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Johnston v Commissioner of Police

Johnston v Commissioner of Police

Case [2021] NSWCATAD 231 11 August 2021

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Johnston v Commissioner of Police [2021] NSWCATAD 231
Hearing dates: 3 April 2021
Date of orders: 11 August 2021
Decision date: 11 August 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: Emeritus Prof GD Walker, Senior Member
Decision:
Decision under review affirmed

Catchwords:
LICENSING – firearms licensing – licence revocation -transportation of firearm – failure to notify additional ground for licence – public interest.

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Firearms Act 1996 (NSW)
Firearms Regulation 2017 (NSW)

Cases Cited:
Artridge v Commissioner of Police [2021] NSWCATAD 188;
Bottomley v Commissioner of Police [2005] NSWADT 211;
Briginshaw v Briginshaw (1938) 60 CLR 316;
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 42;
Carl Zeiss Stiftung v Rayner and Keeler (No. 2) [1967] 1 AC 853;
Constantin v Commissioner of Police [2013] NSWADTAP 16;
Re Appeal of Diamond (Unreported) District Court 5 October 2017;
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60;
Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70;
Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59;
Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31;
McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354;
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354;
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10;
Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272;

Category: Principal judgment
Parties: Luke M Johnston (Applicant)
Commissioner of Police (Respondent)
Representation: Solicitors:
Hartmann & Associates (Applicant)
Maddocks Lawyers (Respondent)

File Number(s): 2020/00111698

REASONS FOR DECISION

The applicant Mr Luke Mark Johnston applied to this tribunal on 14 April 2020 for review of a decision by the respondent Commissioner on 2 April 2020 to revoke his category AB firearms licence. The applicant had been issued with the licence for the reasons of recreational hunting and vermin control on 14 July 2015, to expire (after renewals) on 14 July 2020, but the Commissioner revoked it on 12 December 2019, that decision being affirmed following an internal review on 2 April 2020.
The applicant had earlier been warned by police about possible breaches of the safe storage requirements in s 39 of the Firearms Act. On 5 April 2007, he was found in the course of an RBT traffic stop to be carrying three rifles with the bolts fitted. Police believed he was not taking reasonable precautions to ensure their safekeeping and issued a warning.
On 9 July 2009 when stopped by police in Nyngan he was found to be transporting a firearm that was loaded and unsecured. He was again warned about his failure safely to store his firearms. At that time, before the enactment of cl 149 of the…

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 Johnston v Commissioner of Police

Details

AGLC: Johnston v Commissioner of Police [2021] NSWCATAD 231
Case: [2021] NSWCATAD 231
Decision Date: 11 August 2021

CaseChat Overview and Summary

The case of Johnston v Commissioner of Police involved the applicant, Mr Johnston, who appealed against the revocation of his firearms licence by the Commissioner of Police. The dispute centred on whether the Commissioner had correctly revoked the applicant's licence on the grounds of failing to notify the Commissioner of an additional ground for the licence. The matter was heard in the Supreme Court of New South Wales.

The central legal issues that the court had to address were whether the failure to notify constituted a breach of the applicant's licence conditions and whether such a breach justified the revocation of his licence. The court also needed to consider whether the revocation was in the public interest. Specifically, the court examined whether the failure to notify the Commissioner of an additional ground was a significant breach warranting such a severe penalty.

The court examined the statutory framework governing firearms licensing in New South Wales and the conditions attached to the applicant's licence. It held that the failure to notify the Commissioner of an additional ground indeed constituted a breach of the licence conditions. The court found that this breach was significant and warranted the revocation of the licence. The court also concluded that the revocation was in the public interest, as it was necessary to maintain public safety and confidence in the licensing system. Consequently, the court upheld the Commissioner's decision to revoke the applicant's licence.

Orders

Orders of the court

Decision under review affirmed

Background

Background to the litigation

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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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Citations

Johnston v Commissioner of Police [2021] NSWCATAD 231

Most Recent Citation

Selmes v Commissioner of Police, NSW Police Force [2021] NSWCATAD 360

Cases Citing This Decision

Elley v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 351
Citation 1 (Para 56)

…g whether a person should have a licence”. But in that case, the applicant had stored .22 rifles under his bed. Johnston v Commissioner of Police [2021] NSWCATAD 231, [45], also cited by the respondent, had made the same point, but in that case a firearm had been mounted across the dashboard of the applicant’s vehicle…
Margules v Commissioner of Police [2022] NSWCATAD 96
Citation 2 (Para 8)

…aking the correct and preferable decision the Tribunal is not limited as the Applicant submits: see discussion in Johnston v Commissioner of Police [2021] NSWCATAD 231 and Selmes v Commissioner of Police, NSW Police Force [2021] NSWCATAD 360.…
Selmes v Commissioner of Police, NSW Police Force [2021] NSWCATAD 360
Citation 3 (Para 65)

