Perks v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 152

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Perks v Commissioner of Police, NSW Police Force [2025] NSWCATAD 152

Hearing dates:

19 June 2025

Date of orders:

25 June 2025

Decision date:

25 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Naida Isenberg, Senior Member

Decision:

(1)   The Decision under review is set aside

(2)   A Category AB firearms licence is to be issued to the Applicant for recreational hunting and vermin control.

Catchwords:

LICENSING – firearms - interim AVO dismissed – objective evidence – public interest

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Cases Cited:

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

Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219

Esterman v Commissioner of Police [2014] NSWCATOD 70

Ford v Commissioner of Police [2022] NSWCATAD 87

Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218
Josephv Commissioner of Police [2017] NSWCA 31

Lee v Commissioner of Police, NSW Police Force [2020] NSWCATAS 144
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
Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137
Sawires v Commissioner of Police [2010] NSWADT 4

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 [2018] NSWCATAD 156

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

Texts Cited:

None

Category:

Principal judgment

Parties:

Applicant: John Perks
Respondent: Commissioner of Police, NSW Police Force

Representation:

Solicitors:
Applicant (self-represented)
Hall & Willcox (Respondent)

File Number(s):

2025/00086899

Publication restriction:

Nil

REASONS FOR DECISION

1. The Applicant has held a firearms licence since 27 March 1993. On 20 April 1999, he was granted a Category AB firearms licence for the genuine reasons of Sport/Target Shooting and Recreational Hunting Vermin Control - Hunting club membership. The licence was renewed, most recently, on 1 February 2019. However, in November 2023 his firearms licence was revoked on the basis that he had failed to maintain his shooting club membership and undertake the mandatory shoots organised by the club.

2. On 10 September 2024, the Applicant lodged a new application for a Category AB firearms licence for genuine reasons of Sport/Target Shooting and Recreational Hunting/Vermin Control, but his application was refused. That decision was affirmed on internal review and the Applicant now seeks review by this Tribunal.

Relevant legislation

3. The general principles of the Firearms Act 1996 (the Act) are set out in s 3 of the Act:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

(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, and

(c) to facilitate a national approach to the control of firearms.

(2) The objects of this Act are as follows:

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b) to establish an integrated licensing and registration scheme for all firearms,

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,

(e) to ensure that firearms are stored and conveyed in a safe and secure manner,

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

4. The Act, in setting out restrictions on the issue of licences, provides, relevantly at s 11(7) that the Commissioner (and hence the Tribunal on review) may refuse to issue a licence if it is considered that issue of the licence would be contrary to the public interest.

Evidence

5. The Applicant provided a lengthy statement, gave evidence and was cross-examined. I also asked him questions.

6. The Applicant provided references from:

1. Mark Morrisson OAM dated 10 May 2025

2. Jodie Griffiths dated 2 May 2025

3. Susan Ramke dated 2 May 2025

4. Carol Piper dated 3 May 2025

5. David Kyle dated 3 May 2025

6. Allan Hinchliffe dated 5 May 2025

7. David Murphy dated 1 May 2025

8. John Niland dated 1 May 20925

7. None was required for cross examination.

8. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act). The material included the COPS Event which related to a complaint by V, the Applicant’s former partner.

Tribunal’s approach

9. 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 has regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (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: s 38(2) of the CAT Act. 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.

CONSIDERATION

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

10. On 3 March 2023, V telephoned Police and made an allegation of a domestic violence episode against the Applicant. Police met with V and notes were made. In summary, V reportedly told Police that:

1. She had been in a relationship with the Applicant for six years and whilst they lived separately, he would visit her on weekends.

2. The Applicant had told her that he was a former high-ranking member of the Israeli special forces and remained in a 'top secret advisory role' with connections all over the world.

3. The Applicant required her to call him every night before bed and wanted to know every detail about what she had done that day, where she went and to whom she spoke. If she did not call him, he would 'bombard' her with calls and texts before turning up to her property, demanding to know why she had not called.

4. The Applicant had always been 'extremely jealous' of any male she had a connection with. On 6 December 2022, V had a friendly two-hour conversation with her neighbour outside her property. On 10 December 2022, the Applicant found out about the conversation, confronted the neighbour and demanded he stay away from V. When V confronted the Applicant, he told her that Police had cameras set up everywhere, he had paid $800 to get a satellite image of her speaking with the neighbour and knew the conversation went for two hours and 17 minutes.

5. On 25 February 2023, she and the Applicant had a verbal argument. She told the Applicant she wanted to end their relationship and the Applicant allegedly said 'I'm not going anywhere, you will never get rid of me, I will make your life hell'.

6. The Applicant has been in constant contact with her adult children messaging them about how she was the one causing issues in the relationship and making her out to be controlling. He allegedly told V’s daughter 'She will never get rid of me, I will start a war if she tries to leave me, she promised it would be me and her till the end'.

