Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Farrugia v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 208 Hearing dates: 18 September 2019 Date of orders: 08 October 2019 Decision date: 08 October 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof G D Walker, Senior Member Decision: Decision under review affirmed. Catchwords: LICENSING – firearms - revocation – supplying false or misleading information – traffic record – fit and proper person – public interest – costs - principles. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Firearms Act 1996 Cases Cited: AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5; Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 94 ALR 11, (1990) 170 CLR 321; Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254; Bladen v Commissioner of Police, New South Wales Police Force [2013] NSWCATAD 240; Briginshaw v Briginshaw (1930) CLR 316; Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42; Constantin v Commissioner of Police, New South Wales Police Service [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 16; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Hoffman v Commissioner of Police, New South Wales Police Service [2017] NSWCATAP 206; 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; Keegan James v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145; Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97; McDonald v Director-General of Social Security (1984) FCA 57, (1984) 1 FCR 354; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; Re Aporo and Minister for Immigration and Citizenship [2008] AATA 69; Re Metera and Minister for immigration and Citizenship [2008] AATA 668; Scott-Brydges v Lismore City Council [2018] NSWCATAD 265; Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWADTAD 184; Sterjovski v Director-General, Department of Transport [2000] 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. Category: Principal judgment Parties: G Farrugia (Applicant) Commissioner of Police (Respondent) Representation: Solicitors: Hartmann & Associates (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2019/00200986 Reasons for decision 1. The applicant Mr Gerard Farrugia applied to this tribunal on 27 June 2018 for review of a decision by the Commissioner of Police on 28 May 2019, following an internal review, to cancel his category ABH firearms licence. 2. The applicant is aged 43 and has never been convicted of any non-traffic offence, nor has he ever been charged with a firearms offence. He was first issued with a category AB firearms licence on 11 July 2015, to expire on 11 July 2020. Category H was appended to his licence on 25 October 2017. The respondent maintained that numerous reports had been made to the police by the applicant's ex-wife alleging domestic violence-related threats and that he had been subject to two apprehended violence orders that had subsequently been revoked. 3. He had made statements on a number of occasions in applications to the Firearms Registry that were false or misleading in a material particular, that his repeated disregard of laws and regulations aimed at ensuring public safety shown by his accumulation of at least 46 traffic offences indicated a disregard for a regulatory scheme aimed at ensuring public safety and that he was not a fit and proper person to hold a firearms licence, nor was it in the public interest for him to do so. Applicable legislation 1. Section 24(2)(b)(i) provides that a licence may be revoked if the licensee supplied information that was to the licensee's knowledge false or misleading in a material particular in connexion with the application for the licence. 2. Section 24(2)(c) provides that a licence may be revoked if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence. 3. Section 24(2)(d) enables the revocation of a licence for any other reason prescribed by the regulations. Clause 20 of the Regulation provides that the Commissioner may revoke a licence if satisfied that it is not in the public interest for the licensee to continue to hold it. 4. The issue in this case is thus whether the applicant knowingly provided false or misleading information in connexion with his licence application, whether he is still a fit and proper person to hold a licence and whether it is in the public interest for him to do so. Applicant's evidence Mr Gerard Farrugia (applicant) 1. The applicant had not filed a witness statement as directed but gave oral evidence at the hearing. In his brief evidence in chief he said that he wanted a licence in order to shoot professionally, by which she he meant competitively. He wanted to train his son and had held a licence for five or six years with no issues. 2. In cross-examination he said that he had changed his name to Jeremy Said 20 years ago, taking his mother's maiden name, but had changed back as his mother had disapproved. He agreed that in his application set out in exhibit R1, pp 114-115 failed to disclose his other name, but said that it was 20 years ago. Similarly with his applications in 2012 and 2015 and several others. He had voluntarily supplied the correct information, however, as he had produced his birth certificate to the Registry. Asked about a letter dated 4 December 2014 in which his then solicitor had said that he was "a professional shooter and he makes a living from shooting on farmers properties", he had agreed that he did not earn any money from professional shooting but in 2013 and 2014 he did have a contract to do professional shooting, but it had not proceeded. 