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FVS v Commissioner of Police

FVS v Commissioner of Police

Case [2023] NSWCATAD 229 24 August 2023

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FVS v Commissioner of Police [2023] NSWCATAD 229
Hearing dates: 31 May 2023
Date of orders: 24 August 2023
Decision date: 24 August 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: J D Little, Senior Member
Decision:
1. The decision to revoke the Applicant's firearms licence is affirmed.
2. The publication of the Applicant’s name in these reasons is prohibited.
3. Except pursuant to order below, the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.
4. A copy of these reasons, without redaction, shall be released to the respondent.

Catchwords:
Firearms Act - firearms licence - refusal of licence - contrary to the public interest

Legislation Cited:
Administrative Decisions Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Firearms Act 1996
Firearms Regulation 2017

Cases Cited:
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657
Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65
Director of Public Prosecutions v Smith [1991] VicRp 6
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Texts Cited:
None

Category: Principal judgment
Parties: FVS (Applicant)
Commissioner of Police, NSW Police Force
(Respondent)
Representation: Self-represented (Applicant)
Crown Solicitor (Respondent)

File Number(s): 2022/00246392
Publication restriction: 1. The publication of the Applicant’s name in these reasons is prohibited.
2. Except pursuant to order below, the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.
3. A copy of these reasons, without redaction, shall be released to the Respondent.

REASONS FOR DECISION

This is an application by the Applicant seeking administrative review of a decision by the Commissioner of Police, NSW Police Force (the Commissioner) under the Firearms Act 1996 (the Act) to revoke his Category AB firearms licence (the Application).
For the reasons that follow, the correct and preferable decision is to affirm the revocation of the Applicant's firearms licence.

Background

At the time of the final hearing, the Applicant was a 77-year-old man and lived with his then partner and two children – his son aged 14 and his daughter, aged 12 in the family home. The Applicant’s safe storage address for his firearms was at this address.
The Applicant’s son is autistic and suffers from developmental delay.…

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 FVS v Commissioner of Police

Details

AGLC: FVS v Commissioner of Police [2023] NSWCATAD 229
Case: [2023] NSWCATAD 229
Decision Date: 24 August 2023

CaseChat Overview and Summary

The case of FVS v Commissioner of Police involved an appeal by the Applicant against the decision of the Commissioner of Police to revoke their firearms licence, on the grounds that it was contrary to the public interest. The dispute was heard by the Civil and Administrative Tribunal (CAT), an administrative court established in New South Wales. The Applicant contested the revocation, arguing that it was based on insufficient evidence and failed to consider certain mitigating factors.

The primary legal issue before the tribunal was whether the Commissioner's decision to revoke the Applicant's firearms licence was lawful and whether it was contrary to the public interest. The tribunal considered whether the Commissioner had acted within their statutory powers and whether the decision was based on proper and relevant considerations. The tribunal also examined the evidence presented by both parties and assessed whether the Commissioner's decision was reasonable and justified.

In reaching its decision, the tribunal found that the Commissioner had acted within their statutory powers and that the decision to revoke the Applicant's firearms licence was lawful. The tribunal concluded that the evidence presented by the Commissioner was sufficient to support the decision that the licence was contrary to the public interest. The tribunal further found that the Commissioner had considered relevant factors and had acted in a manner consistent with the statutory framework. The Applicant's arguments regarding insufficient evidence and the failure to consider mitigating factors were not accepted by the tribunal.

The tribunal affirmed the decision to revoke the Applicant's firearms licence. The publication of the Applicant's name in the reasons for the decision was prohibited, and certain paragraphs were marked as not for publication. A copy of the reasons, without redaction, was to be released to the respondent. The tribunal's decision upheld the Commissioner's action and provided clarity on the legal framework governing the revocation of firearms licences.

Orders

Orders of the court

1. The decision to revoke the Applicant's firearms licence is affirmed.

2. The publication of the Applicant’s name in these reasons is prohibited.

3. Except pursuant to order below, the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013.

4. A copy of these reasons, without redaction, shall be released to the respondent.

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

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

FVS v Commissioner of Police [2023] NSWCATAD 229

Cases Citing This Decision

No citing cases yet.

Cases Cited

Director of Public Prosecutions v Smith [2024] HCA 32
Citation 1 (Para 71)

…ards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account;…
Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31
Citation 2 (Para 3)

…proper, while the Tribunal is to take into account matters indicating criminal conduct: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 ( Joseph ) at [62] - [64] as it is the conduct rather than the conviction that is of concern to the Tribunal: Esterman v Commissioner of Police, New…
Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184
Citation 3 (Para 63)

…to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Trans…
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Citation 4 (Para 69)

…protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.…
AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5
Citation 5 (Para 71)

…to account; to make clear that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.…
Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65
Citation 6 (Para 63)

…ut that public interest considerations play a role in the assessment of fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith , [30].…
LY v Commissioner of Police, NSW Police [2004] NSWADT 115
Citation 7 (Para 1)

…ation was made, it would be insufficient to found “reasonable cause to believe” the allegation. See LY v Commissioner of Police, NSW Police [2004] NSWADT 115.…
Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Citation 8 (Para 50)

…pt a balanced view of any identifiable risk bearing in mind all relevant circumstances: Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32] ( Webb )…
Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254
Citation 9 (Para 64)

…riety “must be considered in the context of at all times ensuring public safety”: Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254, [22].…
Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others [1995] IRCA 540
Citation 10 (Para 71)

…ar that the interests of the whole community are matters for the decision-maker's consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.…
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Citation 11 (Para 65)

…n of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:…
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28
Citation 12 (Para 68)

…In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):…
Hughes and Vale Pty Ltd v New South Wales [1954] UKPCHCA 5
Citation 13 (Para 68)

…In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):…
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64
Citation 14 (Para 67)

…In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, Walters J said:…
Commissioner of Police v Toleafoa HYPERLINK " \o "View Case" [1999] NSWADTAP 9
Citation 15 (Para 70)

…The Tribunal has also considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:…

Legislation Cited

Civil and Administrative Tribunal Act 2013 (NSW) 38(2)
2 mentions (from Para 52)
Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 42)
Administrative Decisions Tribunal Act 1997 (NSW)
1 mention
Children and Young Persons (Care and Protection) Act 1998 (NSW)
1 mention (from Para 23)
Crimes Act 1900 (ACT)
1 mention (from Para 80)
Firearms Act 1996 (TAS)
1 mention (from Para 1)

Medium Neutral Citation:	FVS v Commissioner of Police [2023] NSWCATAD 229
Hearing dates:	31 May 2023
Date of orders:	24 August 2023
Decision date:	24 August 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J D Little, Senior Member
Decision:	1. The decision to revoke the Applicant's firearms licence is affirmed. 2. The publication of the Applicant’s name in these reasons is prohibited. 3. Except pursuant to order below, the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013. 4. A copy of these reasons, without redaction, shall be released to the respondent.
Catchwords:	Firearms Act - firearms licence - refusal of licence - contrary to the public interest
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Firearms Act 1996 Firearms Regulation 2017
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 Director of Public Prosecutions v Smith [1991] VicRp 6 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110
Texts Cited:	None
Category:	Principal judgment
Parties:	FVS (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Self-represented (Applicant) Crown Solicitor (Respondent)
File Number(s):	2022/00246392
Publication restriction:	1. The publication of the Applicant’s name in these reasons is prohibited. 2. Except pursuant to order below, the contents of all paragraphs in these reasons marked “[Not for publication]” are not to be published or released pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013. 3. A copy of these reasons, without redaction, shall be released to the Respondent.