Lucano v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 301

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lucano v Commissioner of Police, NSW Police Force [2024] NSWCATAD 301

Hearing dates:

20 – 21 August 2024

Date of orders:

11 October 2024

Decision date:

11 October 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Robinson, Senior Member

Decision:

(1) The decision under review is affirmed.

(2) The Applicant is to provide to the Respondent and the Tribunal, any submissions and documents they intend to rely on in response to the costs application by 4pm 18 October 2024.

(3) The Respondent is to provide to the Applicant and the Tribunal, any submissions and documents they intend to rely on in relation to the costs application on or before 4pm on 25 October 2024.

(4) Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013, parties are to include in their written submissions on costs whether a hearing in relation to the costs application can be dispensed with.

Catchwords:

ADMINISTRATIVE LAW – administrative review - firearms licence - public interest – fit and proper - licence previously revoked and reinstated – public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Police Act 1990

Cases Cited:

AIN v Medical Council of New South Wales [2015] NSWCATAP 241

AJO v Director-General of Transport [2012] NSWADT 101

Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Briginshaw v Briginshaw (1938) 60 CLR 316

Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42

Campbell v Commissioner of Police, New South Wales Police Force [2022] NSWCATAC 12 at [41] and Agarwal v Commissioner of Police, NSW Police Force [2022] NSWCATAD 331 at [163].

Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63

Cong v Commissioner of Police [2022] NSWCATAD 233

Constantin v Commissioner of Police [2013] NSWADTAP 16

Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30

Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134

Ebner v The Official Trustee in Bankruptcy [2000] 205 CLR 337

Ford v Commissioner of Police [2022] NSWCATAD 87

Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127

icare NSW v Webb [2023] NSWCATAP 192

Jackson v University of New South Wales [2019] NSWCATAD 224

Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31

Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368

Lucano v Commissioner of Police, NSW Police Force [2010] NSWADT 320

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

Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Moore v Southern NSW Local Health District [2024] NSWCATAD 72

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

Page v Commissioner of Police [2020] NSWCATAD 163

Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357

Priest v State of New South Wales [2006] NSWSC 1281

Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156

Sterjovski v Director-General, Department of Transport [2002] NSWADT 10

Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93

Ward v Commissioner of Police [2000] NSWADT 28

Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75

YG and GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None cited

Category:

Principal judgment

Parties:

David Christopher Lucano (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
E Vuu (Applicant)
R Coffey (Respondent)

Solicitors:
McGirr & Associates (Applicant)
McCullough Robertson (Respondent)

File Number(s):

2024/00039875

Publication restriction:

Pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013, other than to the Tribunal and Respondent, disclosure, publication or broadcast of the contents of the confidential material is prohibited.

REASONS FOR DECISION

1. The Applicant applied for a firearms licence in the categories of A, B, C and D on 17 October 2023.

2. The Respondent refused to grant the firearms licence because the Respondent was not satisfied it would be in the public interest to grant the licence nor was the Respondent satisfied the Applicant is a fit and proper person to hold a licence.

3. The Respondent made the original decision to refuse the licence application on 17 November 2023 and at the Applicant’s request conducted an internal review. On 4 January 2024 the Respondent’s internal review affirmed the original decision.

4. The Applicant seeks review of the decision refuse his firearms licence application.

Procedural matters

5. As the hearing commenced on 20 August 2024 the Tribunal considered a number of interlocutory issues.

Respondent objection

6. On 6 June 2024 the hearing date was vacated and the Tribunal made directions by consent in relation to witnesses and for further information production.

7. The Respondent filed material in accordance with those directions. However, the Respondent objected to the production of one email on the basis of legal professional privilege and other information first on the basis that the information had no legitimate forensic purpose to the issues in dispute in the review and second on the basis that the information was protected by the operation of s 170 of the Police Act 1990.

8. At the hearing the Tribunal made orders under s 64(1)(d) of the CAT Act with the effect that the confidential material subject to the Respondent’s objection provided by the Respondent as well as an aide memoir and schedule document were only available to the Tribunal and the Respondent and are not to be otherwise disclosed, broadcast or published.

9. No part of the hearing was subject to a confidential hearing. The Applicant was present throughout the entire proceeding.

