Hornyak v Commissioner of Police, New South Wales Police Force

[2022] NSWCATAD 339

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hornyak v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 339

Hearing dates:

6 October 2022

Date of orders:

24 October 2022

Decision date:

24 October 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

(1)   The time for filing an Application for Review to this Tribunal is extended to 21 April 2022

(2)   The decision under review is affirmed.

Catchwords:

EXTENSION OF TIME – late identification of issue – unfairness not to proceed - principles – prospects of success – not clear positive or negative prospects

LICENSING – firearms – fit and proper person – whether able to exercise continuous and responsible control – public interest

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Addison v Commissioner of Police, NSW Police Force [2019] NSWCATAD 99

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

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254

CFA v Department of Family and Community Services [2016] NSWCATAD 32

CFZ v Department of Education [2015] NSWCATAD 231

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

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

Cramp & Cramp v Commissioner of Police, NSW Police Force [2022] NSWCATAD 189

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

EEN v Commissioner of Police, NSW Police Force [2020] NSWCATAD 87

Gad v Commissioner of Police, NSW Police Force [2022] NSWCATAD 226

Grant v Commissioner of Police [2020] NSWCATAD 158

In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28; (1955) 93 CLR 127

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Jones v Dunkel (1959) 101 CLR 98

Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144

LY v Commissioner of Police, NSW Police [2004] NSWADT 115

Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97

McDonald v Director General of Social Security (1984) 1FCR 353 at 357

McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Newman v Commissioner of Police [2018] NSWCATAD 17

Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137

Shi v Migration Agents Registration Authority [2008] HCA 31

Sobey v Commercial Agents Board (1979) 22 SASR 70

Stamatelatos v Commissioner of Police, NSW Police Force

Turley v Commissioner of Police , NSW Police Force [2012] NSWADT 162

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

Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110

Category:

Principal judgment

Parties:

Imre Hornyak (Applicant)
Commissioner of Police, New South Wales Police Force (Respondent)

Representation:

Counsel:
Dr S Tully (Applicant)

Solicitors:
PDC Lawyers & Town Planners (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2022/00114015

Publication restriction:

Nil

REASONS FOR DECISION

1. On 7 April 2020 the Applicant, Imre Hornyak applied for a firearms licence. The Respondent decided to refuse his application. The Applicant sought internal review but, when the review was not finalised within 21 days, the Applicant sought review by this Tribunal: s 53(9)(b) of the Administrative Decisions Review Act 1997 (ADR Act).

2. The Applicant lodged his Application for Review on 21 April 2022, which was over 4 months late: s 40 of the Civil and Administrative Tribunal Act 2013 (CAT Act), s 55(3) of the ADR Act, and R 24 of the Tribunal’s Procedural Rules, the default application period for the Applicant to make his application to the Tribunal ended on 24 November 2021. The issue was only raised by the Respondent with the Applicant’s counsel the day before the hearing, and was only brought to my attention at the commencement of the hearing. The parties agreed that I should hear all the evidence and, if satisfied that it was appropriate to extend the time for lodgment of the Application for Review, then proceed to determine the matter.

CONSIDERATION OF EXTENSION OF TIME

3. The Tribunal has power under s 41 of the CAT Act to grant an extension of time in which to make an Application for Review. In exercising its discretion, the Tribunal must seek to give effect to the guiding principles to facilitate the just, quick and cheap resolution of the real issues in the proceeding: s 36 of the CAT Act.

4. Guidance in relation to the factors the Tribunal is to take into account when considering whether to exercise its discretion to grant an extension for an appeal was provided in  Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson). In CFZ v Department of Education [2015] NSWCATAD 231 the Tribunal concluded that those principles, as discussed by the Appeal Panel in Jackson, were equally applicable to an administrative review application. These were conveniently summarised by Dr Lucy SM in CFA v Department of Family and Community Services [2016] NSWCATAD 32 at [29]:

29. Whilst it is important to remember that the Tribunal has a broad discretion concerning the grant of an extension of time, the cases referred to above establish that the following factors are relevant:

(1) The length of the delay;

(2) The reason for the delay;

(3) The applicant’s prospects of success;

(4) Any prejudice suffered by the respondent;

(5) Public interest considerations;

(6) Timeliness or delay in antecedent administrative processes;

(7) Whether strict compliance with the rules will work an injustice upon the applicant.”

5. The Respondent referred to the recent case of Cramp & Cramp v Commissioner of Police, NSW Police Force [2022] NSWCATAD 189 (Cramp & Cramp) in which Dinnen SM refused the applicants' applications for extensions of time to file applications for administrative review. There, the delay was significantly less than in the present matter - 10.5 and 16 weeks, compared to over 4 months.

6. As to prejudice suffered by the Respondent, the Respondent submitted that it would suffer prejudice as a result of a decision extending the time of unreasonably late applications for review in circumstances where the Respondent is opposing the extension of time.

