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Burn v Commissioner of Police

Burn v Commissioner of Police

Case [2022] NSWCATAD 197 15 June 2022

Jurisdiction

Discovery & Disclosure

Confidentiality

Limitation Periods

Administrative Law

Type to search within this case.

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Burn v Commissioner of Police [2022] NSWCATAD 197
Hearing dates: 20 May 2022
Date of orders: 15 June 2022
Decision date: 15 June 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: Naida Isenberg, Senior Member
Decision:
(1) Pursuant to s 49 of the CAT Act, the hearing of the Application in the substantive matter insofar as it relates to the Confidential Documents described in the Confidential Affidavit be conducted in the absence of the Applicant, the legal representative for the Applicant (if any), and the public (Private Hearing);
(2) Pursuant to s 59 of the ADR Act, the Commissioner is not required to lodge copies of the Confidential Documents described in the Confidential Affidavit;
(3) Pursuant to s 64(1)(c) of the CAT Act, the publication of
(a) any evidence given during the Private Hearing,
(b) the Confidential Documents and the Confidential Affidavit and
(c) matters contained in the Confidential Documents and the Confidential Affidavit,
is prohibited;
(4) Pursuant to s 64(1)(d) of the CAT Act, the disclosure of
(a) any evidence given during the Private Hearing,
(b) the Confidential Documents and the Confidential Affidavit and
(c) matters contained in the Confidential Documents and the Confidential Affidavit, is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal;
(5) Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and reporting of the hearing of this Application, including any evidence given during the confidential hearing part of the hearing, is prohibited.

Catchwords:
LICENSING – firearms - confidentiality

Legislation Cited:
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Firearms Act 1996
Firearms Regulation 2017
Privacy and Personal Information Protection Act 1998
Health Records and Information Privacy Act 2002

Cases Cited:
Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66
Brennan v State of New South Wales [2006] NSWSC 167
Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61
CYL v YZA [2017] NSWCATAP 105
Fisher v NSW Police [2002] NSWADT 267
Grant v Commissioner of Police [2020] NSWCATAD 158
Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41
McCausland v State of NSW [2010] NSWSC 1562
Sankey v Whitlam (1978) 142 CLR 1
Simring v Commissioner of Police [2009] NSWSC 270
State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69
Zreika v v Commissioner of Police [2020] NSWCATAD 202

Texts Cited:
None cited

Category: Principal judgment
Parties: Tania Burn (Applicant)
Commissioner of Police (Respondent)
Representation: Solicitors:
Applicant (Self Represented)
McCullough Robertson Lawyers (Respondent)

File Number(s): 2022/00043132
Publication restriction: See Order (5) above

REASONS FOR DECISION

Background to the substantive matter

The Applicant, Tania Burn has held a firearms licence since 2009. Her most recent licence was suspended on 14 August 2021. In the meantime, she sought, on 16 January 2020 to renew her licence. On 13 January 2022 her application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burn v Commissioner of Police

Details

AGLC: Burn v Commissioner of Police [2022] NSWCATAD 197
Case: [2022] NSWCATAD 197
Decision Date: 15 June 2022

CaseChat Overview and Summary

In the matter of Burn v Commissioner of Police, the primary focus was on the confidentiality of documents pertaining to firearms licensing. The matter was heard in the Civil and Administrative Tribunal of New South Wales. The applicant, Burn, sought to challenge the refusal by the Commissioner of Police to grant him a firearms licence, while also requesting the tribunal to order the disclosure of certain documents related to the decision-making process. The Commissioner opposed the disclosure, arguing that the documents were confidential and exempt from public disclosure.

The legal issues that the tribunal was required to address were whether the confidential documents should be disclosed, and if so, under what conditions. The applicant argued that transparency in the decision-making process warranted the disclosure of the documents, while the Commissioner contended that the documents contained sensitive information that needed to be protected from public disclosure. The tribunal had to balance the public interest in transparency with the need to protect sensitive information and ensure fair decision-making.

The tribunal found that the documents contained sensitive information that, if disclosed, could potentially harm the individuals involved and the decision-making process itself. The tribunal held that the documents were exempt from disclosure under relevant legislative provisions and that the hearing, insofar as it related to the confidential documents, should be conducted in the absence of the applicant, their legal representative, and the public. The tribunal also imposed restrictions on the publication and reporting of any evidence given during the confidential part of the hearing, as well as the confidential documents and affidavit.

The final orders included conducting the confidential part of the hearing in the absence of the applicant, their legal representative, and the public, prohibiting the publication and reporting of any evidence given during the confidential hearing, and restricting the disclosure of the confidential documents and affidavit to the Commissioner, their legal representatives, and the tribunal. This decision underscores the importance of balancing transparency with the protection of sensitive information in administrative law proceedings.

