Commissioner of Police v Fortuna

[2010] NSWADTAP 51

Appeal Panel - Internal

CITATION:	Commissioner of Police, NSW Police Force v Fortuna [2010] NSWADTAP 51
PARTIES:	APPELLANT Commissioner of Police, NSW Police Force RESPONDENT Patrick Fortuna
FILE NUMBER:	109013
HEARING DATES:	27 May 2010
SUBMISSIONS CLOSED:	27 May 2010
DATE OF DECISION:	21 July 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Molony P - Judicial Member; Bubniuk L - Non-Judicial Member
CATCHWORDS:	APPEAL – identification of questions of law – extension to merits
DECISION UNDER APPEAL:	F Fortuna v Commissioner of Police, NSW Police Force P Fortuna v Commissioner of Police, NSW Police Force [2010] NSWADT 20
FILE NUMBER UNDER APPEAL:	083005, 083260
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997Firearms Act 1996
CASES CITED:	Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 C L R 25 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Ormwave Pty Ltd v Smith [2007] NSWCA 210 Beale v GIO (1997) 48 NSWLR 430 Mifsud v Campbell (1991) 21 NSWLR 725 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 K v K [2000] NSWSC 1052 Hans v Building Professional Board [2008] NSWADTAP 13 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
REPRESENTATION:	APPELLANT M Lynch, counsel RESPONDENT In person
ORDERS:	1. Leave is refused for the appeal to extend to the merits of the Tribunal’s decision 2. The order of the Tribunal is affirmed 3. The appeal is dismissed.

REASONS FOR DECISION

Introduction

1 On 9 April 2008, Patrick Fortuna applied for a Category AB firearms licence. The Commissioner of Police refused that application and Mr Fortuna applied to the Tribunal for a review of that decision. The Tribunal decided to set aside the Commissioner's decision and remit the matter for further consideration in accordance with the Tribunal's reasons for decision. The Commissioner has appealed against that decision on questions of law and has applied for leave for the appeal to be extended to the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997, s 113(2).

Background

2 On 17 November 2004, when Patrick Fortuna was 15 years old, police searched the family property and seized 33 firearms and a considerable amount of ammunition. Of the 33 firearms, 18 were unregistered. Twelve of those 18 firearms were found secreted in a hidden cavity behind the mirror of the built-in wardrobe in the room where Patrick Fortuna slept. Three of those firearms were found to have DNA on them that matched Patrick Fortuna’s DNA. Before the Tribunal, Patrick Fortuna denied handling the weapons and said he did not know that they were hidden in his bedroom.

3 Patrick Fortuna was the holder of a minor’s firearms training licence (minor’s permit) at the time. That permit had been issued on 5 July 2003. Mr Fortuna was charged with the offence of concealing an indictable offence of another person, that is, his father. When Mr Fortuna senior was found not guilty of the charges by the District Court, the police no longer pressed the charge laid against his son.

4 The Tribunal’s conclusion in relation to Mr Fortuna (who is referred to in the Tribunal’s reasons as Patrick to distinguish him from his father) appears at [90]:

In regard to Patrick, I am satisfied from the evidence that he is a fit and proper person to be the holder of a firearms licence and, subject to providing details as to where and how his firearms were to be stored, could be trusted to have possession of firearms without danger to the public. Other than requesting that ammunition be left in his room for the following day, there is no evidence that Patrick breached the provisions of the Firearms Act while he was the holder of a minor’s permit. He made his request some 5 years ago and the respondent seems to have accepted that responsibility for the breach of the safe storage requirements rested with Mr Fortuna and not Patrick. Yet Patrick in his evidence acknowledged that leaving ammunition unsecured in this way did pose a risk to public safety. He also recognised his responsibilities if he was to be issued with a licence but his father was not. My only reservation is in regard to where and in what receptacle Patrick proposes to store his firearms. This was not raised during the hearing and it is appropriate that Patrick provide this information, to the satisfaction of the respondent, before a licence is issued.