10. Having considered the submissions of the parties including the written submissions of the Applicant and the material before the Tribunal the Respondent’s objections were upheld and the parties were informed that the Tribunal would provide written reasons for that decision in the reasons for decision in the review.

Legal professional privilege

11. The Evidence Act 1995 provides for two categories of legal professional privilege: legal advice privilege (s 118) and litigation privilege (s 119). Section 118 of the Evidence Act provides the legal advice privilege will apply where:

Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of—

(a)  a confidential communication made between the client and a lawyer, or

(b)  a confidential communication made between 2 or more lawyers acting for the client, or

(c)  the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person,

for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

12. The Evidence Act also defines client to include a person or body who engages a lawyer to provide legal services or who employs a lawyer as well as an employee or agent of a client. The Evidence Act defines ‘confidential document’ to mean a document prepared in circumstances where there was an obligation on the author or recipient not to disclose its contents; and a ‘confidential communication’ to apply to communication occurring in the same circumstances.

13. As set out by the Appeal Panel in AIN v Medical Council of New South Wales [2015] NSWCATAP 241 at [25]:

… it is required to establish the factual matters necessary to found a claim under s 118 or s 119 of the Evidence Act, including that relevant provisions are a client and a lawyer, that a document or communication is confidential and that the dominant purpose for which a communication was made or a document was prepared is one contemplated by the provision relied upon.

14. Therefore, in order for legal professional privilege to apply each element of the privilege must be satisfied. The essential elements of legal professional privilege are:

1. the existence of a client and lawyer relationship; and

2. the confidential nature of the relevant document; and

3. the relevant document was brought into existence for the dominant purpose of either:

1. enabling the client to obtain, or the lawyer to give legal advice or provide legal services, or

2. for use in existing or anticipated litigation.

15. While the statutory formulation of privilege is usually applied in matters such as this, as the Tribunal has previously observed, the Evidence Act is not a code and common law principles of privilege remain relevant, including when interpreting the meaning and operation of words and terms not defined in the Evidence Act: see Jackson v University of New South Wales [2019] NSWCATAD 224 (at [96]).

16. Further, while the Evidence Act uses the term ‘client legal privilege’, it is understood to be interchangeable with the term ‘legal professional privilege’: Moore v Southern NSW Local Health District [2024] NSWCATAD 72 at [49].

17. On the material before the it, the Tribunal was satisfied a lawyer client relationship exists between the parties to the email. The Tribunal was satisfied the document is a confidential document because of the sensitive nature of its contents and the circumstances around its creation.

18. The term ‘dominant purpose’ is not defined in the Evidence Act but has been held to mean one that predominates over other purposes – the prevailing or paramount purpose: Priest v State of New South Wales [2006] NSWSC 1281 at [26]. When applying the dominant purpose test an appropriate starting point is to ask what was the intended use or uses of the document which accounted for it being brought into existence: Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357.

19. Legal professional privilege extends to documents used to assist a lawyer to give advice and a client to receive it: Trade Practices Commission v Sterling (1979) 36 FLR 244 at [4] and extends to a police prosecutor: see Campbell v Commissioner of Police, New South Wales Police Force [2022] NSWCATAC 12 at [41] and Agarwal v Commissioner of Police, NSW Police Force [2022] NSWCATAD 331 at [163].

20. On the material before it, as well as inspection of the relevant document, the Tribunal was satisfied the document was commissioned for the dominant purpose of seeking or receiving legal advice and for use in litigation.

21. The Tribunal was not satisfied there had been any loss of the privilege on the material before it.

22. The Tribunal was therefore satisfied the relevant document is subject to legal professional privilege and upheld the Respondent’s objection to production of the document in this review.

Complaints records

23. The Respondent objected to the production of complaints information regarding an officer of the Respondent (the complaints material) on the basis there was no legitimate forensic purpose in the information contained in the complaints material subject to objection and it was neither logically probative nor relevant to the issues for resolution in this review, noting the officer was not a witness in the proceeding: see icare NSW v Webb [2023] NSWCATAP 192 at [34]-[43].

