. In all the circumstances I find that it would not be contrary to the public interest for the applicant to hold a paintball permit. As I have already found that the applicant is a fit and proper person to hold such a permit, the decision under review must be set aside. Order 1. Decision under review set aside. 2. A paintball gun permit is to be issued to the applicant. ********** 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: 21 March 2019