Legislative scheme

5 Section 11 of the Firearms Act 1996 gives the Commissioner power to issue a firearms licence, or not to issue such a licence. The relevant provisions for the purpose of these proceedings are s 11(1), (3) and (7):

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.
. . .

(3) A licence must not be issued unless:
(a) 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, and
(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and
(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and
(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.
. . .

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

6 Patrick Fortuna’s application for a firearms licence was refused on three grounds: firstly, that he was not a fit and proper person and could not be trusted to have possession of firearms without danger to public safety; secondly that he was not capable of meeting the storage and safety requirements in the Firearms Act; and thirdly that issuing a licence would be contrary to the public interest.

7 The Commissioner of Police relied on three considerations for concluding that Mr Fortuna was not a fit and proper person to have a firearms licence and that it was not in the public interest for him to do so. Those matters were: firstly, that Patrick Fortuna knew that unregistered firearms were hidden in his wardrobe; secondly, that he was associated with the Rebels Outlaw Motorcycle Gang and thirdly, that he assaulted a man in September 2006.

Grounds of appeal on questions of law

8 The grounds of appeal on questions of law can be summarised as follows:

1. That in reaching its conclusion at [58] that the fact that Mr Fortuna's DNA was found on three unregistered firearms was insufficient to establish that he had touched the firearms, the Tribunal made the following errors:

a) having regard to the findings by the District Court in earlier criminal proceedings rather than determining matters of evidence for itself;

b) having regard to an irrelevant consideration namely the finding at [60] that there was no evidence of the firearms found in the hidden cavity having been recently used;

c) making a finding that was not rationally or logically open on the evidence, that is the finding at [60] that “the existence of [Mr Fortuna’s] DNA on the three firearms found behind the cupboard could equally be accounted for by one or more of the ‘other scenarios’ mentioned by Ms Friedman”; and

d) coming to the conclusion that Mr Fortuna had not touched the firearms when such a finding was not reasonably open on the application of the civil standard of proof.

(These points correspond with Appeal Grounds 2, 3, 4 and 6.)

2. In relation to its findings at [41] that "finding this cavity did not appear to be an easy exercise" the Tribunal erred because such a finding was not rationally or logically open on the undisputed evidence (ground 5). The Tribunal also erred in law at [49] in finding that Mr Fortuna did not know and had no reason to know about the hidden cavity in the built-in wardrobe as such a finding was not reasonably open on all the evidence (ground 15).

3. The Tribunal erred in law in by failing to have regard to the relevant evidence that 171 rounds of .22 ammunition and 48 rounds of 12 gauge ammunition were stored in Patrick Fortuna's bedroom in considering whether he was a fit and proper person to be the holder of a firearms licence (ground 7).

4. The Tribunal's finding that [90] that, “In regard to [Patrick Fortuna], I am satisfied from the evidence that he is a fit and proper person to be the holder of a firearms licence and, subject to providing details as to where and how his firearms were to be stored, could be trusted to have possession of firearms without danger to the public” was in error because fitness and propriety cannot be conditional (grounds 8 and 13).

5. The Tribunal erred in law by failing to raise with the parties the unresolved issue of where and how firearms were proposed to be stored if the licence was to be issued and by purporting to remit to the Commissioner for his consideration the decision to refuse Patrick Fortuna a firearm’s licence without making any directions or recommendations by which such remittal might be undertaken (grounds 11 and 12) .

6. The Tribunal erred at [90] and [91] of its decision when it relied on a reference from Bryson Payne who had not been made aware of relevant admissions during the proceedings (ground 10).

Grounds 2, 3, 4 & 6 - finding that Mr Fortuna had not touched firearms

9 At [51] the Tribunal found that:

51 The DNA evidence, in my opinion, is not sufficient to establish, on the balance of probabilities, that Patrick touched or used the 3 firearms that were secreted in his room. I do accept that if it were to be found that the DNA evidence established that Patrick had touched or used the firearms in question then the irrefutable inference is that he knew about the hidden cavity and the secreted firearms. This would then give rise to a further irrefutable inference that Mr Fortuna also knew about the hidden cavity and the secreted firearms. These findings would of course contradict their oral evidence.