24. Further, the Respondent submitted the complaints material could not be produced in this review because under s 170 of the Police Act 1990 such material is subject to privilege and is only admissible in certain proceedings which do not include administrative review proceedings before the Tribunal.

25. The Applicant cited Page v Commissioner of Police [2020] NSWCATAD 163 relating to the Government Information (Public Access) Act 2009 which is not analogous to the issue in this review because that decision related to production under the access to information scheme, not in the context of Tribunal proceedings for administrative review.

26. The Applicant also submitted the s 170 protection was only regarding admissibility not production, however the Tribunal was not satisfied this was a valid distinction because if material is not admissible in this review, it cannot be relevant for the purposes of the review.

27. On the material before it, as well as inspection of the relevant complaints material, the Tribunal was satisfied the material was subject to the protection of s 170 of the Police Act because of the nature of the material.

28. Further, the Tribunal was also not satisfied the complaints material was logically probative to an issue in dispute in this review including because it relates to a person who was not a party nor a witness to the proceeding and was not relevant to this review. The Tribunal was therefore not satisfied there was a legitimate forensic purpose regarding the complaints material.

29. For those reasons the Tribunal upheld the Respondent’s objection to production of the complaints material in this review.

Applicant’s request for oral reasons and adjournment

30. The Applicant then requested the Tribunal provide immediate oral reasons for the decision to uphold the objection citing s 62(4) of the Civil and Administrative Tribunal Act 2013 (CAT Act). The Tribunal declined to provide oral reasons and again informed the parties reasons for the decision would be provided in the final reasons for decision in this review. That decision was made applying the guiding principle of s 36 of the CAT Act to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” and noting the Tribunal’s power to determine its own procedure (s 38 CAT Act).

31. The Applicant then sought an adjournment in order for the Tribunal to provide written reasons indicating an intention to consider making an application to appeal the Tribunal’s ruling. The Tribunal declined to adjourn the proceeding for those purposes. The Tribunal also declined to give oral reasons for that decision and notes s 62(2A) of CAT Act excludes a decision to adjourn proceedings from s 62(2) of the CAT Act.

Application for disqualification

32. The Applicant then applied to the Tribunal for the member’s disqualification on the basis of apprehended bias because the Tribunal made rulings in relation to the proceeding and declined to provide oral reasons at the hearing. The disqualification application was declined and the Tribunal also declined to give oral reasons for that decision.

33. The Applicant’s submission was that as a result of the Tribunal considering the first ruling in relation to the objection as to production, the Tribunal had considered material that put the Applicant at a disadvantage because the Applicant had not seen the material and could not make submissions about the material. However, the material subject to the successful objection was of no relevance to the Tribunal in this review and was only before the Tribunal for consideration of the objection.

34. The test for determining apprehended bias is whether "a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner v The Official Trustee in Bankruptcy [2000] HCA 63 at [8]; 205 CLR 337 at p 345.

35. The Tribunal was not satisfied there was any basis on which an independent observer might reasonably apprehend the Tribunal would be biased in this review following the making of rulings in the proceeding. The fact that the Tribunal made a procedural ruling in relation to production and informed the parties that it would provide its reasons in due course is an ordinary way in which Tribunal proceedings are conducted. It is part of the Tribunal’s power to determine its own procedures. Conduct of proceedings in this way would not cause a fair minded lay observer to reasonably apprehend that the member might not bring an impartial mind to the resolution of the administrative review proceeding the Tribunal is required to decide. For those reasons the Tribunal refused the application for disqualification.

Material Before the Tribunal

36. The application for review attaching the internal review reasons was before the Tribunal. The Applicant provided three written statements from himself, written statements from Mr Lou Lucano and Mr John Gowing as well as two written submissions, a USB drive and transcripts of recordings and an affidavit of the Applicant’s legal representative to the Tribunal and the Respondent.

37. The Respondent provided a bundle of documents including a USB drive filed under s 58 of the Administrative Decisions Review Act 1997 (the ADR Act), an affidavit of the Respondent’s legal representative, open material filed in response to orders made on 6 June 2024 and written submissions to the Tribunal and the Applicant.