3. He agreed that he had also failed to state his other name in other applications, but said it should not be necessary to do so after 10 years. He had given the correct information in his birth certificate. In his letter of 25 June 2014 seeking permission to import ammunition, he had stated that he wanted it for personal use only as he was a professional shooter. He had admitted that he was not doing professional shooting as his contracts had not proceeded, but said he was being coached for the Olympics by Susie Balogh and he had shot competitively for New South Wales. He did not have the necessary dealer's licence to resell ammunition to the club, but said that was to be the next step. 4. He was then asked about an application to acquire a firearm dated 4 July 2014 in which he had incorrectly ticked the box stating that he was a collector (exhibit R3, p 14), as he did by ticking the box marked "primary producer" in his February 2016 application. In each case he said that it must have been a mistake. Ms Kyrie-Anne Merzi (formerly Nash) 1. This witness provided a reference dated 15 August 2018 (part exhibit A1) in which she stated that she had known and worked for the applicant for almost 6 years now as his office manager, five days a week and eight hours a day. She understood that he was going through a lot at the moment, with running the business, a divorce and not having seen both of his children for over a year. He always managed to keep his private life and work life separate, coming to work his bubbly self and always with a smile. He never raises his voice to her or any of the others or on any telephone calls. He is a very likeable person with a lot of friends, he is always easy to approach and always happy to help others when he can. 2. He allows her to bring her children to work and has always made time to have a chat, or sit and play with their toys and read books with them, even when he has a busy schedule and a lot going on. In all the time she has known him he has never shown any signs of aggression, irritability or anything in that sense, and is a pleasure to be around. 3. In cross-examination the witness said she knew something about his AVOs. She was also aware of his traffic record; there had been something approximately two months ago. Asked if she knew why his firearms licence had been revoked, Mrs Merzi replied that his ex-wife wanted to hurt him and put a stop to his seeing the children. She had seen some of his paperwork. She had also worked with him at Platinum Lubricants, which had merged with Blue Nox about two years ago. Other references 1. The applicant also submitted other references (exhibit A1), including one from his lawyer, Ms Monika Lama dated 20 August 2019, one from Ms Julia Khouri dated 19 August 2019, one from Ms Louise Blunderfield of the same date and one from Ms Renae Lea Walsh of 16 August 2019. Their contents are outlined below. He also submitted a certificate of completion of a traffic offender program dated 9 August 2019. Applicant's submissions 1. On behalf of the applicant, Mr Kable said the applicant had held a licence for years and had passed storage inspections. The claims in the internal review and the COPS event reports were purely allegations. The report dated 11 March 2014 about text messages sent to a victim had no link with the applicant, even though the sender was employed by the applicant. Many of event reports could not be linked with the applicant. He had supplied information that had made the registry aware of his name change but they had nevertheless granted his licence. 2. The references spoke highly of his demeanour, especially that from Ms Lama, his lawyer. The report of his allowing his young son to handle a rifle related only to a stock, which was why the police had taken no further action. His traffic record was troubling, but he had undertaken a traffic offender program and was seeking to improve. His errors had mainly been in his junior years, and there had been a habitual traffic offender declaration, but no custodial sentences. The registry had been aware of his record in 2013 but his licence had been granted nevertheless. 3. The reports were mainly hearsay and there was no direct link with the applicant. They were tenuous and should be given little weight. His comment to his son "Bring your phone next time or I will bash your head in" had been the trigger for the revocation process. The report was from his ex-wife, who had not been present at the time. The report that he had been seen with guns at a time when he had no firearms registered would have been serious, but must not have been seen as reliable as the police took no further action. The Bladen case should be viewed in context, as it is not clear whether the registry in that case had known of the correct information before the licence was granted. In this case, however, they knew about his name change but issued a licence. 4. He had struggled with the definition of "professional", but although he had applied for a professional shooter's permit, the contract arrangement had not proceeded. The same was true of his application to import ammunition also. 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 decision to revoke 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)(a) 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 "way of living or domestic circumstances". 