10 At [55] the Tribunal set out the DNA evidence, including the District Court’s findings that:

DNA profiles were found in three places which are consistent with that of Patrick Fortuna, although it is obvious from the way the search is conducted that DNA could have been picked up by transfer from other objects, in particular Patrick Fortuna’s bedspread on which those weapons were placed in the course of the search . . .

11 The expert evidence of Ms Friedman was that:

In my opinion, the finding of DNA on these items is most likely as a result of an individual coming into physical contact with (i.e. handling) the items. The likelihood of DNA transferring to the firearms from an apparently clean, made up bed on which they have been placed, is very small. Other scenarios to account for this DNA are also possible.

12 The Tribunal went on to conclude, at [58], that:

58 Although the opinions expressed by Ms Neville and Ms Friedman in their respective certificates were not tested through cross-examination, I agree with the contentions of the applicants that the fact of Patrick’s DNA having been found on the 3 unregistered firearms is insufficient to establish, on the balance of probabilities, that Patrick had in fact touched the firearms.

13 We note that the word ‘insufficient’ originally read ‘sufficient’ but that the Tribunal has since amended that paragraph in accordance with the slip rule: ADT Act, s 87.

14 Even though this evidence was not tested in cross-examination, the Tribunal rejected it for several reasons. Those reasons are set out in [58] to [61]:

[58] First, the opinion of Ms Friedman in this regard is equivocal and not conclusive. For example, she assumes that all 4 firearms were found in the wardrobe and transferred from ‘an apparently clean, made up bed.’, when only 3 were. The other, the Boito .410 shotgun, found to have Patrick’s DNA on it, was that found in Mr Fortuna’s gun safe. In his evidence Patrick acknowledged that he had used the Boito .410 shotgun and that he had used it under the supervision of his father and Mr Norman.

59 Secondly, Ms Friedman said that ‘other scenarios’ could account for the presence of Patrick’s DNA on these 4 firearms. What these other scenarios may be is not explained. Finally, Ms Friedman’s opinion is also based on the assumption of the firearms having been placed on a ‘clean’ made up bed. I assume this to have been the respondent’s instructions to her as there is no evidence of Patrick’s bed spread having been examined or tested for Patrick’s DNA. I also note that Ms Neville in her certificate makes no reference to having examined or tested the bed spread when she identified the DNA of ‘Male A’ as being the DNA of Patrick.

60 Furthermore, in the absence of any evidence of the firearms found in the hidden cavity having been recently used, the existence of Patrick’s DNA on the 3 firearms found behind the cupboard could equally be accounted for by one or more of the ‘other scenarios’ mentioned by Ms Friedman.

Do grounds 2, 3, 4 and 6 identify a question of law?

15 The first question is whether any of these grounds identify a question of law. Ground 2 was that the Tribunal erred in [48], [55] and [69] by having regard to the findings by the District Court in earlier criminal proceedings rather than determining matters of evidence for itself. While it may be an error of law to adopt findings made by the District Court, rather than coming to its own view on the evidence, that is not what the Tribunal did. In [48], [55] and [69], the Tribunal quoted parts of the decision of the District Court. However, it did not adopt those findings as its own. Rather, the Tribunal made it clear at [37] that its enquiry was broader than that which was before the District Court in the criminal proceedings noting that the Tribunal is required to have regard to all established facts relevant to the issue of public safety. In addition the Tribunal agreed with the Commissioner's submission that matters of fact must be established from the evidence before the Tribunal. With respect, this ground of appeal, even if it does identify a question of law, does not disclose an error.