38. At the hearing on 21 August 2024 the Applicant gave evidence and was cross examined. Both parties made opening oral submissions at the hearing. At the end of the two day hearing the parties were provided with an opportunity to provide written submission in closing by direction and both parties did so. The Respondent provided written submissions on 28 August 2024 and the Applicant provided written submissions on 30 September 2024.

39. The confidential material subject to the Respondent’s objection to production was only before the Tribunal for the purposes of consideration of the objection. Following the interlocutory decision to uphold the objection, the confidential material was not material before the Tribunal in this review.

Applicant’s case

40. The Applicant contends he should be granted a firearms licence because he is no risk to public safety and he requires a licence in order to continue to operate his pest extermination business. The Applicant submits he is of good character and that allegations of recent conduct against him are without a factual basis.

Respondent’s case

41. The Respondent contends the correct and preferable decision is to refuse the firearms licence application because the Applicant is not a fit and proper person to hold a licence and granting a licence would not be in the public interest (relying on ss 11(3)(a) and 11(7) of the Firearms Act 1996) based on the Applicant’s conduct.

Role of the Tribunal

Jurisdiction

42. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the ADR Act. Section 75 of the Firearms Act provides that applications may be made to the Tribunal for administrative review of a decision to refuse a firearms licence. The Tribunal has jurisdiction to hear and determine this application for review.

Administrative Review

43. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].

44. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: see s 63(3) of the ADR Act.

45. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 and 68; and Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 at [5]-[8], [15]-[17]. The standard of proof applying in this review is the balance of probabilities. These is no burden or onus of proof on either party: see Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28]-[34]. 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]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 [10]-[12]. However, they provide guidance for the Tribunal’s exercise of jurisdiction, especially in relation to the issues for consideration in this review.

Relevant Legislation

46. The underlying principles of the Firearms Act are set out in s 3 and include:

(a)  to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b)  to improve public safety—

(i)  by imposing strict controls on the possession and use of firearms, and

(ii)  by promoting the safe and responsible storage and use of firearms…

47. Section 11 of the Firearms Act allows the Respondent to issue or refuse a firearms licence application relevantly providing:

(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

…

(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.

Consideration

Applicant’s history

48. The Applicant first applied for a category AB firearms licence in 2003. That application was refused because the Applicant was subject to a good behaviour bond.

49. The Applicant moved to another jurisdiction following the completion of an apprenticeship to work on stations and held a firearms licence in that jurisdiction for a period of time before his return to NSW in 2006.

50. The Applicant applied for a category AB firearms licence in New South Wales in 2006 for the genuine reasons of hunting and vermin control which was granted.

51. In December 2008 the Applicant’s licence was suspended and then revoked in February 2009 as a result of the Applicant’s conduct.

52. In February 2009 the Applicant was convicted and fined of four firearms safety offences. The Applicant appealed the severity of those convictions and in May 2009 the convictions were overturned and instead four 12 months bonds were imposed under s 10 of Crimes (Sentencing Procedure Act) 1999.

53. In Lucano v Commissioner of Police, NSW Police Force [2010] NSWADT 320 (Lucano) the Applicant sought review of a decision of the Respondent to refuse the Applicant’s 2010 application for a category AB firearms licence for the genuine reasons of hunting and vermin control. The Respondent had refused the application on the basis the Applicant was not a fit and proper person to hold a licence and public interest concerns because of the Applicant’s breaches of firearms safety requirements, his conduct towards officers of the Respondent and allegations of domestic violence towards the Applicant’s then-partner. The Tribunal determined that the Respondent’s refusal decision at the time was a correct decision but that sufficient time had since passed to show a change in the Applicant’s behaviour such that the correct and preferable decision could change (Lucano at [83]-[84]). The Tribunal remitted the decision to the Respondent recommending the grant of a licence if the Applicant provided a psychologist report favourable to the Applicant by a certain date. If no report was provided by the specified date the Respondent was ordered to redetermine the matter taking into account the Tribunal’s reasons for decision of 1 March 2011.

54. The Applicant was granted a category AB firearms licence in May 2011 which was renewed in 2016 for the genuine reasons of hunting and vermin control. The Applicant applied for a category C licence for the genuine reason of primary production in March 2019 which was granted in April 2019. The Applicant’s category ABC licence was renewed in 2021.