7. As to public interest considerations in extending the time, I accept that, generally, public interest considerations support a time limitation on applications for administrative review in order to achieve the Tribunal's objectives, pursuant to the guiding principle contained in the CAT Act. ·

8. Timeliness or delay in antecedent administrative processes. It was noted on the Applicant’s behalf that, after lodging the application for internal review on 6 October 2021, the Applicant’s solicitor had patiently followed up with the Respondent on 27 October 2021, 16 December 2021, 31 January 2022, and 9 March 2022. While there was a prompt response to each inquiry, the internal review was unprocessed, and remains so. While, as under s 53(9)(b) of the ADR Act, the internal review was taken to be finalised, the Applicant’s solicitor was, nonetheless being advised that the matter remained in the queue for consideration. It is not unreasonable that he considered that as an appropriate avenue to pursue, given that he was continually being assured that the matter remained under consideration. The Applicant’s election, no doubt, also was impacted by financial considerations associated with bringing a properly conducted Application for Review before the Tribunal, and the likely delay in obtaining a hearing date.

9. As whether strict compliance with the rules would work an injustice upon the Applicant, I accept that refusal to hear and determine the late Application for Review would not preclude the Applicant from re-applying for a firearms licence. It was also submitted that, as in Cramp & Cramp, the delay was caused entirely by the Applicant. This submission was, it seems to me, somewhat misplaced in that the Respondent, over a long period, had failed to respond to the Applicant’s internal review request. While the time period for applying direct to the Tribunal may be fixed, it is difficult to accept the Respondent’s criticism of the Applicant for awaiting the outcome of his internal review request. Further, the issue of the delay was only raised by the Respondent with the Applicant’s counsel the day before the hearing. By that time, I accept, he had incurred considerable expense in pursuing the Application for Review, only, at that very late stage, to have the Respondent criticise his delay, in circumstances where the Respondent had failed to deal with the Applicant’s application for internal review. In Cramp & Cramp the issue had been raised in the course of a directions hearing.

10. Reason for the delay In Cramp & Cramp the Tribunal specifically provided the applicants with the opportunity to file any evidence relevant to their extension of time application, and they failed to do so. In this matter, in his Application for Review the Applicant did not address the reason for the delay, nor was it addressed in the material he filed. As the issue was not raised by the Respondent until so late, the omission is hardly surprising. In the course of his evidence the Applicant referred many times to work stresses, although this was not specifically submitted as a reason for the delay.

11. Perhaps unsurprisingly, the parties had differing views as to the Applicant’s prospects of success. In Cramp and Cramp, neither party had filed any evidence in the proceedings. The Senior Member was, however able to come to a view as to prospects of success. Based on the Respondent’s original decision in refusing the licence application in relation to one applicant, his application for a firearms licence appeared to have been refused because of a criminal history including convictions for a number of firearms offences and charges for threatening an individual, although these were ultimately dismissed. A previous firearms application had been refused by the Respondent. In relation to the other Applicant, she had previously the subject of a decision by the Tribunal in relation to a firearms dealers licence application, which was refused. The Tribunal affirmed the Respondent’s decision in those proceedings to refuse the dealers licence application, on the basis of her domestic circumstances as the spouse of the other applicant, their living together, and being ‘close associates’, and the evidence demonstrating that issuing her with the licence would not be in the public interest. There has been no evidence provided by the applicants to suggest that these factual circumstances, as previously found by the Tribunal in 2020, had changed.

12. Recently in Gad v Commissioner of Police, NSW Police Force [2022] NSWCATAD 226 Dr Lucy, SM said at [48]:

48. It is not the role of the Tribunal, when deciding an application for an extension of time, to make a finding as to whether the applicant is likely to be successful in the proceedings. The test of whether an applicant has a fairly arguable case is designed to avoid such speculation. …

13. In this matter, however, I do not consider, from the evidence discussed in detail below that the outcome of the matter is nearly as clear-cut as it was in Cramp & Cramp. The Applicant pointed to the fact that he has no criminal history, including no incidents in relation to the misuse, or threat of misuse of firearms, even in circumstances where the Applicant may have been affected by alcohol. Although there have been provisional AVOs taken out by Police, no AVOs have proceeded. I accept that the Applicant has a fairly arguable case.

14. For these reasons, I have decided to extend time for the Applicant’s lodgement of the application to the Tribunal, pursuant to s 41 of the CAT Act.

Relevant legislation in the substantive matter

15. The underlying principles of the Firearms Act 1996 (the Act) are to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety: s 3 of the Act.

16. The Act, in setting out restrictions on the issue of licences, provides, relevantly, at s 11:

...

(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and

...

(4) Without limiting the generality of subsection (3)(a), a licence must not be issued if the Commissioner has reasonable cause to believe that the Applicant may not personally exercise continuous and responsible control over firearms because of:

(a) the applicant's way of living or domestic circumstances, or

…

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Evidence

17. The Applicant provided an affidavit dated 5 July 2022. He gave evidence and was cross examined. He also provided affidavits, dated 5 July and 22 August 2022 by his friend of many years and work colleague, Eileen Angelo, who also gave evidence and was cross examined.

