Fitzpatrick v Commissioner of Police, NSW Police Service

[2000] NSWADT 154

CITATION:	Fitzpatrick -v- Commissioner of Police, NSW Police Service [2000] NSWADT 154
DIVISION:	General Division
PARTIES:	APPLICANT John Fitzpatrick RESPONDENT Commissioner of Police, NSW Police Service
FILE NUMBER:	003274
HEARING DATES:	24/10/2000
SUBMISSIONS CLOSED:	10/24/2000
DATE OF DECISION:	11/03/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:
REPRESENTATION:	In person J Tunks, solicitor
ORDERS:	1. The decision of the Director General not to issue the applicant with a firearms licence is affirmed.

1 On 14 August 2000, Mr Fitzpatrick applied to the Tribunal for a review of a decision by the Commissioner of Police to refuse to grant him Category A, B and C firearms licences The reason for the refusal was that Mr Fitzpatrick has been subject to an Apprehended Violence Order within the previous 10 years.

2 The parties agreed that the Tribunal should determine this matter without conducting a hearing. Section 76 of the Administrative Decisions Tribunal Act 1997 allows the Tribunal to conduct a “paper” hearing. That sections states that:

The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.

Legislation

3 Under s 11(5)(c) of the Firearms Act 1996:

A licence must not be issued to a person who:
(c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked)

Evidence

4 On 31 July 1999 Mr Fitzpatrick applied for a Category A, B and C firearms licences. That application was refused on 14 December 1999. Mr Fitzpatrick requested an internal review which affirmed the original decision.

5 The police file shows that on 23 November 1993, the Local Court issued an Apprehended Violence Order directed to Mr Fitzpatrick. That order was expressed to be in force for 12 months. A further Apprehended Violence Order was made against Mr Fitzpatrick in relation to another person on 1 March 1994. That order was expressed to be for a period of 12 months.

Finding

6 Mr Fitzpatrick has been subject to an apprehended violence order within 10 years before the application for the licence was made. That order has not been revoked.

Decision

7 Pursuant to s 11(5)(c) Mr Fitzpatrick cannot be issued with a firearms licence for 10 years from the date of expiry of the order, that is until 1 March 2005. This is a mandatory provision. Neither the Commissioner of Police nor the Tribunal have any discretion to grant a firearms licence in these circumstances.

Order

8 The decision of the Director General not to issue the applicant with a firearms licence is affirmed.