55. The Applicant’s category ABC licence was suspended in January 2023 and revoked by the Respondent in June 2023 as result of the Applicant’s alleged conduct. The Applicant applied for an internal review which affirmed the original 2023 decision to revoke the licence. The Applicant commenced Tribunal proceedings which were subsequently withdrawn.

56. The Applicant made an application for a category ABCD licence on 17 October 2023 which was refused by the Respondent. That refusal decision of November 2023 is the decision subject to this administrative review.

Photographs

57. Before the Tribunal were a number of photographs including:

1. of the Applicant in a yellow bucket hat and pyjamas taken indoors where the Applicant is holding a firearm with both hands pointed horizontally outwards (p 619 of exhibit R1);

2. of the Applicant and his then approximately four year old son with a dead wild boar the Applicant had shot. The child is touching the barrel of a firearm (marked as pp 621-622 of exhibit R1);

3. of the Applicant’s child holding a firearm with one hand and a dead rabbit in his other hand. The child is wearing an ammunition belt that may have contained live ammunition (p 606 of exhibit R1);

4. of the Applicant’s child holding a firearm in front of several dead rabbits (p 618 of exhibit R1);

5. of the Applicant’s child in pyjamas holding a firearm (p 620 of exhibit R1); and

6. of the Applicant’s child holding a firearm with one hand and a dead rat in his other hand (p 617 exhibit R1).

58. The Tribunal is satisfied the Applicant’s conduct evidenced by the photographs posed an obvious risk to public safety.

59. The Applicant’s justified his conduct in relation to his young child’s proximity and contact with firearms on the basis that children in the country were more likely to be exposed to firearms and needed to know and understand firearms safety. The Applicant’s view was that the situation was analogous to teaching water safety and made reference to the inability to fence all water.

60. The Tribunal cannot accept that proposition and instead is satisfied this demonstrates the Applicant’s disregard for the strict requirements of the firearms licensing scheme, which does not permit children under 12, let alone those under school age as was the case for the Applicant’s child at the time, to have any physical contact with, or any access to, a firearm.

Domestic circumstances

61. The Applicant’s domestic circumstances in 2022 were troubled with both the Applicant and the Applicant’s then partner (the Applicant’s former partner) making allegations of domestic violence against each other and both were subject to apprehended domestic violence orders (ADVOs). The Applicant’s former partner no longer has access to the Applicant’s property, therefore the potential for the Applicant’s former partner to impact the Applicant’s domestic circumstances into the future at the property is not relevant in this review.

62. The Applicant’s former partner is not the same person who was subject to the Applicant’s conduct as set out in Lucano.

63. The material before the Tribunal included voluminous material including voice recordings and body worn video footage regarding incidents between the Applicant and his former partner as well as their interactions with police. The Applicant made several voice recordings of his former partner and was the first to contact the police. The ADVO against the Applicant’s former partner remains in place. The material before the Tribunal included allegations of domestic violence against the Applicant made by the Applicant’s former partner.

64. The Applicant contends that his firearms licence was suspended and revoked in 2023 on the basis of alleged conduct that did not occur and for which ADVO proceedings were subsequently withdrawn. The Applicant’s evidence was that his former partner was solely responsible for any conduct of concern between them.

65. The Respondent did not call the Applicant’s former partner. The Tribunal makes no adverse inference from that failure given the context of this review: see Cong v Commissioner of Police [2022] NSWCATAD 233.

66. The issues for consideration in this review relate to the Applicant’s conduct and, if relevant, any consequent impact that particular conduct has on the Applicant’s eligibility to be granted a firearms licence under the Firearms Act.

Forcible removal

67. The Applicant had an altercation with his former partner which resulted in the Applicant forcibly removing her from their house one night.

68. The Tribunal cannot accept the Applicant’s evidence he restrained his former partner partly because of his fear for the safety of their child because of the inconsistency in the Applicant’s evidence that he then left the property alone, leaving the child in her care.

69. The photographs of the Applicant’s former partner several days later show extensive bruising that the Tribunal is satisfied demonstrates the restraint the Applicant subjected her to during the incident was excessive.