18. The Respondent provided material in accordance with s 58 of the ADR Act, as well as an affidavit by Senior Constable Luke Dickson dated 12 August 2022. SCON Dickson gave evidence and was cross examined.

19. A recording of two 000 calls made on 10 August 2019 was played during the hearing.

20. Both the Applicant’s counsel and the Respondent’s representative provided helpful written submissions.

Tribunal’s approach

21. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31. Under s 38(2) of the CAT Act the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 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. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

CONSIDERATION

Applicant’s licence history

22. The Applicant was first issued with a firearms licence on 12 June 2013 to expire on 4 July 2018. His licence was suspended on 13 December 2017, and then revoked by on 20 June 2018. That decision was affirmed on internal review and the Applicant sought review by this Tribunal. For reasons that are unknown, the matter was remitted by the Tribunal to the Commissioner on 10 May 2019.

23. On 5 June 2019, the Applicant lodged an application for a category AB firearms licence. The application was refused on 12 December 2019. The Applicant sought review by the Tribunal but the application for review was withdrawn.

24. On 7 April 2020, the Applicant lodged a further application for a Category AB firearms licence. That application was finally refused on 13 September 2021. The Applicant's internal review request was received on 6 October 2021, but the internal review has not been completed. On 21 April 2022, the Applicant filed the present administrative review application with the Tribunal.

On what basis was the Applicant’s licence application refused?

25. The Applicant’s application was refused on the basis that it would be against public interest for him to hold a firearms licence and also because he may not personally exercise continuous and responsible control over firearms because of his way of living.

What does the Respondent contend?

26. The Respondent relied on information about the Applicant’s domestic circumstances and his alleged heavy consumption of alcohol, and aspects of his behaviour between 2017 and 2019, as cumulatively supporting the contention that the Applicant is not a fit and proper person to hold a firearms licence, and that it is not in the public interest for him to hold a firearms licence.

13 December 2017

27. On 13 December 2017 Police were called to the Applicant’s home by the Applicant’s wife, from whom he was estranged. She described by him as being "heavily intoxicated" and that he had threatened self-harm and was armed with a gun; he was not attempting suicide but was “thinking about it”. He was described as having mental health issues and anger and depression issues. His wife provided further information that he had said he was going to play “Russian roulette” and that he said he would be “gone tomorrow”. He reportedly had told his mother-in-law that he was going to overdose on insulin.

28. The Applicant said in cross examination that the incident had occurred because it was his wife’s birthday and, as they had separated, he was “upset”, but not angry, that he had not been included in the birthday celebrations. He said he had spoken with his wife on a number occasions that day but could not remember how many times. He could not remember the conversations, other than in relation to possibly catching up with her and their son.

29. In his affidavit the Applicant said that he was aware that his wife and mother-in-law were in the same place at the time of this event, and that he had messaged his mother-in-law (with whom he was in regular contact, he said) because his wife was not answering her phone at the time. He said that the reference to being "gone tomorrow" refers to him leaving the family home, not a threat to take his life.

30. The Applicant said he did not know where the information, including that he was affected by alcohol, had come from. The Applicant said in his evidence that he and his wife have since reconciled. As the Respondent pointed out, it would have been helpful if she had been called to clarify what had occurred. The Applicant said the incident had never been discussed between them, and he would not ask her to provide a statement, as they don’t want to re-live the experience.

31. The Applicant denied that when the Police and the Ambulance arrived he refused to speak with them; he said he was calm and coherent. However, he also said that shortly after the Police arrived, he went into a (hypoglycaemic) low as he had just given himself insulin as food was “due to arrive” but had not. Ms Angelo wrote in her letter of 13 July 2018 (contained in the s 58 documents) that they intended to go out for dinner - which is inconsistent with the Applicant’s account - and the Applicant had consumed a small amount of food before the Police arrived. The Applicant said that when he suffers a “low” he becomes disorientated and incoherent, and found it difficult to speak when being asked questions. In cross examination he said that Ms Angelo brought him chicken and jelly beans because he was experiencing a low after taking insulin.

32. Once the hypoglycaemic incident passed the Applicant became, Ms Angelo said, “quite jovial and chatty with both Police and ambulance officers”, including at the hospital.

33. Police located 3 empty insulin injectors in the bathroom and a number of empty blister packs. When the Applicant was conveyed to hospital he was found to have twice the amount of insulin in his system. The Applicant said there was “no limit” to the amount of insulin he should administer and this was dependent on his blood/sugar levels.