Orders

Orders of the court

(1) Pursuant to s 49 of the CAT Act, the hearing of the Application in the substantive matter insofar as it relates to the Confidential Documents described in the Confidential Affidavit be conducted in the absence of the Applicant, the legal representative for the Applicant (if any), and the public (Private Hearing);

(2) Pursuant to s 59 of the ADR Act, the Commissioner is not required to lodge copies of the Confidential Documents described in the Confidential Affidavit;

(3) Pursuant to s 64(1)(c) of the CAT Act, the publication of

(a) any evidence given during the Private Hearing,

(b) the Confidential Documents and the Confidential Affidavit and

is prohibited;

(4) Pursuant to s 64(1)(d) of the CAT Act, the disclosure of

(a) any evidence given during the Private Hearing,

(b) the Confidential Documents and the Confidential Affidavit and

(c) matters contained in the Confidential Documents and the Confidential Affidavit, is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal;

(5) Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and reporting of the hearing of this Application, including any evidence given during the confidential hearing part of the hearing, is prohibited.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Burn v Commissioner of Police [2022] NSWCATAD 197

Most Recent Citation

Burn v Commissioner of Police, NSW Police Force [2025] NSWCATAD 52

Cases Citing This Decision

Burn v Commissioner of Police, NSW Police Force [2025] NSWCATAD 52
Citation 1 (Para 7)

…DR Act and s 49(2) and ss 64(1)(b), (c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act): Burn v Commissioner of Police [2022] NSWCATAD 197.…

See all citing cases →

Cases Cited

Zreika v Commissioner of Police [2020] NSWCATAD 202
Citation 1 (Para 2)

…tion of detailed information concerning Police methodology. As I have said on many previous occasions, including in Zreika v Commissioner of Police [2020] NSWCATAD 202 ( Zreika), to which I was referred, in relation to actual Police methodologies, the process is akin to a large jigsaw puzzle. Disclosure of what is kno…
Grant v Commissioner of Police [2020] NSWCATAD 158
Citation 2 (Para 26)

…ot reason to avoid making such orders; that provision implicitly permits such a denial of procedural fairness: Grant v Commissioner of Police [2020] NSWCATAD 158 ( Grant ) at [24].…
Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61
Citation 3 (Para 25)

…Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. In Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 at [26], the Tribunal stated that the starting point in deciding whether an order under s 64(1) of the CAT Act should be made is the presumption set…
Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41
Citation 4 (Para 26)

…ntial nature” of those documents or, more broadly, “for any other reason”: see Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41 at [3]. Any resultant denial of procedural fairness that would arise from the making of orders under s 64(1) of the CAT Act is not reason to avoid making suc…
Bellamy v Bellamy [2018] NSWSC 534
Citation 5 (Para 2)

…ecessor to s 64(1) of the NCAT Act, being s 75(2) of the Administrative Decisions Tribunal Act 1997 (as it was then known)). 20. In Bellamy v Bellamy [2018] NSWSC 534 at [30], Parker J said, with respect to s 64(1)(d): Section 64(1)(d) is a provision which applies generally to proceedings in the Tribunal. Most proc…
McCausland v State of NSW [2010] NSWSC 1562
Citation 6 (Para 2)

…R 1 at 61. Moreover, public interest immunity extends to the protection of confidentiality of Police methodology: McCausland v State of NSW [2010] NSWSC 1562 at [20].…
Simring v Commissioner of Police [2009] NSWSC 270
Citation 7 (Para 2)

…ng information concerning informants: see, for example Fisher v NSW Police [2002] NSWADT 267, at [34]; and Simring v Commissioner of Police [2009] NSWSC 270, at [69]. [NOT FOR PUBLICATION] Thirdly, as can be observed from the redacted material supplied in the s 58 documents, some of the information relates to the p…
State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69
Citation 8 (Para 24)

…is to be interpreted with regard to the basic common law precept of open justice: see State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 ( Dezfouli ) at [61].…
Brennan v State of New South Wales [2006] NSWSC 167
Citation 9 (Para 27)

…I was referred to Brennan v State of New South Wales [2006] NSWSC 167 ( Brennan ) where Hall J referred to the principles set out in R v Mentuck (2001) 3 SCR 442, a decision of the Supreme Court of Canada. His Honour held at [51]-[52]:…
John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101
Citation 10 (Para 2)

…t or restrict the reporting of matters occurring in open court described by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 4. As set out above at [44], his Honour stated that by virtue of the principle of open justice, an order prohibiting fair and accurate reports of…
Fisher v NSW Police [2002] NSWADT 267
Citation 11 (Para 2)