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]. Supplying false or misleading information: ss 24(2)(b)(i) and 70 1. As the respondent pointed out, s 24(2)(b(i) operates as an administrative sanction for breach of s 70, remuneration were a licence applicant makes a statement or supplies information in connexion with an application knowing it to be false or misleading in a material particular. The applicant had legally changed his name with Births, Deaths, and Marriages in March 1998 and had two driver's licenses in the two different names. 2. On a number of occasions, the applicant had supplied false or misleading information in connexion with applications: * On three separate applications for a personal firearms licence, he has left blank that part of the application requested details of other names used (exhibit R1, pp 114,121,171). * On his application for a category D licence dated 30 April 2015, he had left blank part of the application requesting details of other names (exhibit R1, pp 161-166). * On personal licence applications submitted in 2009 and 2012, he had marked "no" in response to the question whether he had been the subject of an AVO within the last 10 years (exhibit R1, pp 115, 122). * On applications under the Act he had created that he was a contract shooter and an Olympic participant and failed to provide evidence in response to requests from the Registry (exhibit R1, pp 154-156, application dated July 2014). * In two applications for a permit to acquire a long arm, he marked the "Collector" box, but has never held a category G collector licence. In the PTA application dated 1 March 2016, he marked the box "Primary producer" for a fee exemption but has never substantiated his claim to be one. 1. His explanation for not declaring his other name was that he had supplied the information to the Registry by submitting his birth certificate, which showed the name change. As the forms clearly and specifically asked for details of other names, he was not entitled to make that self-serving assumption. His explanation for falsely describing himself as an Olympic participant was that he was being coached by an Olympian, Susie Balogh, and that he had competed for New South Wales, a quite inadequate basis for the statement. 2. Asked about his application to import ammunition ostensibly for personal use when he intended to resell it to his club, he said his next step would have been to apply for a dealer licence. But the fact remains that he had stated that his intention was to import for personal use when that was not his intention. As regards his claim to be a collector, he said that he must have been a "mistake". His representation that he was a primary producer also must have been a "mistake", he said. Multiple mistakes of that nature place a strain on credulity. 3. In Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240 the Tribunal said that revocation of a firearms licence because the applicant had failed to disclose his real name was a proper exercise of the discretion. The failure to disclose, the Tribunal said, failed to provide the respondent with the opportunity adequately to assess his suitability to hold a licence. The tribunal continued: "the person's identity is fundamental to an application and to providing the respondent with relevant information on which the decision to grant or refuse a licence may be base" (at [52]). 4. Those observations apply to the present case. I find that the applicant has failed to provide relevant information and has sought to gain an advantage by including information that was misleading or incapable of being substantiated. That finding alone is sufficient to warrant licence revocation. Fit and proper person: s 24 (2)(c) 1. One of the grounds on which the application is opposed is that the applicant is not a fit and proper person to hold a licence. 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. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 – 157, the High Court gave a general overview of the concept and the discretion that it embodies: The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But there purpose is to give the widest scope for judgment and indeed for rejection. "Fit" or "idoneus" with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion [my emphasis]. 1. 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 percept of ion 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. There are no reports of acts of violence perpetrated by the applicant, but the respondent relied on a number of threats of violence that he allegedly made. Event report E71373501 describes an incident in 2009 following the applicant's being terminated from his employment for disciplinary reasons. The applicant reportedly said to a witness "If I see him [the former employer] I'll put a bullet in his leg. You can tell him that" (exhibit R1, pp74-75). The applicant admitted the correctness of that report. 3. In incident report E55446683 the applicant in October 2013 is witnessed saying, "I'll punch your lights out…. I know where you live; if you don't come here I'll shoot your house up". In March 2014 the applicant is reported as having texted a business competitor with the words "Take one more customer and I will personally come to your house or factory and break your f*****g legs" (exhibit R1, pp 84-86). The applicant submitted that the evidence was insufficient to show a link between the threats and the applicant, but coming as they do from three different sources at different times, they seem, when taken together, to be reasonably reliable. The most recent, however, was five years ago. 4. There were a number of reports between 2006 and 2009 of domestic incidents between the applicant and his then wife. In one incident in 2006, the applicant reportedly said to her, "You're going to need more than police protection. I'll get John to shoot you between the eyes" (exhibit R1, p 201). Such a threat, though indirect, could be significant in the context of firearms licensing. In the course of a marriage breakup, however, parties sometimes make extreme statements that are not meant literally, and this one occurred 12 years ago. Again, it has not been reported that the applicant has engaged in actual violence or made threats while in actual possession of a firearm. 