27. As to blister packs and empty insulin injectors located by Police the Applicant said in his affidavit that these have to be disposed of in a safe manner via a sharps container; he was waiting for one to arrive and he had nowhere to place the empty vials in the meantime. The blister packs are for the needles for the insulin injector and these need to be changed regularly as they become blunt. In cross examination he said that he has been an insulin-dependent diabetic for many years and must take insulin before, and sometimes after, meals. It would be unusual, in my view, given that he has been insulin-dependent for “many years”, that he would not have already acquired an appropriate disposal receptacle, co-incidentally, at that time, was waiting for one to arrive.

28. The Applicant denied that he was trying to overdose on insulin. At the time he did not have a self-regulating pump to monitor his sugar levels. Since that time he has purchased a monitor. Similarly, it is difficult to understand that he would not already have acquired a monitor. Further, although there was no detail about the duration of his attempts to engage with his wife, it is unlikely, that he had taken insulin in anticipation of a meal, when it was not yet available. Again, his experience should have precluded this occurrence.

29. It was submitted that the Applicant may have been disorientated and incoherent because of his low blood/sugar levels, and that combined with alcohol and little food should be considered to have been contributing factors to his alleged conduct. It was claimed that he had neither threatened self-harm or attempted an insulin overdose but instead had been unable to regulate his levels. I accept that some diabetics have difficulty in regulating their blood/sugars.

30. Ms Angelo was present with the Applicant and, according to the COPS Event, the Applicant told her also that he was going to overdose on insulin and take valium to go to sleep, and then had locked himself in his room. Ms Angelo said in cross examination that she could not recall the Applicant saying he was going to overdose on insulin. She said she was speaking to the Applicant through the locked door of his room to check that he was OK because he hadn’t eaten all day. After the ambulance arrived she went to the fridge to get the Applicant some chicken to eat because he was shaking uncontrollably.

31. Ms Angelo said she spoke to the Applicant’s wife when she got her phone back from the Applicant after the Ambulance officers had arrived. She could not remember if his wife said she was concerned for his welfare – there was “a lot going on” and he was having a low. His wife said nothing to her about Russian roulette. Ms Angelo said in cross examination that the Applicant had “become upset” after talking to his wife.

32. The Applicant reportedly told Ms Angelo that if she called the Police he would never speak to her again and Ms Angelo confirmed that the Applicant had used words to that effect. The Applicant said in cross examination that he had a vague recollection of saying that.

33. The Applicant denied having a discussion with Ms Angelo about any of the contents of any messages sent to his wife or mother-in-law, and at no point did he say to her that he was going to overdose on insulin and take valium. He repeated that denial in cross examination. In response to comments in the internal review the Applicant said in his affidavit that he did not attempt suicide or self-harm on 13 December 2017, nor at any time, because his father's death was by way of suicide (using a firearm).

34. He said that his alcohol consumption has reduced significantly since that time; he now consumes on average 4 cans per week, sometimes less on a weekend. He is subject to random drug and alcohol tests in the workplace, where there is a zero tolerance policy. He said he was in that role in 2017-2019. In cross examination he agreed he was “affected” by alcohol on that occasion, but could not recall for how long he and Ms Angelo had been drinking.

35. Ms Angelo was asked in cross examination about her observation that the Applicant had reduced his alcohol intake “in recent years”. She said that, from 2019 the Applicant realised he should make changes. Now he only drinks socially on the weekend. She said that now he might have one or two drinks if she does. She said the Applicant had not “walked around drunk” as he had to be able to operate the business.

36. In a letter dated 13 July 2018, Ms Angelo stated that the Applicant had consumed some alcohol and had experienced an insulin low. In her affidavit, she added that she was not shown copies of Police notebooks or asked to sign any record of any discussion with the Police. Ms Angelo denied reports of the Applicant's threats of self-harm and has never observed any intention by the Applicant to self-harm.

37. That the Police would have erroneously recorded that they had received a report that the Applicant planned to administer an excessive dose of insulin and also recorded that Ms Angelo had told them the same thing, notwithstanding that she can no longer recall if she told Police that, appears to me to be somewhat implausible.

20 November 2018

45. Following numerous arguments, the Applicant’s wife reported to Police on 20 November 2018 that she was being subjected to multiple phone calls from the Applicant who had used strong language in criticising her. She was perceived by Police to be extremely frightened, but she did not want Police intervention as she was concerned that would cause an escalation. She reported that the Applicant had firearms and suffered metal illness. He was also said to engage in heavy alcohol abuse. Police took out an AVO, but it was dismissed when the Applicant’s wife did not want to proceed.

46. The Applicant denied in cross examination that he had been verbally abusive towards his wife but conceded there were “arguments”. He said she was not scared of him. He disagreed he had used the language ascribed to him as it was “vulgar”, but would not say that his wife was telling lies. Again, the Applicant’s wife was not called to give evidence.

5 January 2019

47. On 5 January 2019 the Applicant called Police to his home. He and Ms Angelo were consuming alcohol when she appeared, in his view, to have experienced a panic attack. He told Police that she had attempted suicide on 31 December 2018 and had been released from a mental health facility on about 3 January 2019. Police and Ambulance officers attended and Ms Angelo was taken to hospital, but, when she refused treatment, she was discharged into the care of her mother.