…Wales [2014] NSWCATAD 59; Cramp v Commissioner of Police, New South Wales Police Force [2020] NSWCATAD 133 at [67]; Johnston v Commissioner of Police [2021] NSWCATAD 231 at [68], [72].…

See all citing cases →

Cases Cited

Artridge v Commissioner of Police NSW Police Force [2021] NSWCATAD 188
Citation 1 (Para 31)

…conclusive and amounted to little more than suspicion. The respondent’s reliance on Artridge v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 188, [72] did not assist, as the tribunal had decided the matter in favour of the applicant, and specifically stated that there was no evidence of risk in…
Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272
Citation 2 (Para 44)

…te defence for a licensee failing to comply with prescribed requirements. Thus, in Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272, [65], the tribunal accepted that the applicant was in breach of cl 149 when he had been found sitting in his parked vehicle with his firearm visible in…
Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42
Citation 3 (Para 63)

…aw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the t…
Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31
Citation 4 (Para 67)

…ven though the particular offences charged have not been proved or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] – [64].…
Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59
Citation 5 (Para 52)

…rine of issue estoppel could not apply in the present proceedings, citing my decision in Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59, [58], in which I said that the tribunal could accept evidence relating to the circumstances surrounding an offence in connexion with its evaluation…
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Citation 6

…Pty Ltd v SafeWork NSW [2017] NSWCA 42; Carl Zeiss Stiftung v Rayner and Keeler (No. 2) [1967] 1 AC 853; Constantin v Commissioner of Police [2013] NSWADTAP 16; Re Appeal of Diamond (Unreported) District Court 5 October 2017; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Esterman v Commissione…
Bottomley v Commissioner of Police [2005] NSWADT 211
Citation 7 (Para 45)

…, they can evidence an attitude that is still significant when determining whether a person should have a licence: Bottomley v Commissioner of Police [2005] NSWADT 211, [18] – [19].…
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Citation 8 (Para 63)

…International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] – [12]. They do, however, provide guidance for the tribunal’s exercise of jurisdiction.…
Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91
Citation 9 (Para 32)

…applicant any less safe and could not reach the threshold for revoking a licence. In Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91, [32] Lees JM had pointed out that not all contraventions or breaches warranted the exercise of the power to revoke: “There must be something more to b…
McDonald v Director-General of Social Security [1984] FCA 59
Citation 10 (Para 61)

…n decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.…
McDonald v Director-General of Social Security [1984] FCA 57
Citation 11 (Para 61)

…to make its own decision and there is no presumption that the Commissioner’s decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.…
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247
Citation 12 (Para 68)

…ntrary, the doctrine of issue estoppel did not apply in such proceedings, making reference to Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, 359, in which the Federal Court explained that issue estoppel does not apply in criminal proceedings, and the tribunal could examine the circumstances…
Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39
Citation 13 (Para 60)

…r the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.…
Briginshaw v Briginshaw [1938] HCA 36
Citation 14 (Para 63)

…Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] – [91], [127];…
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Citation 15 (Para 63)

…ersarial proceedings. There is accordingly, no burden or onus of proof on either party ( Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] – [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing In…
[1967] 1 AC 853 [1967] 1 AC 853
Citation 16 (Para 28)

…Firearms Act. The three preconditions that must exist before issue estoppel can apply, as laid down in Carl Zeiss Stiftung v Rayner & Keeler (No. 2) [1967] 1 AC 853, 935, were that the first decision was final, the same question has been decided and between the same parties, or at least parties with the same lega…

Legislation Cited

Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 60)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention
Evidence Act 1995 (Cth)
1 mention (from Para 63)
Firearms Act 1996 (TAS)
1 mention

Medium Neutral Citation:	Johnston v Commissioner of Police [2021] NSWCATAD 231
Hearing dates:	3 April 2021
Date of orders:	11 August 2021
Decision date:	11 August 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Emeritus Prof GD Walker, Senior Member
Decision:	Decision under review affirmed
Catchwords:	LICENSING – firearms licensing – licence revocation -transportation of firearm – failure to notify additional ground for licence – public interest.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW)
Cases Cited:	Artridge v Commissioner of Police [2021] NSWCATAD 188; Bottomley v Commissioner of Police [2005] NSWADT 211; Briginshaw v Briginshaw (1938) 60 CLR 316; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 42; Carl Zeiss Stiftung v Rayner and Keeler (No. 2) [1967] 1 AC 853; Constantin v Commissioner of Police [2013] NSWADTAP 16; Re Appeal of Diamond (Unreported) District Court 5 October 2017; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70; Green v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 59; Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31; McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354; Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10; Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 272;
Category:	Principal judgment
Parties:	Luke M Johnston (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Hartmann & Associates (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	2020/00111698