Shooting of family dog

70. In November 2022 the Applicant used a firearm to euthanise the family dog. The Applicant contends this was a humane act given the dog’s condition at the time. The Tribunal cannot accept this submission on the material before it because the Applicant was aware of the condition of the dog for some time before the act and the Applicant took no steps to seek treatment for the dog beyond advising the Applicant’s former partner by text message that the dog needed to see a vet. The Tribunal therefore accepts the submission of the Respondent that this act demonstrates intimidating behaviour towards the Applicant’s former partner in a domestic violence context.

Conduct of business without requisite authorisation

71. The Applicant commenced operating as a sole trader in 2021 and in 2022 formed a company to conduct commercial pest extermination activities including by using firearms. The Applicant has never held a firearms licence authorising him to use firearms for business or for vertebrate animal pest control, that is, for those genuine reasons.

Disclosure of information to the firearms registry

72. The Respondent submitted the Applicant was false and misleading in his answers to questions in several firearms licence applications and renewals because the Applicant did not disclose the 2009 matters in answer to specific questions about previous suspensions, refusals and revocations. The Tribunal accepts the Applicant’s evidence he thought, albeit mistakenly, the imposition of s 10 bonds and the decision of Lucano resulted in him having a clear record in relation to the 2009 events. Therefore the Tribunal is not satisfied the Applicant was deliberately false and misleading in his answers to the firearms registry.

Public safety and risk

73. Under the Firearms Act, public safety is the primary consideration: Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134. The interest of an applicant in obtaining a firearms licence is subordinate to that consideration: Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at [69].

74. In Ward v Commissioner of Police [2000] NSWADT 28 Deputy President Hennessy said (at [27] - [28]):

…The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would not pose a risk to public safety if he had access to firearms.

The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

75. In addressing the assessment of risk an applicant is not required to prove a near-absolute negative, instead the assessment is to occur in a “nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety”: see Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 where the Tribunal discussed Ward and other authorities (at [64] - [66]).

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

76. The expression ‘fit and proper’ has often been considered by this Tribunal and in other jurisdictions. In Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at pp 156-7 the High Court said:

The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.

77. Further, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, the question was whether the holder of a commercial broadcasting licence under the Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence. Toohey and Gaudron JJ discussed the meaning of the expression ‘fit and proper person’ (at p 380):

The expression ‘fit and proper person’, standing alone, carries no precise meaning. It 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. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

78. Their Honours went on to say (at p 388):

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.”

79. Mason CJ (with whom Brennan and Deane JJ agreed) stated that the concept “fit and proper person” should not be construed narrowly and stated at (pp 348-349):

Some indication of the breadth of the content of the concept may also be gathered from the fact that it is a purpose of the Act to ensure that commercial broadcasting is conducted in the interest of the public. A commercial broadcasting licence is a valuable privilege which confers on the licensee a capacity to influence public opinion and public values. For this reason, if for no other, a licensee has a responsibility to exercise the power conferred by the licence with due regard to proper standards of conduct and a responsibility not to abuse the privilege it enjoys.

80. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said (at p 76):

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

81. Whether an applicant is a fit and proper person to hold to licence is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, NSW Police Force [2014] NSWCATAD 184; is to be determined by reference to ‘the activities in issue’: Austin v Commissioner for Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [82]; and gauged in ‘light of the nature and purpose’ of those activities: AJO v Director-General of Transport [2012] NSWADT 101 at [26].

82. For firearms licences, the Tribunal is required to form “a positive state of satisfaction” that an applicant is a fit and proper person who can be trusted to possess firearms without danger to public safety or to the peace:  Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45] and (at [19]) the Tribunal noted:

The statutory regime under the Act is protective, not punitive. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.

83. The Applicant’s past conduct in 2009, as set out in Lucano, resulting in charges, fines and bonds for offences in relation to firearms safety was serious. Further, the more recent photographs of the Applicant’s child with close and dangerous contact with firearms and the Applicant’s own posing with a firearm (see p 619 of exhibit R1) demonstrate the Applicant’s ongoing disregard for firearm safety such that the Tribunal cannot be satisfied the Applicant is a fit and proper person who can be trusted to possess firearms without danger to public safety.