48. In cross examination the Applicant could not recall what Ms Angelo had done, but he was concerned for her safety.

10 August 2019

49. Police attended Ms Angelo’s home in response to two phone calls made by a neighbour to 000 at 2.15am. Notes of the calls recorded as follows:

Nbour (Neighbour) Eilene, from 37... has been kicked in the stomach by her roommate "lmy" both IP… The victim is trying to get the informants husband to remove the POI from her house…

Two children present at the neighbour's house aged 8 and 3

M & FM (male and female) screaming at each other OS 37 - lnfts Husband is also being abused by M POl.

50. These notes were consistent with the 000 recordings that were played in the hearing. The relevant COPS Event records that, on 10 August 2019 the Applicant and Ms Angelo were at Ms Angelo’s home, watching TV and drinking alcohol. Ms Angelo had had 2 drinks but the Applicant was “well intoxicated”. The Applicant was “yelling and screaming” and Ms Angelo said she had asked him to leave. The Applicant gathered his belongings and pushed past Ms Angelo and the argument continued. It was recorded that the Applicant had kicked Ms Angelo in the right leg and chest, following which she grabbed his phone. He was recorded as having grabbed her round the chest and shoulder in an attempt to retrieve the phone. She broke free and he continued to collect his belongings.

51. In his evidence SCON Dickson confirmed the above Police account. In particular he confirmed that “yelling and screaming” were the precise words that Ms Angelo had used in describing the Applicant’s tone. SCON Dickson also confirmed that she had said that the Applicant had kicked her and grabbed her around the chest and shoulder. He said it was his observation of the Applicant that he was intoxicated because he had smelt of alcohol and was unsteady on his feet.

52. Ms Angelo said in cross examination that she had gone to the neighbours at about 2.00 am only to ask her if the neighbour’s husband would help get the Applicant out of her house. She did not think it necessary to call the Police. She denied that she had told the neighbour that the Applicant had kicked her in the stomach. In fact, in her affidavit of 5 July 2022, she said the Applicant did not kick, grab or physically touch her at all. She said she had only told the neighbour that there was an argument and that she needed assistance to get the Applicant out of her house. She said she had a rash on her chest which flares up when she is emotional. She denied it was as a result of the Applicant kicking or grabbing her. Ms Angelo told Police she would not be supplying a statement in relation to what occurred nor would she assist the investigation in any way.

53. In cross examination the Applicant said that it had been a great night up until the argument, but that after that, the night had “turned to shit”. He was observed by Police to be well affected by alcohol such that he could not understand basic instruction nor hold a conversation.

54. Due to the information from Ms Angelo, and the fact that neighbour had called Police as they could clearly hear an altercation, SCON Dickson said he was fearful for Ms Angelo’s safety. Consequently, he applied for a PAVO listing the Applicant as the defendant and Ms Angelo as the person in need of protection. The Applicant was detained and conveyed to Wyong Police Station where he refused to comment further. The PAVO was later withdrawn, Ms Angelo said, because she had never asked for it, and when she was asked at court if she wanted it pressed, she had said that she did not.

55. In cross examination the Applicant said he and Ms Angelo had had a meal at about 8 or 9 pm and “a few drinks” – some wine. They may have continued drinking after that, but he could not really recall. In cross examination Ms Angelo said they consumed 2 bottles of wine, and that, of that, she had consumed less than one bottle. Her account to Police on the night was that she had had only 2 drinks.

56. Both the Applicant and Ms Angelo said in their evidence that there was an argument about a documentary they were watching about whales and they had strong differing opinions. The Applicant disagreed that he had been “yelling and screaming” as Police had recorded, but conceded they may have been “loudly arguing”, but he was not verbally abusing Ms Angelo. Ms Angelo said in cross examination that they were both “yelling and screaming”, but she denied that she had used those words to the Police – only that they had “had an argument”.

57. The Applicant agreed that Ms Angelo had asked him to leave. He packed his clothing and sat in the car. He denied that he had kicked or struck her. He did not know why the neighbour had reported to 000 quite differently. He could not recall the neighbour’s husband attending Ms Angelo’s home, as had been reported in the call. He did not see Ms Angelo go to the neighbour’s because he was packing his clothes. He could not explain why Ms Angelo reportedly told the neighbour that he had kicked her. He also denied he had grabbed Ms Angelo around the chest, because, he said, he has never been violent towards women.

58. It is difficult to reconcile the differing accounts of what occurred that evening. On the one hand, Ms Angelo claims she sought the assistance of her neighbour solely to remove the Applicant from her house. The neighbour’s account in the 000 call, however added that Ms Angelo had told her that she had been kicked in the stomach by the Applicant. The neighbour reported that Ms Angelo and the Applicant were “screaming at each other”, and Ms Angelo appeared to accept that they were. The Applicant, however denied that, claiming that they were only “loudly arguing”, which, in view of Ms Angelo’s evidence and the observations of the neighbour, appears to be an attempt to downplay the extent of the dispute. I observe that, on the evidence of SCON Dickson and also Ms Angelo the Applicant was well-affected by alcohol, so the Applicant’s self-assessment of the dispute is given less weight.

