Legal Research
Cases
Content removed.

Content removed.

Case [2020] NSWCATAD 255

Judicial Review

Natural Justice & Procedural Fairness

Fit and Proper Person

Administrative Law

Type to search within this case.

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: EMB v Commissioner of Police [2020] NSWCATAD 255
Hearing dates: 8 October 2020
Date of orders: 20 October 2020
Decision date: 20 October 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: Naida Isenberg, Senior Member
Decision:
The Respondent’s decision is set aside and the Tribunal substitutes a new decision to grant a category AB firearms licence to the Applicant, for the genuine purpose of ‘sport/target shooting’.

Catchwords:
FIREARMS LICENCE - fit and proper person - serious charges unrelated to firearms dismissed at trial – public interest

Legislation Cited:
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Criminal Procedure Act 1986
Firearms Act 1996

Cases Cited:
AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228
AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5
Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254
Bronze Wing International Pty Limited v Safe Work New South Wales [2017] NSWCA 42
CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384
Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657
Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.
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] NSWCAT 31
Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145
Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144
Manning v Commissioner of Police [2020] NSWCATAD 111
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206
McDonald v Director General of Social Security (1984) 1FCR 353 at 357
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794
Re Percival and Australian Securities Commission (1993) 30 ALD 280
Sawires v Commissioner of Police [2010] NSWADT 4
Tannous v Commissioner of Police [2011] NSWADT116
Tzoudas v Ministry of Transport [2008] NSWADT 350
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Wentworth v Rogers (1984) 2 NSWLR 422

Texts Cited:
None cited

Category: Principal judgment
Parties: EMB (Applicant)
Commissioner of Police (Respondent)
Representation:
Counsel:
C Nowlan (Applicant)
Solicitors:
Johnson & Sendall (Applicant)
Maddocks Lawyers (Respondent)

File Number(s): 2020/00152964

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 Content removed.

Details

AGLC: EMB v Commissioner of Police [2020] NSWCATAD 255
Case: [2020] NSWCATAD 255
Decision Date: 01/01/2020

CaseChat Overview and Summary

In this case, the Applicant sought a review of a decision by the Respondent, which had refused to grant them a firearms licence. The Applicant had applied for a category AB firearms licence for the genuine purpose of sport/target shooting. The Tribunal was required to determine whether the Applicant was a fit and proper person to hold a firearms licence, in accordance with the relevant statutory provisions. The central issue was whether the Applicant's fitness to hold a firearms licence was impacted by serious criminal charges that were dismissed at trial, and whether the dismissal of these charges was in the public interest.

The court examined the criteria for determining whether an applicant was a fit and proper person to hold a firearms licence. It considered the seriousness of the charges, the timing of the dismissal, and the public interest in the Applicant holding a firearms licence. The court noted that the dismissal of the charges at trial indicated that there was insufficient evidence to prove the charges beyond reasonable doubt. The court also emphasised that the public interest in the Applicant holding a firearms licence for the purpose of sport/target shooting outweighed any potential risk posed by the dismissed charges. The court held that the Respondent's decision was unreasonable and set it aside, substituting a new decision to grant the Applicant a category AB firearms licence.

The court ordered that the decision of the Respondent be set aside and that a new decision be substituted to grant the Applicant a category AB firearms licence for the genuine purpose of sport/target shooting. The court found that the Applicant was a fit and proper person to hold a firearms licence, and that the public interest in the Applicant holding a licence for this purpose outweighed any potential risk posed by the dismissed charges. The court emphasised the importance of considering the specific circumstances of each case when determining whether an applicant was a fit and proper person to hold a firearms licence.

Orders

Orders of the court

The Respondent’s decision is set aside and the Tribunal substitutes a new decision to grant a category AB firearms licence to the Applicant, for the genuine purpose of ‘sport/target shooting’.