84. Also of relevance is the Applicant’s evidence that he was carrying out a business of pest and vermin extermination using firearms without the requisite authorisation, which is of concern because it demonstrates a further failure of the Applicant to comply with the strict requirements of the firearms licensing scheme beyond his conduct in 2009.

85. The public interest requires that all licensees be aware of, and comply with, the legislative requirements: see Cook v Commissioner of Police, New South Wales Police Service [2003] NSWADT 30 at [34]. Responsibilities applying to firearms licence holders are serious and licence holders must both understand and comprehend the guidelines and laws that govern them and must act in accordance with them: see Wiltshire v Commissioner of Police, New South Wales Police [2005] NSWADT 75 at [25].

86. The Applicant’s conduct in failing to ensure firearm safety and compliance with the strict requirements of the firearms scheme is sufficient for the Tribunal to be satisfied the Applicant is not a fit and proper person to be granted a firearms licence because the Tribunal cannot be satisfied the Applicant can be trusted to have possession of firearms without danger to public safety.

87. Therefore on the material before it, the Tribunal cannot be satisfied the Applicant is a fit and proper person under s 11(3)(a) of the Firearms Act who can be trusted to possess firearms without danger to public safety.

Is it in the public interest for the Applicant to hold a licence?

88. The term public interest is not defined in the Firearms Act. In Constantin v Commissioner of Police [2013] NSWADTAP 16 the Appeal Panel stated (at [33]):

The ‘public interest’ allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system.

89. The public interest considerations in s 11(7) of the Firearms Act can also include an applicant's fitness or character that are mentioned separately in s 11(3)(a), see Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 (at [93]):

Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a).

90. Therefore the matters considered at [83]-[87] above are also relevant to the consideration of public interest and weigh against the grant of a licence to the Applicant on public safety considerations.

91. Further, the Tribunal may take into account the history of the Applicant’s domestic circumstances detailed above and also described in Lucano, including as the recipient of a ADVO, even if those proceedings were ultimately withdrawn: see Hariri v Commissioner of Police [2022] NSWCATAD 5 (at [59]-[60]).

90. In Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234, the Appeal Panel said (at [25]):

…it is uncontentious that a relevant consideration is the applicant’s previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant.

93. The Tribunal must consider the past conduct of the Applicant as a significant guide: see Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]; and is to look at the Applicant’s conduct as a whole, including potential future conduct with past conduct of the Applicant being a significant guide in assessing likely future conduct: see Ford v Commissioner of Police [2022] NSWCATAD 87 at [59]. Those considerations, based on the Applicant’s history as detailed in these reasons, further support a finding by the Tribunal that it cannot be satisfied the Applicant would not pose a risk to public safety if granted a firearms licence.

94. Therefore, in all the circumstances and on the material before the Tribunal, the Tribunal cannot be satisfied it is in the public interest under s 11(7) of the Act for the Applicant to hold a firearms licence.

Conclusion

95. The Tribunal has made findings that it is not satisfied the Applicant should hold a firearms licence under two provisions of the Firearms Act, namely ss 11(3)(a) and 11(7).

96. It follows that the correct and preferable decision is to affirm the decision of the Respondent to refuse the Applicant’s application for a firearms licence.

Costs

97. In the closing written submission of the Applicant at [169] the Applicant sought costs for a hearing vacated earlier in these proceedings. In response the Respondent sought to lodge submissions in reply on 3 October 2024. In the circumstances and having regard to ss 36 and 38 of the CAT Act, orders will be made to provide an opportunity for both parties to properly address the Tribunal on costs.

Orders

1. The decision under review is affirmed.

2. The Applicant is to provide to the Respondent and the Tribunal, any submissions and documents they intend to rely on in response to the costs application by 4pm 18 October 2024.

3. The Respondent is to provide to the Applicant and the Tribunal, any submissions and documents they intend to rely on in relation to the costs application on or before 4pm on 25 October 2024.

4. Pursuant to s 50 of the Civil and Administrative Tribunal Act 2013, parties are to include in their written submissions on costs whether a hearing in relation to the costs application can be dispensed with.

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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: 11 October 2024