7. V expressed 'extreme concerns' for her safety due to the Applicant's obsessive and controlling behaviour. She did not wish to be in a relationship with him anymore and wanted no contact with him.

11. As a result of V’s complaint, Police made an urgent application for a Provisional Apprehended Domestic Violence Order (IAVO) to protect her from the Applicant. The IAVO application prohibited the Applicant from contacting V or going within 200 metres of any place where she lived or worked. The IAVO was ultimately withdrawn or dismissed on 23 November 2023.

12. On 22 November 2024, the Applicant’s application for a firearms licence was refused. The Delegate found that the information contained in V’s report to Police in November 2023 “raised serious concerns for public safety” if the Applicant were to be issued a firearms licence and had access to firearms. There were serious concerns about the Applicant's “ability to control [himself] from behaviour which incites fear or intimidation”, and it was believed it “would be made worse if [he] had access to firearms”.

13. On 11 February 2025, an internal review officer affirmed the decision, and placed significant weight on the Applicant having recently purchased a property approximately two minutes' drive from V’s home. The internal review officer acknowledged the IAVO had been withdrawn but found it was too soon to be satisfied that there would be no issue in relation to the Applicant's recent property purchase.

CONSIDERATION

14. The Applicant provided a very detailed statement and gave extensive evidence. Not all of his evidence is reproduced here, as some was irrelevant to the matter at hand. Helpfully, his evidence provided some detail as to the deterioration of his relationship with V which preceded her seeking an IAVO.

15. By way of background the Applicant said:

1. He is a licensed Advanced Gas Installer handling Class 2 Explosives throughout Australia and the Commonwealth.

2. He has been a Dangerous Goods Consultant for liquified petroleum gas approved by NSW Work Cover for over 30 years.

3. He has operated a gas cylinder testing business (licensed by Australian standards) for 45 years. He was elected President of the Institution of Gas Engineers of Australia.

4. He has been an occasional expert witness in the Supreme Court

5. He has been employed by local government for 15 years as a business manager.

6. He is employed as a supplier and contractor with NSW Corrective Services on and off since 1985 and am currently available on call to the Mid North Coast Correctional Centre located in Kempsey.

7. He served on Cedar Place Nursing Home (Kempsey) Board of Directors, in which role he said, he subjected himself to “every security and character analysis available in Australia including all state and federal police and intelligence agency checks”.

8. He is a Patron at Crescent Head SLSC and served on its clubhouse redevelopment committee.

16. The Applicant said he and V knew each other for approximately 11 years during the last 6 of which, they co-habited. He had a business and a home in town and she had a 1500 acre property out of town. For the first few years they were “a tight couple”.

17. V told him that her ex-husband had told her that she would go broke because she was too stupid to run a farm. Nonetheless, V was in fact a wealthy farmer and was very self-sufficient. However, as the country was in the grip of drought and her property was overstocked and the livestock were starving, it did appear she would go broke. The Applicant said he worked 5 days per week on her properties to the detriment of his own business which he then operated from his phone. Their relationship was “almost perfect”.

18. Before they commenced living together they would phone each other nightly. He said this was because she worked out on her property each day and he was working in his business which involved explosives. They just were checking that each other was OK after their respective, high risk days. He denied he had “required” her to call him every night as she claimed; it was just 2 people who cared for each other talking about their day. If she did not answer he was concerned for her welfare, because she lived and worked alone on a large property.

19. Then, in about August 2019, on a day he was at V’s property, V had a very serious injury which she was thrown from her horse - smashing her pelvis, breaking several ribs, suffering bruising, abrasions, extensive internal injuries, and severe injuries to her head and neck. She was “dead” and he performed CPR while arranging for emergency services to attend. She was helicoptered to hospital; her chances of survival were slim. After contacting her family he arranged for a farmhand to run the property while he stayed with V at the hospital. Doctors advised that she would be in a wheelchair for months, perhaps permanently, but with physiotherapy, rest and recuperation they hoped she would walk again unaided. He realised her house would need to be altered to accommodate a wheelchair and he returned to the farm, and at his own expense, built a ramp into the house, and altered her bathroom to accommodate the wheelchair. He studied massage therapy specific to her injury and, on her return, treated her several times per week.

20. He thought V felt insecure and depressed, having lost control of her life and surroundings. She became extremely stubborn and refused assistance on several occasions. He said that following the accident her behaviour became “odd”. She believed COVID vaccinations were going to create zombies and she bought the high-powered rifle to shoot the zombies who she believed would come to her property to steal her food. She began doing target practice up against a concrete wall that was adjacent to her house even though, with neighbouring houses a few hundred metres away, there was a risk of bullets ricocheting. On another occasion V purchased thousands of cans of cat food and a large amount of seeds and food preservation appliances because she was convinced the world as we know it was ending. This demonstrated to him her unstable mindset after her life-threatening accident.