5. There is also the June 2018 report that he said to his son, in the course of an argument, "Bring your phone next time or I will bash your head in" (exhibit R1, pp 92-94). The report notes that in the course of the interaction the victim did not feel threatened but simply regarded the applicant as having been rude. Given the nature of the threat, that seems plausible. The language was uncouth rather than actually menacing. 6. Event report E50350776 (part exhibit R2) reports the applicant's ex-wife saying that between March and September 2012 she witnessed the applicant with rifles and a supposed unregistered handgun. At that time he had no firearms registered to his address. The report is rather vague and appears to lack substantiation. The police must have been of the same opinion, as they did not investigate what would otherwise have been a serious matter. The report was not put to him at the hearing and does not merit substantial weight. The same applies to a report that in September 2013 he had allowed his son, then aged nine, to handle an unloaded firearm (exhibit R1, pp 77-80). It appeared that it was only the wooden stock of a rifle and police concluded that no offence had been committed. References 1. The applicant tendered a number of references (exhibit A1), including a detailed one from Ms Monika Lama, who has been his family law solicitor for the past 10 years. She states inter alia that few fathers have his determination to pursue matters to be able to spend time with their children despite the oppression he is dealing with from his former wife. The suspension of his firearms licence resulted from his former wife's vindictiveness and was one example of the many that she has taken to make his life difficult at all costs. She had attempted to take out an AVO against him but was unsuccessful. In all the time she had known him she had never seen him be violent, aggressive or abusive. She has seen him interact with other solicitors, with court staff and with his employees and friends in a respectful and polite manner. In her view he was not a threat to anyone including his former wife and children. 2. Ms Kyrie-Anne Merzi (formerly Nash) has worked full-time for the applicant for six years and despite his preoccupations he had always maintained a positive demeanour and had never raised his voice with her, or other staff or on telephone calls or the like. He is always approachable and helpful and has never shown any signs of aggression, irritability or anything of that nature. Cross-examined, she said that his firearms licence had been revoked because his wife wanted to hurt him and prevent him from seeing the children. She had seen some of his paperwork in that connexion. 3. Ms Julia Khoury is the owner of a café next door to the applicant's business and has known him for 14 months. Since knowing him they had become great friends because of his fun, caring and honest personality. He is liked and has made friends with her staff and with other customers. He is crushed that he is still unable to see his children because his ex-wife is making things tough for him, but he has never said a bad word about her. 4. Ms Louise Blunderfield's reference speaks highly of his positive personality despite the difficulties he is going through, especially as regards custody of his children but, like Ms Khoury's, does not refer to the cancellation of his firearms licence. 5. Ms Renae Lea Walsh, the applicant's elder sister, notes that the applicant's love of cars had seen him with several driving offences in his 20s, but never other crimes. They were raised in a drug and alcohol-free household and still today all live drug and alcohol-free lives. He had always been a likeable person with a large network of family and friends. He is a man of integrity, highly dedicated to his family and business, a problem solver and an insightful business entrepreneur. 6. The references can be given due weight, subject to the reservation that only two of them make any reference to the current proceedings. 7. The applicant's use of violent and threatening language and his turbulent marriage breakup by themselves might not have been sufficient to warrant a finding that he is not a fit and proper person to hold a licence. When they are coupled, however, with his record of false or misleading statements in licence or permit applications discussed above, and his egregious traffic record outlined below, a more negative picture emerges. The applicant has shown a long-standing disregard of road traffic legislation that is designed to protect the public and an at best negligent attitude to the requirement of veracity in complying with the firearms legislation Public interest 1. Section 24(2)(d) of the Act provides that the Commissioner may revoke a licence "for any other reason prescribed by the regulations". Clause 20 of the Regulation provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold it. 2. The "public interest" in this context 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. 