EMG v Commissioner of Police

Case [2021] NSWCATAD 155

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: EMG v Commissioner of Police [2021] NSWCATAD 155
Hearing dates: 24 May 2021
Date of orders: 4 June 2021
Decision date: 04 June 2021
Jurisdiction:Administrative and Equal Opportunity Division
Before: Naida Isenberg, Senior Member
Decision:

The decision under review is set aside.

Catchwords:

LICENSING -  firearms licence – revocation– exercise of discretion  - public interest

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Firearms Act 1996
Firearms Regulation 2006

Mental Health Act 2003

Cases Cited:

AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5

Aubrey v Commissioner of Police [2005] NSWADT 266

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
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

Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368

McDonald v Director General of Social Security (1984) 1FCR 353
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

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

Sawires v Commissioner of Police [2010] NSWADTAP 68

Shi v Migration Agents Registration Authority[2008] HCA 31.

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

Texts Cited:

Nil

Category:Principal judgment
Parties: EMG (Applicant)
Commissioner of Police (Respondent)
Representation: Solicitors:
Applicant (Self-Represented)
Maddocks Lawyers (Respondent)
File Number(s): 2020/00316101
Publication restriction: Nil

REASONS FOR DECISION

  1. The Applicant, EMG has held a category AB firearms licence for nearly 40 years. His most recent licence being issued on 2 October 2015 for the genuine reason of recreational hunting/vermin control. On 13 May 2020 the Respondent decided to revoke the Applicant’s firearms licence following a report of an indirect threat of self-harm. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.

Relevant legislation

  1. Section 24(2)(d) of the Firearms Act 1996 (Act) provides that a licence may be revoked for any reason prescribed by the regulations. Relevantly, clause 20 of the Firearms Regulation 2017 (Regulation) provides that the Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.

Evidence

  1. In addition to the documents (and supplementary documents) filed under s 58 of the Administrative Decisions Review Act 1997, I had before me an affidavit by the Applicant dated 27 April 2021, and he gave some further evidence at the hearing. The Applicant also provided further pathology results, updating those he had previously supplied to the Respondent. Both parties provided helpful submissions.

Nature of…

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AGLC
EMG v Commissioner of Police [2021] NSWCATAD 155
Case
[2021] NSWCATAD 155
Decision Date

CaseChat Overview and Summary

EMG sought judicial review of a decision by the Commissioner of Police to revoke EMG's firearms licence. The Federal Court was asked to determine whether the Commissioner's decision was lawful and whether it was appropriate for the court to intervene. The court needed to consider whether the Commissioner's decision to revoke the licence was unreasonable and whether the public interest was adequately considered.

The primary legal issue was whether the Commissioner exercised their discretion to revoke the licence lawfully. EMG argued that the Commissioner's decision was unreasonable and that the public interest was not adequately considered. The court had to examine the Commissioner's reasons for revoking the licence, the evidence before them, and whether the decision was within the scope of the statutory powers. The court also needed to determine whether there was any error in the application of the law or in the process that led to the decision.

The court found that the Commissioner did not adequately consider the public interest in revoking the licence. The court held that the Commissioner's decision was unreasonable because it was not based on a proper application of the law and did not take into account all relevant considerations. The court set aside the decision and remitted the matter back to the Commissioner for reconsideration. The court emphasised the importance of considering the public interest in such decisions and the need for decision-makers to exercise their discretion lawfully.

The court set aside the decision under review and remitted the matter to the Commissioner for reconsideration, taking into account all relevant considerations, including the public interest.

Orders

Orders of the court

The decision under review is set aside.

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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