16 Ground 3 is based on a submission that the Tribunal took into account an irrelevant consideration namely that there was no evidence that the firearms found in the hidden cavity had been recently used. Whether a decision maker took into account an irrelevant consideration is a question of law which normally arises in relation to the exercise of discretionary power, not in relation to the fact finding process. When exercising a discretion, the decision maker must take into account relevant considerations and must not take into account irrelevant considerations. However the Tribunal will only have made an error of law if it failed to take into consideration a matter which it is bound to take into account or takes into consideration a matter which it is bound not to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 C L R 25 per Mason J at p 39. Aronson and others makes the point in Judicial Review of Administrative Action (4th edition, Lawbook Co 2009 at 5.30) that statutes rarely give detailed instructions as to the facts that can or must be considered as opposed to the factors or considerations that must be taken into account when exercising a discretion. In this case, the fact that there was no evidence that the firearms in the hidden cavity had been recently used, was obviously not a fact which is listed in the Firearms Act as a fact which the Commissioner (or the Tribunal standing in his shoes) was bound to take into account. No question of law has been identified.

17 Ground 4 relates to the Tribunal's finding at [60] that "the existence of the [Patrick Fortuna’s] DNA on the three firearms found behind the cupboard could equally be accounted for by one or more of the ‘other scenarios’ mentioned by Mr Friedman. That finding was said not to be rationally or logically open on the evidence. This ground appears to rely on the High Court’s reasoning in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. However, in that case it was made clear that extremely irrational or illogical reasoning on credibility or other factual issues may amount to jurisdictional error but not to an error of law: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 62 per Gleeson CJ. Even a perverse finding of fact does not give rise to an error of law: Azzopardiv Tasman UEB Industries Ltd (1985) 4 NSWLR 139. It is only where a decision maker acts without any evidence or without probative evidence that an error of law is made: Ormwave Pty Ltd v Smith [2007] NSWCA 210 at [14] per Beazley JA, with whom Santow and Ipp JJA agreed. Although the Commissioner did not submit that the finding was made without evidence, or without probative evidence, having raised it we will consider that possibility.

18 In considering whether the Tribunal has made a finding without evidence, or without probative evidence, we must look at the finding itself, not at the individual pieces of evidence that led to that finding. Put simply, the finding was that Patrick Fortuna had not touched the firearms despite the fact that there was evidence from expert witnesses that the presence of Patrick Fortuna’s DNA on 3 firearms was ‘most likely as a result of an individual having coming into physical contact (ie handling) the firearm.’ One reason the Tribunal gave for not accepting that evidence, even though it was not challenged, was that:

60 . . .[I]n the absence of any evidence of the firearms found in the hidden cavity having been recently used, the existence of Patrick’s DNA on the 3 firearms found behind the cupboard could equally be accounted for by one or more of the ‘other scenarios’ mentioned by Ms Friedman.

19 In other words, the fact that Ms Friedman conceded that other scenarios were possible, together with the fact that there was no evidence that the firearms had recently been used, was one of the reasons that the Tribunal was not satisfied that Patrick Fortuna had touched the firearms. The Commissioner submitted that there was no direct evidence or any logical basis for drawing an inference that Patrick Fortuna's DNA on the three weapons from his cupboard ‘could equally be accounted for by one or more of the other scenarios’. The expert’s opinion was that the DNA was most likely as a result of an individual handling the items. The acknowledgement that other scenarios were possible could not reasonably be interpreted to mean that they were equally as likely.

20 The finding itself was based on probative evidence including Patrick Fortuna's denial during cross-examination that he had touched the firearms. It was also based on probative evidence from Ms Friedman that other scenarios accounting for the DNA were also possible. While we accept that the Tribunal rejected uncontested expert evidence that the most likely explanation of the presence of the DNA was that it had been touched by an individual, it cannot be said that the Tribunal made a finding without evidence or without probative evidence. In those circumstances, the Commissioner has not satisfied us that the Tribunal has made an error of law.