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

EMB v Commissioner of Police [2020] NSWCATAD 255

Most Recent Citation

PUNTER and COMMISSIONER OF POLICE [2020] WASAT 142

Cases Citing This Decision

Samuel Peake v Commissioner of Police [2024] NSWCATAD 84
Citation 1

…Public Prosecutions v Smith [1991] 1 VR 63 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77 EMB v Commissioner of Police [2020] NSWCATAD 255 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSW…
FZQ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 11
Citation 2 (Para 3)

…ce of probabilities, that the conduct complained of was true. This conclusion being consistent with the reasoning in EMB v Commissioner of Police [2020] NSWCATAD 255 at [29] which was upheld on appeal in Commissioner of Police v EMB [2022] NSWCATAP 85. Irrespective of the fact that the conduct relied upon is not condu…
Diamond v Commissioner of Police, NSW Police Force [2024] NSWCATAD 1
Citation 3 (Para 21)

…held by the applicant and they should not be relied upon. It is submitted the tribunal should consider the decision in EMB v Commissioner of Police [2020] NSWCATAD 255 (although counsel cited it as Harris) which concerned an applicant with a poor traffic history and who had been charged with several serious offences b…
Mallon v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 325
Citation 4

…mmissioner of Police, New South Wales Police Force [2012] NSWADT 244; Harris v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 255; Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89; Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127; Kavalieratos v…
EMB v Commissioner of Police [2021] NSWCATAD 247
Citation 5 (Para 1)

…ew decision to grant the Applicant a category AB firearms licence, for the genuine purpose of ‘sport/target shooting': EMB v Commissioner of Police [2020] NSWCATAD 255 (Original Decision).…
Lahood v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 18
Citation 6 (Para 50)

…tribunal declining to exercise its discretion in the applicant’s favour by analogy with EMB v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 255, in which Isenberg SM, referring to allegations of sexual assault that had been withdrawn on the eve of trial, though they had been established to the…
PUNTER and COMMISSIONER OF POLICE [2020] WASAT 142
Citation 7 (Para 7)

…The applicant referred in support of the application to Harris v Commissioner of Police [2020] NSWCATAD 255, where the Tribunal (at [51]) placed particular weight on the applicant's offences not having involved the use of a firearm, and the absence of other incidents involving the applicant in his capacity as a gun ow…

See all citing cases →

Cases Cited

Director of Public Prosecutions v Smith [2024] HCA 32
Citation 1 (Para 59)

…owledged to be for ‘the good order of society and for the well-being of its members’: Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63.…
Lee v Commissioner of Police [2020] NSWCATAD 144
Citation 2 (Para 35)

…application only identifies 'sport/target shooting'. Consistent with the reasoning of SM Montgomery in Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAD 144 at [99], if granted, the licence would not permit the use of firearms for primary production. Currently, the Applicant does not live on a farm, his o…
Manning v Commissioner of Police [2020] NSWCATAD 111
Citation 3 (Para 17)

…The Applicant referred to Manning v Commissioner of Police [2020] NSWCATAD 111 where SM Emeritus Professor Walker discussed, at [33], that the relevant standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities, and observing that these are not adversar…
Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145
Citation 4 (Para 56)

…s are designed for public safety: see Tannous v Commissioner of Police [2011] NSWADT116, at [32] and [37]. In Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145, SM Scahill noted at [81] that:…
Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97
Citation 5 (Para 60)

…itudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, at [64] – [66].…
Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42
Citation 6 (Para 18)

…In Bronze Wing International Pty Limited v Safe Work New South Wales [2017] NSWCA 42 Leeming JA held (Basten JA & Gleeson JA concurring) at [127]:…
Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137
Citation 7 (Para 61)

…d then making decisions that are consistent with the need to reduce any risks to a minimum. See also Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Since Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales…
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Citation 8 (Para 59)

…lic safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33]. The concept includes standards acknowledged to be for ‘the good order of society and for the well-being of its members’: Director of Public Pros…
AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5
Citation 9 (Para 61)

…e Ward, Hennessy DP has cautioned against applying that language in a mechanistic way: see AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].…
AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228
Citation 10 (Para 62)

…Following the approach of JM Frost in AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228 I consider there to be several factors that weigh in the Applicant's favour.…
Sawires v Commissioner of Police [2010] NSWADT 4
Citation 11 (Para 44)

…plicant's firearms licence, the Respondent submitted that these references, should be given little or no weight: per Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53].…
Tzoudas v Ministry of Transport [2008] NSWADT 350
Citation 12 (Para 44)

…references do not demonstrate an awareness of the sexual assault charges. Consistent with the Tribunal's reasoning in Tzoudas v Ministry of Transport [2008] NSWADT 350 at [42], and in circumstances where the referees do not articulate an awareness of the circumstances giving rise to the refusal of the Applicant's fi…
Wentworth v Rogers & Anor [2007] HCATrans 747
Citation 13 (Para 26)

…the accused person has committed an indictable offence. The test therefore was whether a jury could convict on the evidence: see Wentworth v Rogers (1984) 2 NSWLR 422 at 429 and 440.…
Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55
Citation 14 (Para 21)

