Joseph v Commissioner of Police, New South Wales Police Force

Case [2017] NSWCA 31

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Joseph v NSW Commissioner of Police [2017] NSWCA 31
Hearing dates: 7 February 2017
Decision date: 06 March 2017
Before: Basten JA at [1];
Macfarlan JA at [23];
Ward JA at [75]
Decision:

(1) Application for leave to appeal dismissed with costs.
(2) Order, by consent, that the time for Mr Joseph to file his Notice of Intention to Appeal be extended to the date upon which it was in fact filed.

Catchwords:

ADMINISTRATIVE LAW – refusal of an application for the issue of a firearms dealer licence under the Firearms Act 1996 (NSW) – evidence relating to the applicant’s allegedly fraudulent conduct – criminal charges withdrawn but conduct established on the balance of probabilities – conduct relevant to the licence application – a lesser standard of proof than the criminal standard could be applied in making findings concerning the conduct – relevance of reasons for withdrawal of criminal prosecution

ADMINISTRATIVE LAW – refusal of an application for the issue of a firearms dealer licence under the Firearms Act 1996 (NSW) – whether decision maker obliged to refer to relevant material where no express or implied statutory obligation to consider it and adequate reasons for the decision given
Legislation Cited: Administrative Decisions Review Act 1997 (NSW), ss 114, 115
Administrative Decisions Tribunal Act 1997 (NSW), ss 53, 55, 113
Civil and Administrative Tribunal Act 2013 (NSW), ss 7, 32, 80, 83, Sch 1, cls 6, 10
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8
Evidence Act 1995 (NSW), s 128
Firearms Act 1996 (NSW), ss 8, 10, 11
Supreme Court Act 1970 (NSW), s 48
Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7
Commissioner of Police v Joseph [2015] NSWCATAP 9
Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55
Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34
Joseph v Commissioner of Police, NSW Police Force [2014] NSWCATAD 46
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518; [2003] HCA 11
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9
Category:Principal judgment
Parties: Marsleno Joseph (Applicant)
Commissioner of Police (NSW) (Respondent)
Representation:

Counsel:
Mr G Laughton SC / Mr K Dailly (Applicant)
Mr C Mantziaris (Respondent)

  Solicitors:
Mainstone Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)
File Number(s): CA 2016/207225
 Decision under appeal 
Court or tribunal:
New South Wales Civil and Administrative Tribunal
Jurisdiction:
Appeal Panel
Citation:
[2015] NSWCATAP 9 and [2016] NSWCATAP 124
Date of Decision:
10 February 2015 and 9 June 2016
Before:
K P O’Connor AM, ADCJ, Deputy President, Appeals;…

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AGLC
Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31
Case
[2017] NSWCA 31
Decision Date

CaseChat Overview and Summary

The New South Wales Court of Appeal considered an appeal by Mr Joseph against the Commissioner of Police, New South Wales Police Force, concerning the refusal of Mr Joseph's application for a firearms dealer licence. The refusal was based on evidence of Mr Joseph's allegedly fraudulent conduct, despite criminal charges related to this conduct having been withdrawn.

The Court was required to determine whether the decision-maker was entitled to find that Mr Joseph had engaged in fraudulent conduct on the balance of probabilities, even though the criminal charges were withdrawn. It also considered whether the decision-maker was obliged to refer to all relevant material when making the decision, particularly in the absence of an express or implied statutory obligation to do so, provided adequate reasons for the decision were given.

The Court reasoned that a lesser standard of proof, namely the balance of probabilities, could be applied in administrative proceedings to establish conduct relevant to a licence application, even if that conduct had also been the subject of criminal charges. The reasons for the withdrawal of the criminal prosecution were not determinative of the findings of fact in the administrative review. Furthermore, the Court held that where adequate reasons for a decision are provided, there is no general obligation for the decision-maker to refer to every piece of material before them, especially where no specific statutory duty to do so exists.

The application for leave to appeal was dismissed with costs. By consent, the time for Mr Joseph to file his Notice of Intention to Appeal was extended to the date it was actually filed.

Orders

Orders of the court

(1) Application for leave to appeal dismissed with costs.

(2) Order, by consent, that the time for Mr Joseph to file his Notice of Intention to Appeal be extended to the date upon which it was in fact filed.

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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