Chudleigh v Commissioner of Police

Case [2022] NSWCATAD 267

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Chudleigh v Commissioner of Police [2022] NSWCATAD 267
Hearing dates: 23 June 2022
Date of orders: 16 August 2022
Decision date: 16 August 2022
Jurisdiction:Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:

(1) The decision under review is set aside.

(2) The decision is made that the Applicant’s application for a category AB firearm licence is granted.

Catchwords:

ADMINISTRATIVE LAW – firearms licensing – residency – genuine reason – public interest – fit and proper person.

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Firearms Act 1996

Firearms Regulations 2017

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Burditt v Joslin [1981] 3 All ER 203

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16

Cooper v Commissioner of Police [2022] NSWCATAD 195

Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63

Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65

Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218

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

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31

Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117

Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368

Nelson v Commissioner of Police [2012] NSWADT 84.

Pang v Commissioner of Police [2009] NSWADT 11

Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184

Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 157.

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156

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: Andrew Chudleigh (Applicant)
Commissioner of Police (Respondent)
Representation: Solicitors:
Hartmann & Associates (Applicant)
Makinson d’Apice Lawyers (Respondent)
File Number(s): 2021/00347458
Publication restriction: Nil

Reasons for Decision

Introduction

  1. This is an application by Mr Andrew Chudleigh ("the Applicant") for review of a determination by a delegate of the Commissioner of Police ("the Respondent" or “the Commissioner”) to refuse his application for a category AB firearms licence under the Firearms Act 1996 (NSW) ("the Act"). The refusal was on two grounds:

  1. that the Commissioner was not satisfied that the Applicant was a resident of New South Wales or…

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Details
AGLC
Chudleigh v Commissioner of Police [2022] NSWCATAD 267
Case
[2022] NSWCATAD 267
Decision Date

CaseChat Overview and Summary

The matter before the court involved the Applicant, Chudleigh, who sought to overturn a decision by the Commissioner of Police to refuse his application for a firearms licence. The Applicant argued that the Commissioner’s decision was unreasonable and that he met the requirements for a licence. The court was required to determine whether the Commissioner’s decision was lawful, reasonable, and supported by the evidence.

The primary legal issue was whether the Commissioner had acted lawfully and reasonably in refusing the Applicant’s application based on the fact that he did not reside in the state of Victoria. The Applicant argued that he had a genuine reason for not residing in Victoria, and that the Commissioner’s refusal was therefore unreasonable. The court had to determine whether the Commissioner had erred in law or failed to take into account relevant considerations when making the decision.

The court found that the Commissioner’s decision was unreasonable as it was not supported by the evidence and failed to take into account relevant considerations. The court held that the Applicant had provided a genuine reason for not residing in Victoria and that the Commissioner had not provided any evidence to suggest that the Applicant was not a fit and proper person to hold a firearms licence. The court also found that the Commissioner had not considered the public interest in granting the Applicant a firearms licence. As a result, the court set aside the decision of the Commissioner and granted the Applicant’s application for a category AB firearm licence.

Orders

Orders of the court

(1) The decision under review is set aside.

(2) The decision is made that the Applicant’s application for a category AB firearm licence is granted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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