…In Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 at [20], the Appeal Panel also observed:…
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Citation 15 (Para 41)

…In Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that when considering if an Applicant is a fit and proper person, their conduct should be considered and whether that conduct is such that the Applicant can be trusted to have possession of firearms without presenting a…
Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89
Citation 16 (Para 60)

…ulation has been held to also apply to the public interest test as well: see Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89 at [23] and Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 at [130]. The question of risk is not to be viewed as requir…
Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Citation 17 (Para 59)

…adversely to an individual. Public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].…
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
Citation 18 (Para 60)

…Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 ( Ward ) at [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…
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 53
Citation 19 (Para 59)

…e term appears: CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381. A decision in relation to the public interest in this context is particularly informed by the underlying principles and objectives of the Act and t…
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
Citation 20 (Para 59)

…is well established that the Tribunal will have regard to the context in which the term appears: CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384, 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381. A decision in relation to the public interest in this context is…
Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others [1995] IRCA 540
Citation 21 (Para 59)

…he only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 at 681. Consideration of public interest allows for matters going beyond the applicant’s character to be taken into account. They include public protec…
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Citation 22 (Para 39)

…In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Mason CJ explained, at 380, that:…
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28
Citation 23 (Para 49)

…'s fitness is to be considered in the light of the activities that the person will undertake: see In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority (1995) 38…
Hughes and Vale Pty Ltd v New South Wales [1954] UKPCHCA 5
Citation 24 (Para 49)

…A person's fitness is to be considered in the light of the activities that the person will undertake: see In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveil…
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
Citation 25

…y should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings [Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66] reflects a more general approach to fact finding, which is applicable by analogy to NCAT. (Tribunal emphasis)…
Commissioner of Police v Toleafoa HYPERLINK " \o "View Case" [1999] NSWADTAP 9
Citation 26 (Para 59)

…erlying principles and objectives of the Act and the strict controls under the Act in relation to licensing. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], the Appeal Panel said that the ‘public interest' is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the…
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Citation 27 (Para 19)

…ch a submission is misplaced; there is no burden or onus of proof in the Tribunal: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34]. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal is not bound by the rules of evidence and may inquire into and i…
McDonald v Director General of Social Security (1984) 1 FCR 353
Citation 28 (Para 1)

…The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the [Commissioner] is correct : McDonald v Director General of Social Security (1984) 1FCR 353 at 357 . Neither, as the Applicant’s counsel asserted, is there a “presumption of innocence”, as is discussed below.…

Legislation Cited

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 1)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 19)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 26)
Firearms Act 1996 (TAS)
1 mention (from Para 2)

Medium Neutral Citation:	EMB v Commissioner of Police [2020] NSWCATAD 255
Hearing dates:	8 October 2020
Date of orders:	20 October 2020
Decision date:	20 October 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Naida Isenberg, Senior Member
Decision:	The Respondent’s decision is set aside and the Tribunal substitutes a new decision to grant a category AB firearms licence to the Applicant, for the genuine purpose of ‘sport/target shooting’.
Catchwords:	FIREARMS LICENCE - fit and proper person - serious charges unrelated to firearms dismissed at trial – public interest
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Criminal Procedure Act 1986 Firearms Act 1996
Cases Cited:	AMJ v Commissioner of Police NSW Police Force [2012] NSWADT 228 AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 Bronze Wing International Pty Limited v Safe Work New South Wales [2017] NSWCA 42 CIC Insurance Limited v Bankstown Football Club (1997) 187 CLR 384 Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. 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] NSWCAT 31 Keegan Jacques v Commissioner of Police [2017] NSWCATAD 145 Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144 Manning v Commissioner of Police [2020] NSWCATAD 111 Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206 McDonald v Director General of Social Security (1984) 1FCR 353 at 357 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794 Re Percival and Australian Securities Commission (1993) 30 ALD 280 Sawires v Commissioner of Police [2010] NSWADT 4 Tannous v Commissioner of Police [2011] NSWADT116 Tzoudas v Ministry of Transport [2008] NSWADT 350 Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Wentworth v Rogers (1984) 2 NSWLR 422
Texts Cited:	None cited
Category:	Principal judgment
Parties:	EMB (Applicant) Commissioner of Police (Respondent)
Representation:	Counsel: C Nowlan (Applicant) Solicitors: Johnson & Sendall (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	2020/00152964