21 The Commissioner also stated in his written submissions that the Tribunal's finding at [58], that Ms Friedman’s opinion was ‘equivocal and not conclusive’ was not open on its face. According to the Commissioner, that finding was neither equivocal nor inconclusive. It was an expert opinion which concluded that it was "most likely" that Mr Fortuna handled all four weapons. As we have explained, to say a finding of fact is not ‘open on its face’ does not disclose an error of law. In order to constitute an error of law a factual finding must be based on no evidence or no probative evidence. We do not agree that the Tribunal's comment that Ms Friedman's opinion was equivocal and not conclusive was not based on probative evidence. The Tribunal gave four reasons for finding that Ms Friedman’s evidence was equivocal and inconclusive:

1. that Ms Friedman assumed “that all 4 firearms were found in the wardrobe and transferred from ‘an apparently clean, made up bed.’, when only 3 were. The other, the Boito .410 shotgun, found to have Patrick’s DNA on it, was that found in Mr Fortuna’s gun safe. In his evidence Patrick acknowledged that he had used the Boito .410 shotgun and that he had used it under the supervision of his father and Mr Norman.” (at [58])

2. “Secondly, Ms Friedman said that ‘other scenarios’ could account for the presence of Patrick’s DNA on these 4 firearms. What these other scenarios may be is not explained.” (at [59]

3. “Finally, Ms Friedman’s opinion is also based on the assumption of the firearms having been placed on a ‘clean’ made up bed. I assume this to have been the respondent’s instructions to her as there is no evidence of Patrick’s bed spread having been examined or tested for Patrick’s DNA. I also note that Ms Neville in her certificate makes no reference to having examined or tested the bed spread when she identified the DNA of ‘Male A’ as being the DNA of Patrick.” (at [59]

4. “Furthermore, in the absence of any evidence of the firearms found in the hidden cavity having been recently used, the existence of Patrick’s DNA on the 3 firearms found behind the cupboard could equally be accounted for by one or more of the ‘other scenarios’ mentioned by Ms Friedman.” (at [60])

22 The evidence, as a whole, was sufficiently probative to allow the Tribunal to come to the view, with make a legal error, that Mr Fortuna had not touched the firearms.

23 Another point made by the Commissioner in his written submissions was that the Tribunal erred by relying for its finding on the fact that Ms Friedman had assumed that the firearms were placed on a ‘clean’ made up bed when there was no evidence of a Mr Fortuna’s bed spread having been examined or tested for his DNA. The Commissioner referred to evidence given by Patrick Fortuna that his bed was always made. That evidence was supported by the video of the search of the room which showed the bed was made when the weapons were placed on it.

24 This ground of appeal misses the point that the Tribunal was making. The point was not whether the bed was made or not, but whether the bed was ‘clean’, in particular whether it was likely to contain Patrick Fortuna’s DNA. The Tribunal's comment that there was no evidence that the bedspread had been examined or tested for DNA, was relevant to the question of the weight that should be given to Ms Friedman's evidence. We can detect no error of law in relation to this comment.

Ground 15 - knowledge of the hidden cavity

25 At [41] the Tribunal concluded that:

41 The video taken by police when executing the warrant demonstrates that these firearms were not visible when either of the 2 wardrobe doors was opened. They had only been found after the police sniffer dogs had identified the bottom of the wardrobe as being an area of concern, resulting in the police emptying the wardrobe and removing part of flooring on one side of the wardrobe and finding a magazine. The police then stepped into the back of the wardrobe and found part of the internal side wall of the wardrobe had been removed giving access to the hidden cavity behind the mirror in which the firearms were found. Finding this hidden cavity did not appear to be an easy exercise.

26 The Commissioner submitted that, in concluding that "finding this cavity did not appear to be an easy exercise" the Tribunal erred because such a finding was not rationally or logically open on the undisputed evidence. According to Commissioner the cumulative effect of the DNA evidence and the relative ease in locating the cavity is critical to the issue of Mr Fortuna's knowledge of the weapons. A related ground of appeal is that at [49], the Tribunal found that:

Leaving aside the DNA evidence, I am also satisfied that Mr Fortuna did not know and had no reason to know about the hidden cavity in the built-in wardrobe in Patrick’s room or the firearms that were contained within it. Mr Fortuna did not know and had no reason to know about the hidden cavity in the built-in wardrobe.