59. The neighbour, in my view, had no cause to overstate what she was told by Ms Angelo; I accept that her 000 call was virtually contemporaneous with Ms Angelo’s appearance at her home. The Applicant’s counsel was critical of the Respondent for not calling the neighbour, but in my view, her phone calls to 000 adequately described the salient features of what she was told and what she saw and heard, including that, from her own observation, reporting to Police to the effect that the argument between the Applicant and Ms Angelo had become heated. The evidence of the Senior Constable, the Police record from the scene, the record of the 000 calls and the audio of the calls were all consistent.

60. Concerningly, this conduct occurred at a time when the Applicant was awaiting approval of his firearms licence application.

Dr Ahmed, consultant psychiatrist

61. In a report dated 10 June 2018 Dr Tanveer Ahmed, consultant psychiatrist, wrote that he had been treating the Applicant “for several years”; the Applicant said he saw him about every 3 months. The doctor wrote that the Applicant first presented with difficulties regulating frustration and associated self-medication with alcohol. The major stressor, the doctor wrote, was a family financial court dispute, although the Applicant said he had consulted the doctor because of work stress. The Applicant said the litigation had only recently concluded.

62. The Applicant said he was anxious because of his workload and managing multiple projects and he and the doctor had “just chatted”, because they were both “ran a business”. The Applicant said he did not tell the doctor he drank alcohol for stress, only that he drank 2-10 drinks at parties. The Applicant said in his evidence that he did not know what the doctor meant by his observations about alcohol because he only drank “here and there”. He denied he has ever had any problem with alcohol; he said there was never a diagnosis of an alcohol-related condition.

63. The doctor wrote the Applicant was responding well to treatment on multiple medications including an antidepressant and a mood stabiliser, which the Applicant said, are now managed by his GP. Dr Ahmed considered the Applicant’s mental health to be stable and well-managed and would not negatively impact upon his ability to exercise continuous or responsible control over firearms; he considered there was no risk to public safety.

64. In another report dated 24 April 2019 the doctor wrote that he had reviewed letters from 2 other medical practitioners, Drs Teoh and Zintars from “a decade ago”, and their views (unspecified) were consistent with his, that the Applicant experiences difficulty regulating mood at times and the origin was primarily personality and not bipolar disorder. Overall, I found Dr Ahmed’s second report to be unhelpful, other than to confirm that the Applicant has experienced mental health difficulties for some time.

65. The Applicant could not recall either of those doctors, but did not deny that he had seen them. He did not know if they were psychiatrists, but did not think they were GPs. He denied any psychiatric care before Dr Ahmed and said he would discuss his anxiety and stress with his GP, Dr Malek as he did not want to “bottle things up” because of his family history. It was Dr Malek, who, “after many years”, referred him to Dr Ahmed in relation to his anxiety and his mood. The Applicant said he has not seen Dr Ahmed since 2019 as he does not consider it necessary and his treatment is being managed by Dr Malek. No report from Dr Malek was provided. It appears that he last saw Dr Ahmed prior to the events of August 2019. That he does not perceive the necessity to continue to obtain treatment may suggest a lack of insight.

66. Dr Ahmed referred to the Applicant as having limited impulse control, although the Applicant denied this and said it could only relate to stress at work, such as whether to get rid of troublesome clients.

67. In cross examination the Applicant had denied that he had ever had an alcohol problem, although said he had become intoxicated at gatherings. He denied ever becoming violent and aggressive when using alcohol. He said he can go for “days or weeks” without alcohol. He reduced his intake for health reasons, and he wanted to buy a boat so the expense was an issue. He just does not buy alcohol, he said. He might have 4-6 drinks over a weekend whereas, previously, he would have a couple of drinks a day and more at a party. His estimate of his prior drinking regime, is, it seems conservative. The evidence of the incidents referred to also suggest that this is an under-estimate.

68. There was no up-to-date psychiatric evidence. It is clear though, on the Applicant’s evidence, that he has been under psychiatric care for some time and he continues to be medicated with an antidepressant and a mood stabiliser.

Is the Applicant a fit and proper person to hold a firearms licence?

69. Section 11(3) of the Act requires that the Tribunal be satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

70. The question whether a person is “fit and proper” is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].

71. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she “is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.” In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

72. The Respondent contended that the Tribunal should not be satisfied the Applicant is a fit and proper person who can be trusted to have possession of firearms, in particular, that the Applicant may not personally exercise continuous and responsible control over firearms as a result of his way of living or domestic circumstances: s 11(4)(a) of the Act.

