Katelaris v Commissioner of Police

[2022] NSWCATAD 171

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Katelaris v Commissioner of Police [2022] NSWCATAD 171

Hearing dates:

10 May 2022

Date of orders:

25 May 2022

Decision date:

25 May 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Andelman L, Senior Member

Decision:

(1) Pursuant to s 49 of the Civil and Administrative Tribunal Act 2013, the hearing of the substantive application be conducted, insofar as it relates to the Confidential Material, in the absence of the Applicant, any legal representative for the Applicant and the public.

(2) Pursuant to s59 of the Administrative Decision Review Act 1997, the Respondent is not required to lodge copies of the documents, that being the Confidential Material with the Tribunal in accordance with the s58 of the Administrative Decision Review Act 1997;

(3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the Confidential Material is prohibited.

(4)Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the Confidential Material, is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal; and.

(5) Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication and reporting of the private hearing of this application, including any evidence given is prohibited.

Catchwords:

LICENSING – firearm - confidentiality application

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:

Brennan v State of New South Wales [2006] NSWSC 167

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16

Grant v Commissioner of Police [2020] NSWCATAD 158

Pemberton v Commissioner of Police [2022] NSWCATAD 109

Category:

Procedural rulings

Parties:

Dr Andrew Katelaris (Applicant)
Commissioner of Police (Respondent)

Representation:

Solicitors:
Applicant self-represented
Bartier Perry Lawyers (Respondent)

File Number(s):

2021/00365675

REASONS FOR DECISION

Application for a firearm licence

1. On 16 October 2021, Dr Katelaris lodged an application for a Category A firearm licence. On 20 December 2021, his application for Category A licence was refused by the Commissioner of Police (Commissioner) in reliance on s11(4)(a) and 11(7) of the Firearm Act 1996.

2. An Order was made by this Tribunal on 15 February 2022 dispensing with the requirement for an internal review pursuant to s55(6) of the Administrative Decisions Review Act 1997 (ADR Act).

This application

3. On 8 March 2022 this Tribunal made orders that the Commissioner file any open and confidential material in support of an application for orders under s59 of the ADR Act and s64 of the Civil and Administrative Tribunal Act 2013 (CAT Act). The matter was listed before me on 10 May 2022. The hearing was part open and part closed. The closed hearing proceeded in the absence of Mr Katelaris.

4. The Commissioner seeks the following orders:

(a) Pursuant to s49(2) of the CAT Act, the hearing of this application be conducted in the absence of the Applicant, the legal representative for the Applicant, and the public;

(b) Pursuant to s59 of the ADR Act. the Respondent is not required to lodge copies of the documents, that being the Confidential Material specified in the Confidential Statement with the Tribunal in accordance with the s58 of the ADR Act.

(c) Pursuant to s 64(1)(c) of the CAT Act, the publication of the Confidential Material and the Confidential Statements prohibited.

(d) Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the Confidential Material and Confidential Statements, or matters contained in the Confidential Material and Confidential Statements, is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal; and.

(e) Pursuant to s 64(1)(b) and s 64(1)(c) of the CAT Act, the publication and reporting of the hearing of this application, including any evidence given is prohibited.

Relevant Law

5. In determining whether the Commissioner should be permitted to rely on confidential materials at the final hearing requires an examination of ss 48, 58,59 of the ADR Act and ss 49(2) and 64 of the CAT Act.

6. These provisions make clear that the starting point, the presumption made by the Tribunal is that the Tribunal’s hearings are open to the public. Section 49(1) CAT Act applies the principle of open justice and the rules of procedural fairness. However, the provisions provide an express exception to the usual rule that all evidence filed by one party is provided to the other party and the hearing is public. The Tribunal may make an order that evidence be withheld from a party and the hearing is conducted in the absence of a party if the Tribunal is satisfied this it is ‘desirable’; ss 49(2) and 64(1) of the CAT Act.