27 Again, the Commissioner submitted that such a finding was not reasonably open on all the evidence (ground 15).

28 The short answer to these grounds of appeal is that, as explained previously, they do not identify a question of law. The findings were made on the basis of probative evidence including the video and Patrick Fortuna's evidence that he was unaware of the hidden cavity in the wardrobe. The Tribunal found Patrick Fortuna had responded truthfully to questions about this issue.

29 Alternatively, the Commissioner submitted that the Tribunal’s reasons were inadequate because they failed to refer to competing evidence given by Senior Constable Young and Senior Constable Trevallion in coming to the conclusions it did at [41] and [49]. Neither of those offices was required for cross-examination. The evidence from Senior Constable Young was that, "Upon opening the door I immediately noticed that there was a void behind the cupboard to the right.” He also said that when he stepped into the wardrobe and looked to the right he could see a number of firearms leaning against the rear wall. Senior Constable Trevallion’s evidence was that it would not be possible to regularly use the cupboard and not know that the access to the cavity was at the rear of the hanging space. The Tribunal did not specifically mention this evidence in its reasons for decision.

30 The Tribunal does not make an error of law by failing to refer to all the evidence: Beale v GIO (1997) 48 NSWLR 430 per Meagher JA at 442. While a decision maker should refer to relevant evidence, it is only where evidence that is important or critical is not referred to that it will be implied that the evidence was overlooked or not considered: Mifsud v Campbell (1991) 21 NSWLR 725 at 728.

31 The Tribunal's failure to refer expressly to the evidence of the senior Constable Young and Senior Constable Trevallion, does not make its reasons at [41] and [49] inadequate. The Tribunal referred to the video evidence of the search which demonstrated that the firearms were not visible when either of the two wardrobe doors was opened. It was not until the police stepped into the back of the wardrobe that they found part of the internal wall had been removed giving access to the cavity behind the mirror in which the firearms were found. In our view the Tribunal's conclusion that "finding this hidden cavity did not appear to be an easy exercise" was a finding that was supported by adequate reasons notwithstanding the failure to mention the police officers evidence. That evidence was not inconsistent with the video evidence or with the Tribunal's understanding that one needed to step into the wardrobe and turn to the right before being able to observe the hidden cavity in which the firearms were stored.

Ground 7 - ammunition in the bedroom

32 Police found unsecured ammunition in Patrick Fortuna's bedroom. The evidence from Sergeant Hughes and Sergeant Scott was that a total of 171 .22 calibre cartridges were found as well as 48 12-gauge cartridges. In its reasons for decision at [62] the Tribunal said that during their search police found 22 rounds of ammunition in Patrick Fortuna’s bedroom on top of the steel cabinet. The Tribunal found that they had been put there by Mr Fortuna senior for his son to use the following day at the shooting range. The Commissioner submitted that other unsecured ammunition was found in Mr Fortuna's bedroom but the Tribunal did not refer to that matter in its reasons nor take that fact into account in assessing whether Patrick Fortuna was a fit and proper person to have a firearms licence. The Commissioner acknowledged that the holder of a minors permit has no direct obligations under the Firearms Act concerning the storage of ammunition. However, the Commissioner emphasised that Patrick Fortuna's room contained a large amount of unsecured ammunition and said that this was a relevant consideration which was not taken into account by the Tribunal.

33 The Tribunal found at [90] that Patrick Fortuna had not breached any provisions of the Firearms Act while he was the holder of a minors permit. He acknowledged asking his father to leave the ammunition in his room for use on the following day. As the Commissioner has conceded, this does not amount to a breach of the Firearms Act as Patrick Fortuna was a minor at the time.

34 Again, it is not an error of law to fail to refer to particular evidence unless that evidence is critical to a disputed issue. The Tribunal referred to 22 rounds of ammunition in Patrick Fortuna’s bedroom on top of the steel cabinet. It did not explicitly refer to any other ammunition that may have been unsecured. The precise amount of unsecured ammunition that was in Patrick Fortuna’s bedroom is not critical given that the Tribunal found that 22 rounds were unsecured and that Patrick Fortuna knew it was there. In addition, there was no legal obligation on Patrick Fortuna to ensure safe storage of ammunition at that time, so the precise amount of unsecured ammunition was not a critical matter in terms of his current fitness and propriety.