73. In LY v Commissioner of Police, NSW Police [2004] NSWADT 115 at [41]- [43], the Tribunal held that the Commissioner, and hence the Tribunal on review, must objectively be satisfied, from established facts, of the matters set out in s 11(4)(a) of the Act, that is, whether the Applicant’s way or living or domestic circumstances are such that he may not personally exercise continuous and responsible control over his firearms.

69. In Grant v Commissioner of Police [2020] NSWCATAD 158 Dr Lucy SM found the applicant in that matter to be a fit and proper person notwithstanding a criminal history of trespassing, illegal hunting, reckless driving, driving whilst suspended, speeding, fighting and cultivating cannabis. In Newman v Commissioner of Police [2018] NSWCATAD 17 NS Isenberg SM issued a licence to an applicant who had previously been a long term member of the Gladiators OMCG. These cases demonstrate that, notwithstanding objectionable conduct, an applicant may still be considered to be a fit and proper person to hold a firearms licence.

70. While the Applicant may have had a volatile relationship with Ms Angelo and with his wife from time to time, I do not consider the evidence sufficient to satisfy me that the Applicant should not have a firearms licence because of his domestic circumstances. I observe that he has no criminal record, no AVOs and has never resorted to inappropriate use of a firearm.

71. I do not consider that there is reasonable cause to believe that the Applicant may not exercise continuous and responsible control over firearms because of his living or domestic circumstances.

Public interest

77. The Respondent also contended that it is not in “the public interest” for the Applicant to hold a firearms licence: s 11(7) of the Act.

78. The term is not expressly defined in the Act. It is well-settled though that “the public interest” is to be considered relative to the objects of the Act and the firearms licensing system, with public safety being give paramount consideration: see, for example, Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]. 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 ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. In that regard, past conductof the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141].

79. The underlying principles stated in s 3(1) of the Act emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety; strict controls on the possession and use of firearms are imposed in the interests of public safety. Where there is the possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm: Lee v Commissioner of Police [2020] NSWCATAD 144 at [94].

80. The Tribunal has referred many times to Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 (Ward) where Hennessy DP 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 any risk to public safety. The question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near absolute negative, but, in a nuanced way, taking account of all the circumstances, including attitudes, 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]. The principle in Ward is about identifying the possible risks to the public, and 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] and AML v Commissioner of Police, New South Wales Police Force [2013] NSWADT 5 at [7].

81. The Applicant said that he requires a licence for recreational hunting/vermin control and rural occupation. The rural property was owned by his family; it is unclear if it is still family owned. The Applicant admitted that while he did not hold a licence he had “adjusted the sights” on his firearms and that he also shot a boar. He agreed he should not have done that. He also said in his affidavit that the decision to refuse his firearms licence application will potentially impact on the future growth of his business, and the possibility of branching into additional areas, for example, cash-in-transit and becoming an armorist, both of which he had considered and explored in the past for his business expansion. In addition, his business has at times tendered for defence and government projects. Should the decision to refuse his firearms application be upheld, he said, then the chances of being awarded and or supervising any projects of this nature will likely be affected if the tender were to be successful; he would potentially be rejected if he needed a security clearance, and he was concerned about the impact of the decision on such a clearance. In cross examination he also said that he was unable to apply for “culling” jobs as a sideline to his business. There was no evidence that any of these ventures were more than vague ideas for the expansion of his business. In any event, the type of licence for which he has applied would not assist in any of these planned activities.

82. Private interests such as those described by the Applicant however, are not the 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. As I have observed many times, these matters include public protection, public 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].

83. The Applicant seeks a firearms licence against a background of long-standing mental health issues, which appear to have been exacerbated by excessive alcohol consumption. For some years, on the Applicant’s evidence, he was treated by Dr Ahmed, consultant psychiatrist and he continues to be medicated with an antidepressant and a mood stabiliser.

84. The Applicant’s evidence was that he has never had an alcohol problem. He denied ever becoming violent and aggressive when using alcohol, but this is clearly contrary to the objective evidence about the events of December 2017 and August 2019. Before cutting back he would have a couple of drinks a day and more at a party, he said. He said he told the doctor that he drank 2-10 drinks at parties and did not drink to alleviate stress. The Applicant, it appears, was not altogether forthcoming with the doctor. The Applicant continues to deny he has or has ever had an alcohol problem. He was less than candid with Dr Ahmed: cf EEN v Commissioner of Police, NSW Police Force [2020] NSWCATAD 87. Similarly, before me, appeared to downplay his level of alcohol consumption. The objective evidence is that he has, at least up till 2019 had on occasions requiring Police intervention drunk to excess alcohol and become argumentative and aggressive. While Dr Ahmed considered the Applicant to pose no risk, this was in the context of his having been misled as to the extent of the Applicant’s alcohol consumption, and on the assumption that the Applicant remains compliant with the prescribed medication.