21. The drought was still in full swing and there were 600 head of cattle to feed every second day. He closed his business completely and concentrated his efforts on V and her farm business. He developed and constructed an irrigation system which would save her buying feed at great expense. He also bought a water pump and later built a housing platform above anticipated flood levels and rebuilt the bridge at the entrance to the property. She refused his assistance in negotiating a loan, he understood, because she did not want to lose more control. She then asked him for a substantial loan and he readily agreed. He asked her though if she would sign “an agreement”, as the loan was to be unsecured. At first she agreed and appeared to be happy but the next day she became very angry and cut him off, becoming cold and silent.

22. She told him that she didn't want him sleeping at the farm even though there was a spare bedroom; he went back to his residence some 50km away where he spent his nights and would return to the farm to work through the days. Over time her attitude returned to the loving person he loved.

23. After the drought bushfires devastated the entire district. All the farms in the area were ordered to evacuate. V had tenants renting a cottage about 1km from the main house. He and V told them about the evacuation orders, but they said they had nowhere to go and no money. He hoped V - the landlord worth millions of dollars - would make some kind of offer of financial assistance or accommodation, but she did not, notwithstanding the tenants had saved the cottage, as well as the adjacent shed, drought fodder and machinery, from the fire. Instead, he paid for the tenants to be accommodated in town, but this angered V. He spent several days fighting the fire in an attempt to protect V’s property - two 3 bedroom cottages, approximately $400,000 worth of machinery and 600 head of cattle worth approximately $500,000 - but by the end of the week nearly everything was destroyed. He did not find V to be especially grateful for his efforts.

24. He was totally committed to her and he had thought the feeling was mutual. He put her bad mood swings and controlling behaviour down to the prevailing conditions and put 100% of his physical and financial support behind her, no matter how irrationally she behaved. She also claimed that her ex-husband had cheated her out of millions of dollars in their divorce settlement and he thought that may have accounted for her sensitivity to even the mildest criticism. She became domineering and controlling not only in farm matters but also in their personal relationship. On other occasions she was “all over him like a rash”.

25. He asked V if she would attend couples counselling, in the hope that they could establish if her out-of-character behaviour was a result of the head injury and therefore treatable. He said she accused him of trying to make her out to be crazy. He continued with counselling for himself and said he was advised that he should end the toxic manipulative relationship for the sake of his own mental and physical health. However, he said, he loved her and was devoted to her. He cooked, cleaned and continued to work the farm, thereby saving her thousands of dollars on labour costs. By this time, he was back staying at the farm with her 4 or more nights per week and she seemed to be happy. She became relatively mobile and her mood swings lessened. He thought though that she had become reliant on a daily bottle of wine with dinner, saying that she couldn't sleep unless she drank. He believed she was self-medicating, and he had no idea if she was mixing it with other medications. He believed she had traffic offences which may have been occasioned by drink driving.

26. He said V had been aware for several months of the return of his (incurable) cancer. He told her that he wouldn't be able to do as much around the farm, and he was going to undergo radiation and chemotherapy again. He had 10 days of radiation therapy in hospital and then was released to recuperate at home. V however went to Victoria to attend her 1 year old grandson’s birthday party. Upon her return, she told him what a good time she had had there with her ex-husband. When he questioned her, he said she became aggressive and said that he was just looking for somebody to take care of him. He assured her that he was financially able to take care of himself. In cross examination, he denied he was jealous although he conceded he was “hurt”. It was all the more remarkable, he said in cross examination, because she had always claimed her ex-husband was an abuser.

27. About this time, he said he discovered that she had applied for and received government grants for alleged damage to her property by flood and fire. He alleged that she had falsely made those claims and provided some as why he believed she was not entitled to any relief. I make no comment about these information claims, but they may be investigated elsewhere.

28. He decided their relationship was to end but he would do it slowly over time. He had grown to love her family and didn't want to lose them. He gave an account of happy times with V’s family, some of whom suggested he should leave V. V’s attitude towards him was, as he described it “passive aggressive”, sometimes claiming he was only looking for someone to look after him and at other times being loving and passionate.