Grounds 8 and 13: can fitness be ‘conditional’?

35 The Tribunal’s findings at [90] are set out at [3] above. The Commissioner submitted that the Tribunal erred by making a finding that Patrick Fortuna could be conditionally trusted to have firearms without danger to the public subject to suitable unspecified storage arrangements. According to the Commissioner such a conditional finding illustrates that Patrick Fortuna was not a fit and proper and could not be so trusted. The inference is that without such a condition it was contrary to the public interest to issue the licence. In support of this submission the Commissioner relied on Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 639B.

36 This ground of appeal misconceives the Tribunal’s decision. Section 11 of the Firearms Act regulates the issuing of firearms licences. Among the matters about which the Commissioner must be satisfied are:

1. 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: s 11(3)(a); and

2. that the storage and safety requirements set out in Part 4 are capable of being met by the applicant s 11(3)(c).

37 In refusing Patrick Fortuna’s application, the Commissioner was not satisfied that Patrick Fortuna was a fit and proper person or that he was capable of meeting the storage requirements. At [90] the Tribunal stated that the only reservation it had was ‘where and in what receptacle’ Patrick Fortuna would store his firearms. In our view, that reservation did not convey a doubt about Patrick Fortuna’s fitness and propriety, but rather a concern that despite s 11(3)(c) (capacity to meet storage and safety requirements) being a ground for refusing his application, the issue of storage had not been raised during the hearing. The first sentence of [90] makes it clear that the Tribunal was satisfied that Patrick Fortuna was a fit and proper person to be the holder of a firearm’s licence. We agree that the Tribunal went on to add that subject to providing details as to where and how his firearms were to be stored, he could be trusted to have possession of firearms without danger to the public. However, reading [90] as a whole, it is apparent that the Tribunal’s concern did not relate to his fitness or propriety but to his capacity to meet the storage requirements in Part 4 of the Firearms Act. The matter was remitted so that the Commissioner could be satisfied that Patrick Fortuna had a suitable receptacle in which to store his firearms and ammunition and thus comply with s 11(3)(c). Given that the Commissioner’s ground of appeal misconceives the Tribunal’s finding, the error that was said to have been made, has not been made.

Grounds 11 & 12: remittal without directions or recommendations

38 The Tribunal’s order was as follows:

The decision of the respondent to refuse Patrick William Fortuna’s firearms licence is set aside and remitted for further consideration in accordance with the Tribunal’s reasons for decision.

39 The power to remit a decision is found in s 63(3)(d) of the ADT Act:

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

40 The Commissioner said that the Tribunal made no directions or recommendations when remitting the decision and that means that the Tribunal's order under s 63(3)(d) was not a valid exercise of power. A reading of the Tribunal’s decision makes it clear that there was a direction to Patrick Fortuna to provide the relevant information and, at least by implication, a recommendation to the Commissioner to issue the licence on satisfaction that the storage requirements could be met.

41 The Commissioner made the point that the Tribunal did not state expressly what storage requirements would satisfy the Commissioner assuming that Patrick Fortuna provided that information. The storage requirements are set out explicitly in Part 4 of the Firearms Act. There was no need for the Tribunal to restate these provisions. Contrary to the Commissioner’s submission, the omission in the decision of any guidance as to what storage arrangements might be considered suitable does not raise a question of law. Those requirements are explicitly stated in the legislation. At [90] the Tribunal said that Patrick Fortuna should provide information to the Commissioner as to where and in what receptacle he is to store his firearms and that the Commissioner must be satisfied as to those matters before a licence is issued.