7. Section 49(2) of the CAT Act gives the Tribunal discretion to order that a hearing is conducted in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

8. The relevant authorities were recently summarised in Pemberton v Commissioner of Police [2022] NSWCATAD 109 by Senior Member Isenberg and do not need to be rehearsed again in this decision.

9. In considering whether it is ‘desirable’ to restrict disclosure concerning proceedings, where material is confidential and it exposes information about ongoing or future police investigations, identifies informants or discloses police methodology there is public interest in non-disclosure of confidential information. Brennan v State of New South Wales [2006] NSWSC 167 at [51]-[52].

10. The resultant unfairness caused to the applicant arising from him or her being unable to know or respond to information relied on by the Commissioner and considered by the Tribunal is not a reason to not make a confidentiality order as there is an explicit provisions for such an outcome in the CAT Act and ADR Act.

11. As stated in Grant v Commissioner of Police [2020] NSWCATAD 158 at [23], orders for confidentiality disentitling the applicant to know the evidence against him or her, does not lead the Tribunal to giving weight to evidence where it is in the nature of speculation, from an anonymous source or where adverse evidence could have been but was not put to the applicant during cross examination.

Evidence

12. In support of this interlocutory application, the Commissioner relied on the statement of Ms Kylie Owen dated 29 March 2022 and written submissions. Dr Katelaris relied on a submission dated 6 April 2022. Both parties had an opportunity to make oral submissions.

13. Ms Owen is a Senior Constable with a Detective designation. She has been a police officer for 18 years. Ms Owens has viewed the confidential material and says that the confidential material is only accessible to law enforcement personnel with a certain clearance. Ms Owen is of the opinion that the confidential information is subject to a claim of public interest immunity.

14. Dr Katelaris is a medical doctor with a doctorate in immunopathology. He submitted that references to ‘community policing model’ referred to by Ms Owen can be compared to the East German system of internecine domestic spying and is not something that the Tribunal would not support. Dr Katelaris submitted that the Commissioner is seeking confidentiality order to conceal covert, illegal activities of surveillance and that unless there is overwhelming evidence that he would harm anonymous informants, their request for suppression order must fail.

15. The open hearing was followed by a closed hearing. The material and submissions presented in the closed hearing by the Commissioner (Confidential Material) were given on a confidential basis.

Consideration

16. The Tribunal has considered the Confidential Material and is satisfied that it discloses police methodology, current criminal investigations and reveals confidential sources of material.

17. There is no evidence to support Dr Katelaris’ submission that the Commissioner has engaged in illegal activities. The relevant test for the grant of a confidentiality order does not require the Commissioner to satisfy the Tribunal that there is overwhelming evidence that an anonymous source would be harmed.

18. This decision deals with the question of confidentiality and makes no findings about the credibility of the Confidential Material relied on by the Commissioner. This will be a matter that will be dealt with at the substantial hearing.

19. I have also taken into account that in part the Commissioner in refusing to issue a firearm licence relies on s11(7) of the Firearm Act which concerns public interest. Section 11(7) raises broad considerations about protecting the public and identifying possible risks to public which raises issues going beyond the character of Dr Katelaris to be taken into account and may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

20. The Confidential Material suggests that the circumstances of this case are sufficiently special that the making of the orders sought is “desirable” within the meaning of ss 49(2) and 64(1) of the CAT Act.

Orders

21. The Tribunal makes the following Orders:

1. Pursuant to s49(2) of the Civil and Administrative Tribunal Act 2013, the hearing of the substantive application be conducted, in so far as it relates to the Confidential Material, in the absence of the Applicant, any legal representative for the Applicant and the public;

2. Pursuant to s59 of the Administrative Decision Review Act 1997, the Respondent is not required to lodge copies of the documents, that being the Confidential Material with the Tribunal in accordance with the s58 of the Administrative Decision Review Act 1997;

3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the Confidential Material is prohibited.

4. Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the Confidential Material, is restricted to the Respondent, the legal representatives for the Respondent and the Tribunal; and.

5. Pursuant to s 64(1)(b) and s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication and reporting of the private hearing of this application, including any evidence given is prohibited.

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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: 25 May 2022