3. 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 licence is subordinate to the public interest in ensuring public safety. In an often-quoted passage. 4. 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 under s 11(7) 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]. 5. Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 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 set out in the Firearms Act and comments in cases should not be substituted for those tests" (at [7]). 6. Later 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]. 7. 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]. 8. An applicant's traffic record is relevant to the public interest. In the context of immigration law, I said in Re Metera and Minister for Immigration and Citizenship [2008] AATA 668, [59], "He also made light of his traffic-related convictions, but a person whose driving results in three separate periods of disqualification, repeated fines and three sentences of periodic detention (concurrent) is someone from the community needs protection on that ground alone". See also Re Aporo and Minister for Immigration and Citizenship [2008] AATA 629, [96]. 9. This tribunal expressed the same view in Keegan Jacques v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 145, [81], saying that a poor traffic record "indicates a disregard for a regulatory scheme aimed at ensuring public safety". 10. In this case also the applicant's traffic record is relevant to public safety and public interest. Since 1994 he has accumulated 49 infringement notices in respect of two licenses in different names. There are 18 speeding offences, the latest in 2013, seven offences of driving an unregistered or uninsured vehicle, three for driving on a cancelled licence and his most recent, in October 1997, is for driving while using a handheld mobile telephone. One of his licences has been suspended on seven occasions and his other received a 6-year disqualification in 1999. He was declared an habitual (traffic) offender on 25 January 2000. 11. While it is true, as Mr Kable pointed out, that the applicant's most serious offences were incurred in his earlier years, his overall history of traffic offences, some of them repeated, shows a disregard for public safety as well as a for the regulatory scheme aimed at ensuring public safety. He has completed a traffic offenders' intervention program, but although his record has improved, the record shows that there are still some recent violations. His secretary said there had been another one about two months ago. 12. In light of such a record in relation to traffic laws that are intended to safeguard public safety, the tribunal and the Commissioner could not be satisfied that he will conscientiously comply with the requirements of the firearms regulation system in all respects. Although the applicant held a firearms licence for a period of five years before it was suspended, I agree with the internal review's conclusion that "this timeframe is too short to demonstrate that [the applicant has] the ability and the intention to comply with firearms laws". At some future time the applicant may be able to satisfy the requirements for a licence, but not now. The decision under review is affirmed. Costs 1. At the conclusion of the hearing on 19 September, the respondent made an application for costs under s 60 of the CAT Act. That section relevantly reads as follows: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. 1. The respondent did not indicate which of the factors (a) to (g) was relied on, but perhaps the closest was (b). It was submitted that the respondent had incurred costs as a result of the applicant's request for the issuance of a summons when the information sought, it was argued, had already been supplied in the s 58 documents, subject to the redaction of some complainants' first names. The applicant contended that two event reports in particular had been used to cast aspersions on the applicant. He was seeking to establish the truth of the two incidents and whether the applicant was implicated. He had not pressed the summons, but if he had, the response might have helped his case as it would have established whether or not there was a link with the applicant. 2. Section 60(1) establishes the primary position is that each party bears its own costs, but s 60(2) gives the tribunal a discretionary power to depart from the general rule "only if it is satisfied that there are special circumstances warranting an award of costs". I surveyed the authorities concerning the application of that provision in Scott-Brydges v Lismore City Council (No. 2) [2018] NSWADTAD 265, [22] – [28] and there is no need to repeat that discussion here. Suffice it to say that the test is a relatively stringent one and there must be "something out of the ordinary" in the circumstances of the proceedings that warrants a departure from the usual presumption that parties bear their own costs. 3. While the objective of the summons application may or may not have represented a promising line of inquiry, it was not designed to be obstructive or time-wasting and was not so far out of the ordinary range of forensic action as to constitute special circumstances. There should be no order as to costs. Order 1. Decision under review affirmed. ********** 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: 08 October 2019