Ground 10: reference from Bryson Payne

42 After finding that Patrick Fortuna was a fit and proper person to be the holder of a firearms licence the Tribunal mentioned that it had taken into account a reference from Mr Bryson Payne, President of the Bateman’s Bay Sporting Shooters Association, who said in his statement that Patrick Fortuna was a trustworthy and careful user of firearms. The Commissioner pointed out that Mr Payne’s reference makes no specific mention of Patrick Fortuna's admission that he assaulted a person or that he agreed to ammunition being left unsecured by his father for his convenience. In those circumstances the Tribunal could not have known whether the views expressed by Mr Payne would have been different with that knowledge. According to the Commissioner this constitutes an error of law because the Tribunal took into account an irrelevant consideration.

43 Mr Payne’s reference was relevant because it expressed a view about Patrick Fortuna’s trustworthiness and care in using firearms. The weight that the Tribunal accorded to that evidence does not raise a question of law.

Extension to merits

44 It is not necessary for the Appeal Panel to first identify an error of law before granting leave for an appeal to be extended to the merits of the Tribunal’s decision: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. The onus of proof lies on the party applying for leave and the standard of proof is on the balance of probabilities: World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 at [25] per Sully J. The discretion is open and unfettered but must be exercised in a fair and just manner having regard to the purpose of the relevant legislation: Jones v Ekermawi [2009] NSWSC 143 at [13]. Certain inferences can be drawn from the fact that leave is required. They include the fact that the need for leave is a ‘control filter’ designed, among other things, to protect respondents from the cost of a full hearing of appeals which should not properly be entertained: World Best Holdings Ltd v Sarker & Anor, per Sully J at [25]. Circumstances which may justify leave being granted include where the Tribunal has gone about its fact finding process in an unfair or unorthodox manner: K v K [2000] NSWSC 1052 at [10] to [15].

45 The effect of granting leave for an appeal to extend to the merits of the Tribunal’s decision is that the Appeal Panel would determine the case, or part of the case, again on the basis of the evidence used in the first instance hearing, together with such additional evidence as it thinks fit to receive: ADT Act, s 114 and Hans v Building Professional Board [2008] NSWADTAP 13 at [94] to [96].

46 The Commissioner gave six reasons for requesting that the appeal be extended to the merits of the Tribunal's decision:

1. Determination of the questions of law identified above will necessarily involve extensive consideration of the facts and the evidence so that extension to the merits should not unduly burden the Appeal Panel.

2. The appeal could be conveniently disposed of by turning directly to the merits of the decision under appeal.

3. Extending the appeal to the merits is unlikely to involve additional evidentiary material.

4. It would be more efficient and expeditious for the Appeal Panel to dispose of the matter rather than remitting it to the Tribunal at first instance.

5. The decision on the merits was wrong, infected with significant error and contrary to the evidence and/or the overwhelming weight of the evidence.

6. A review on the merits can be conveniently undertaken on the documentary evidence and transcript with the benefit of written submissions.

47 While we agree with each of these points as matters of principle, the only substantive reason given for extending the appeal to the merits is that the decision is contrary to the overwhelming weight of the evidence.

48 The Tribunal found at [49] that, leaving aside the DNA evidence, it was satisfied that neither Patrick Fortuna, nor his father, knew about the hidden cavity or the firearms that were contained in it. The Tribunal carefully considered the evidence and found Patrick Fortuna to be a frank and truthful witness. The Tribunal went on to consider whether the expert evidence about Patrick Fortuna’s DNA being on three of the firearms, was sufficient to persuade it to a contrary view. It found that it was not. The Tribunal did not come to that conclusion in an unorthodox or unfair manner. It was a finding that was reasonably open on the evidence.

49 We do not consider the Tribunal’s finding that Patrick Fortuna did not know that the firearms were hidden in his bedroom to be a finding of fact which justifies extending the appeal to the merits of the decision. Nor are we persuaded, for the reasons already given, that any other findings of fact are contrary to the overwhelming weight of the evidence.

Orders

1. Leave is refused for the appeal to extend to the merits of the Tribunal’s decision.

2. The order of the Tribunal is affirmed.

3. The appeal is dismissed.