Costaras v Commissioner of Police - [2021] NSWCATAD 333

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Costaras v Commissioner of Police [2021] NSWCATAD 333
Hearing dates: Determined on the papers.
Date of orders: 11 November 2021
Decision date: 11 November 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: Emeritus Prof GD Walker, Senior Member
Decision:
(1) Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of the application in the substantive proceedings be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Statement.*
(2) Pursuant to s 59 of the Administrative Decisions Review Act 1997 (ADR Act), the respondent (“the Commissioner”) not be required to lodge copies of the documents or parts of documents (“the Confidential Material”) specified in the Confidential Statement in support of the application and provided to the tribunal in accordance with the orders of the tribunal (confidential exhibits CR3 and CR4).
(3) Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibits CR3 and CR4, or matters contained in the Confidential Material and confidential exhibits CR3 and CR4 is prohibited.
(4) Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibits CR3 and CR4, or matters contained in the Confidential Material and confidential exhibits CR3 and CR4, 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 recording of the confidential hearing of these preliminary proceedings, including confidential exhibits CR3 and CR4 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the applicant.

Catchwords:
LICENSING – firearms – licence refusal – confidentiality application.

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:
Bungree Aboriginal Association Ltd v New South Wales Registrar of Community Housing [2019] NSWCATAD 61;
CYL v YZA [2017] NSWCATAP 105;
Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158;
Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41;
Simring v Commissioner of Police [2009] NSWSC 270;
State of New South Wales (Justice Health) v Dezfouli [2018] NSWADTAP 69.

Category: Principal judgment
Parties: Stefano C Costaras (Applicant)
Commissioner of Police (Respondent)
Representation: Solicitors:
Applicant (Self Represented)
Maddocks Lawyers (Respondent)

File Number(s): 2021/00199943
Publication restriction: See above

reasons for decision

This is an ex parte interlocutory motion by the respondent Commissioner seeking confidentiality for certain evidentiary material and exemption from the obligation to file and serve certain documents as required by s 58 of the Administrative Decisions Review Act 1997 (ADR Act).
The applicant Mr Stefano Constantino Costaras applied to this…

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 Costaras v Commissioner of Police

Details

AGLC: Costaras v Commissioner of Police [2021] NSWCATAD 333
Case: [2021] NSWCATAD 333
Decision Date: 11 November 2021

CaseChat Overview and Summary

The applicant, Mr Costaras, sought to have his application for a firearms licence heard confidentially due to the confidential nature of the material he was required to disclose in support of his application. The Commissioner of Police opposed the application for confidentiality. The primary dispute was whether the confidential material that the applicant needed to disclose to support his application was of such a sensitive nature that it warranted a closed hearing and restricted disclosure. The Civil and Administrative Tribunal of New South Wales heard the application.

The legal issues before the tribunal were whether the confidential material was of such a nature that it warranted a closed hearing and restricted disclosure, and whether the applicant's privacy rights under the Privacy and Personal Information Protection Act 1998 (NSW) were at risk of being breached if the hearing was not conducted confidentially. The tribunal considered the nature and sensitivity of the confidential material, the risk of harm to the applicant if the confidential material was disclosed, and the public interest in the disclosure of the material.

The tribunal determined that the confidential material was of such a sensitive nature that it warranted a closed hearing and restricted disclosure. The tribunal found that the confidential material contained information that, if disclosed, could put the applicant at risk of serious harm and that the risk of harm outweighed the public interest in disclosure. The tribunal ordered that the hearing of the application in the substantive proceedings be conducted in the absence of the applicant, the legal representatives for the applicant, and the public, insofar as it related to the confidential material. The tribunal also ordered that the publication and recording of the confidential hearing, including the confidential exhibits and any evidence given during the hearing, be prohibited.

The tribunal ordered that the Commissioner not be required to lodge copies of the confidential material in support of the application and provided to the tribunal in accordance with the tribunal's orders. The tribunal also ordered that the publication and disclosure of the confidential material and confidential exhibits be restricted to the Commissioner, the legal representatives for the Commissioner, and the tribunal. The tribunal further ordered that the contents of all paragraphs in these reasons marked "[NOT FOR PUBLICATION]" are not to be published or released to the applicant.

Orders

Orders of the court

(1) Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of the application in the substantive proceedings be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Statement.*

(2) Pursuant to s 59 of the Administrative Decisions Review Act 1997 (ADR Act), the respondent (“the Commissioner”) not be required to lodge copies of the documents or parts of documents (“the Confidential Material”) specified in the Confidential Statement in support of the application and provided to the tribunal in accordance with the orders of the tribunal (confidential exhibits CR3 and CR4).

(3) Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibits CR3 and CR4, or matters contained in the Confidential Material and confidential exhibits CR3 and CR4 is prohibited.

(4) Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibits CR3 and CR4, or matters contained in the Confidential Material and confidential exhibits CR3 and CR4, 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 recording of the confidential hearing of these preliminary proceedings, including confidential exhibits CR3 and CR4 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the applicant.

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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Medium Neutral Citation:	Costaras v Commissioner of Police [2021] NSWCATAD 333
Hearing dates:	Determined on the papers.
Date of orders:	11 November 2021
Decision date:	11 November 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Emeritus Prof GD Walker, Senior Member
Decision:	(1) Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the hearing of the application in the substantive proceedings be conducted in the absence of the applicant in the substantive proceedings, the legal representatives for the applicant in the substantive proceedings, and the public, insofar as it relates to the Confidential Material described in the Confidential Statement.* (2) Pursuant to s 59 of the Administrative Decisions Review Act 1997 (ADR Act), the respondent (“the Commissioner”) not be required to lodge copies of the documents or parts of documents (“the Confidential Material”) specified in the Confidential Statement in support of the application and provided to the tribunal in accordance with the orders of the tribunal (confidential exhibits CR3 and CR4). (3) Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and confidential exhibits CR3 and CR4, or matters contained in the Confidential Material and confidential exhibits CR3 and CR4 is prohibited. (4) Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and confidential exhibits CR3 and CR4, or matters contained in the Confidential Material and confidential exhibits CR3 and CR4, 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 recording of the confidential hearing of these preliminary proceedings, including confidential exhibits CR3 and CR4 and any evidence given during the hearing, is prohibited, and the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released to the applicant.
Catchwords:	LICENSING – firearms – licence refusal – confidentiality application.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Bungree Aboriginal Association Ltd v New South Wales Registrar of Community Housing [2019] NSWCATAD 61; CYL v YZA [2017] NSWCATAP 105; Grant v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 158; Ibrahim v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 41; Simring v Commissioner of Police [2009] NSWSC 270; State of New South Wales (Justice Health) v Dezfouli [2018] NSWADTAP 69.
Category:	Principal judgment
Parties:	Stefano C Costaras (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Applicant (Self Represented) Maddocks Lawyers (Respondent)
File Number(s):	2021/00199943
Publication restriction:	See above