…protecting the confidentiality of Police sources and not disclosing information concerning informants: see, for example Fisher v NSW Police [2002] NSWADT 267, at [34]; and Simring v Commissioner of Police [2009] NSWSC 270, at [69]. [NOT FOR PUBLICATION] Thirdly, as can be observed from the redacted material supplied…
Young v Quin [1985] FCA 18
Citation 12 (Para 2)

…I accept that, generally, information that reveals the identity of a confidential informant is immune from production: Cain v Glass (No 2) (1985) 3 NSWLR 230, at 247-248 and Sankey v Whitlam (1978) 142 CLR 1 at 61. Moreover, public interest immunity extends to the protection of confidentiality of Police methodology:…
R v Australian Broadcasting Tribunal; Ex Parte Hardiman [1980] HCA 13
Citation 13 (Para 25)

…4 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66, citing Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. In Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 at [26], the Tribunal stated that the starting poi…
Sankey v Whitlam [1978] HCA 43
Citation 14 (Para 2)

…the identity of a confidential informant is immune from production: Cain v Glass (No 2) (1985) 3 NSWLR 230, at 247-248 and Sankey v Whitlam (1978) 142 CLR 1 at 61. Moreover, public interest immunity extends to the protection of confidentiality of Police methodology: McCausland v State of NSW [2010] NSWSC 1562 at [2…
Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66
Citation 15 (Para 25)

…open justice and procedural fairness: see for example Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66, citing Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247. In Bungree Aboriginal Association Limited v NSW Registrar of Community…
(2001) 3 SCR 442 (2001) 3 SCR 442
Citation 16 (Para 27)

…I was referred to Brennan v State of New South Wales [2006] NSWSC 167 ( Brennan ) where Hall J referred to the principles set out in R v Mentuck (2001) 3 SCR 442, a decision of the Supreme Court of Canada. His Honour held at [51]-[52]:…

Legislation Cited

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 2)
Administrative Decisions Tribunal Act 1977 (NSW)
1 mention (from Para 2)
Administrative Decisions Tribunal Act 1997 (NSW)
1 mention (from Para 2)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 1)
Firearms Act 1996 (TAS)
1 mention
Health Records and Information Privacy Act 2002 (NSW)
1 mention (from Para 16)
Privacy and Personal Information Protection Act 1998 (NSW)
1 mention (from Para 16)

Medium Neutral Citation:	Burn v Commissioner of Police [2022] NSWCATAD 197
Hearing dates:	20 May 2022
Date of orders:	15 June 2022
Decision date:	15 June 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Naida Isenberg, Senior Member
Decision:	(1) Pursuant to s 49 of the CAT Act, the hearing of the Application in the substantive matter insofar as it relates to the Confidential Documents described in the Confidential Affidavit be conducted in the absence of the Applicant, the legal representative for the Applicant (if any), and the public (Private Hearing); (2) Pursuant to s 59 of the ADR Act, the Commissioner is not required to lodge copies of the Confidential Documents described in the Confidential Affidavit; (3) Pursuant to s 64(1)(c) of the CAT Act, the publication of (a) any evidence given during the Private Hearing, (b) the Confidential Documents and the Confidential Affidavit and (c) matters contained in the Confidential Documents and the Confidential Affidavit, is prohibited; (4) Pursuant to s 64(1)(d) of the CAT Act, the disclosure of (a) any evidence given during the Private Hearing, (b) the Confidential Documents and the Confidential Affidavit and (c) matters contained in the Confidential Documents and the Confidential Affidavit, is restricted to the Commissioner, the legal representatives for the Commissioner and the Tribunal; (5) Pursuant to ss 64(1)(b), 64(1)(c) and 64(1)(d) of the CAT Act, the publication and reporting of the hearing of this Application, including any evidence given during the confidential hearing part of the hearing, is prohibited.
Catchwords:	LICENSING – firearms - confidentiality
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Firearms Act 1996 Firearms Regulation 2017 Privacy and Personal Information Protection Act 1998 Health Records and Information Privacy Act 2002
Cases Cited:	Appellant S214 of 2004 v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 66 Brennan v State of New South Wales [2006] NSWSC 167 Bungree Aboriginal Association Limited v NSW Registrar of Community Housing [2019] NSWCATAD 61 CYL v YZA [2017] NSWCATAP 105 Fisher v NSW Police [2002] NSWADT 267 Grant v Commissioner of Police [2020] NSWCATAD 158 Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41 McCausland v State of NSW [2010] NSWSC 1562 Sankey v Whitlam (1978) 142 CLR 1 Simring v Commissioner of Police [2009] NSWSC 270 State of New South Wales (Justice Health) and anor v Dezfouli [2008] NSWADTAP 69 Zreika v v Commissioner of Police [2020] NSWCATAD 202
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Tania Burn (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Applicant (Self Represented) McCullough Robertson Lawyers (Respondent)
File Number(s):	2022/00043132
Publication restriction:	See Order (5) above