85. The Applicant claimed to have significantly reduced his alcohol consumption since December 2017. Clearly, he had not appreciably reduced his alcohol intake in 2019, unless, of course, his estimate of his 2017 consumption was overly conservative. The Applicant claimed that in 2017 and 2019 his workplace had a zero tolerance policy with respect to alcohol. Nonetheless he was possibly prepared to jeopardise his valuable business contracts by the consumption of excessive alcohol on weekdays – 17 December 2017 and 20 November 2018. Further, there was no evidence that he has undergone rehabilitation, attended Alcoholics Anonymous meetings or individual counselling cf Turley v Commissioner of Police, NSW Police Force [2012] NSWADT 162.

86. Concerningly, Dr Ahmed referred to the Applicant as having limited impulse control, although the Applicant denied this and said it could only relate to work stress. I prefer the doctor’s assessment to that of the Applicant, especially given that the Applicant appears to have been less than candid with the doctor in relation to his alcohol consumption. Further, the incidents of December 2017 and August 2019 tend to confirm that the Applicant, when affected by alcohol, has little control.

87. As to whether the Applicant may have threatened to attempt suicide by playing “Russian roulette” and allegedly saying he would be “gone tomorrow” and that he was going to overdose on insulin, the Applicant could not explain where the information which the Police had had come from. The Applicant and his wife have apparently reconciled. It might have been expected, given that the Applicant was so vehement in his denial that his wife could have been called to clarify what she had told Police. The Applicant said the incident had never been discussed between them, and he would not ask her to provide a statement, as they don’t want to re-live the experience. In view of their reconciliation, I do not accept this as a reasonable explanation. While Jones v Dunkel (1959) 101 CLR 98 does not apply in Tribunal proceedings, a failure to lead evidence impacts on the case that is presented to the Tribunal: Addison v Commissioner of Police, NSW Police Force [2019] NSWCATAD 99 at [46].

88. In Bailey v Commissioner of Police, NSW Police Force [2022] NSWCATAD 214 at [42] I recently observed that I generally agreed with the principle in Grenfell v Commissioner of Police [2021] NSWCATAD 124 (Grenfell), where:

42. ....the Tribunal recently accepted that, in the context of the scheme under the Act, domestic violence incidents are a serious cause for concern, even where the alleged perpetrator is not convicted of an offence or where, as here, there is no misuse of afirearm; see [103]. In Grenfell, the Tribunal concluded, at [104] that it was not in the public interest for the Applicant to hold a firearms licence in circumstances where the Applicant was subject to a IADVO that was, as here, later withdrawn.

89. I accept that the Applicant has no convictions for any domestic violence, or indeed, any other offences. There was clear evidence though that the Applicant has, at least in recent years, become volatile, especially when affected by alcohol. There were allegations of domestic violence. These frequently do not result in convictions, and AVOs are often withdrawn because the alleged victims do not wish to proceed. Further, victims of domestic violence do not always report incidents or pursue proceedings because of fear of repercussions: per Manning v Commissioner of Police [2020] NSWCATAD 111 at [51]. I also observe that the Applicant and Ms Angelo are long term friends and have also worked together for some time; she and the Applicant’s wife are the only fulltime employees of the Applicant. Ms Angelo appears also to have mental health issues.

90. Grenfell also concerned an Applicant who had a propensity for aggression and threats of violence and actual violence, especially after heavy alcohol consumption. That had been the case and the applicant in that matter had taken no steps to address that issue. The Tribunal in Grenfell was satisfied that this would probably remain an issue and therefore there was a risk to the public should the Applicant be given access to the firearms. This was despite the Applicant never misusing firearms or threatening to do so.

91. In this matter, like in Grenfell, there are a number of reported domestic incidents recorded in involving the Applicant, all of which record the Applicant as having heavy consumption of alcohol. From the available evidence, I am not satisfied, in view of the Applicant’s obfuscation in relation to his alcohol consumption history that this is no longer an issue. His lack of preparedness to admit that he has had an alcohol problem, or that he misled Dr Ahmed adds to my concern.

92. In Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances and that only real and appreciable risk needs to be taken into account. It is clear that the overriding concern of the public interest in this context is the maintenance of public safety. Any real and appreciable risk to public safety cannot be outweighed by the Applicant’s interest in holding a firearms licence. His conduct, in my view, establishes a real and appreciable risk to public safety.

Conclusion

93. My conclusion is therefore that while the Applicant is a fit and proper person to hold a firearms licence, it would be contrary to the public interest for him to do so at this time. This does not, of course, preclude him from making another application. Such an application would be likely to be assisted by up-to-date detailed psychiatric evidence, and a fulsome account of his present level of alcohol consumption and the steps that he has taken to address his consumption. That of course, requires an acknowledgement that he has or has had an alcohol problem.

94. In all the circumstances, because of the concerns expressed above, I am reasonably satisfied, that it is not in the public interest for the Applicant to hold a firearms licence at this time.

DECISION

1. The time for filing an Application for Review to this Tribunal is extended to 21 April 2022.

2. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 24 October 2022