16. It was all getting too much for him to endure. He considered he had been an “exceptional partner” to V and had treated her with respect, consideration, love and kindness. Unfortunately, the injuries from her accident left her behaving in ways that his principles would not allow him to condone and that is why he chose to end their relationship and, on 27 February 2023 he told her. He asked her if she wanted to finish it immediately or over a few weeks. He offered to keep helping her out on the farm if she needed it. He also asked her how she felt about him continuing to see her children and grandchildren and she assured him that would be fine. He said he would come out the following Saturday to start collecting his things. In his evidence he said she then “got mad” at him. He attempted to contact her several times during that week and on some occasions she replied. They met again one evening later in the week at her son’s and she was warm towards him, but somewhat quiet and withdrawn as he was leaving. It was the next day, Friday 3 March 2023 he received a call from Kempsey Police saying they wanted to see him about his guns. Sometime after 10pm 2 police officers attended his home, serving the IAVO. He was completely shocked. The attending sergeant told him V had insisted it be done that night. He thought it was her way of stopping him from removing his belongings the next day as they had arranged, and prevented him from speaking with the children until the matter had finalised. He thought it extraordinary, because only a month before, she had given him formal consent to shoot on all her properties. In support of this contention the Applicant provided a letter from V dated 21January 2023 to that effect.

17. Over the next few months, he adhered strictly to the terms and conditions of the IAVO. He had to take out a “court order” to recover some of his property. He said that V claimed that he had gifted the majority of the property and his livestock (2 Limousin bulls valued at about $250,000) to her. This claim meant he would have to apply to the Family Court for his property, and he thought she knew that he would be very reluctant to do that. He did not pursue the claim.

18. The Applicant said he has not seen V in person or contacted her since the IAVO was served on him on 3 March 2023. The Respondent was critical of the Applicant for not providing any corroborative evidence to that effect, nor in relation to his completely different version of the events leading up to the IAVO. I observe that the Respondent itself did not provide evidence of any kind from V, and relied solely on her report to Police as recorded in the COPS event. I consider the Respondent’s criticism to be unfairly made; it was open to the Respondent to call V, for her to make her assertions and to provide an opportunity for those assertions to be tested.

19. The Applicant said he believed that since her accident, V is “mentally impaired and drug dependent” and that it was because of her “unconscionable and illegal behaviour” that he ended their relationship. The Respondent was critical of the Applicant’s assertions as unsupported by any corroborative evidence, such as from the counsellor who advised him to end the relationship for his own mental and physical health. The Applicant said he relied on his own observations of V.

20. The Respondent was also critical of the Applicant's submission as not addressing his alleged excessive response on 10 December 2022 to a lengthy conversation between V and her male neighbour a few days beforehand. When the Applicant found out about the conversation, as detailed in the COPS Event, he “confronted” the neighbour and “demanded he stay away from V”. In cross examination the Applicant denied that he was at all jealous of the neighbour. As the Applicant observed, there no statement from the neighbour. The Respondent submitted that the Applicant's version of events is at odds with Mark Morrison’s reference which describes the Applicant as having spoken to him about the “charges of AVO” “just after the incident”. Mr Morrison did not refer to the alleged events of 10 December 2022.

21. The Respondent submitted that Mr Morrison’s statement provides support for V’s version of events recorded in the COPS Event. He wrote that there was an argument between V and the Applicant on the night they separated and the Applicant made an 'error of judgment', and that it was 'out of character’' for the Applicant, although it is not entirely clear to which conduct he referred. I do not agree that this supported V’s version of events; that is but one interpretation of his evidence. It is equally consistent that he disbelieved the allegations because they were so ‘out of character’ for the Applicant, whom he had known for 32 years. The Respondent noted that the Applicant’s statement omitted any reference to the alleged argument on 25 February 2023 in which she told him the relationship was finished. In fact, the Applicant’s account is the conversation about ending the relationship occurred on 27 February 2023. To that extent, I reject the Applicant’s submission that the Applicant did not address the allegation – his account is of a very different conversation, albeit to the same end, 2 days later than V claimed.

22. The Applicant said his AVO matter “went before 3 separate prosecutors” and that “all found no case to answer” and that “[V’s] lies and deception were quickly seen through by each prosecutor”. When the matter came on for hearing, which V does not appear to have attended, the IAVO was dismissed. He said that the AVO was “found to be vexatious”. In the absence of any objective information as to why the IAVO application did not proceed, I do not accept the Applicant's submission that three prosecutors all found 'no case to answer' and that V's 'lies and deception were quickly seen'. As the Respondent submitted, I agree there can be a number of reasons as to why such an application is withdrawn or dismissed, including if the complainant decides she does not wish to pursue the order. However, what remains is that V’s allegations are untested.

23. Putting aside the conflicting accounts by the Applicant and V of their relationship deterioration between the Applicant and V, the evidence nonetheless suggests a tumultuous relationship between the two which, the Respondent submitted, raises real concerns for public safety. I note that toxic relationships may take many forms but I observe that there has been no allegation of violence by the Applicant against V at all, although they had a relationship of one form or another for 11 years. Further, notwithstanding that Applicant’s long history of firearms use, there has never been any suggestion of misuse.

24. In December 2024 the Applicant had the opportunity to purchase a rural investment property, which co-incidentally is on the same road as V’s property. It was said in the internal review to be “two minutes” from V's property. The Applicant said the properties are in fact more than 3 kilometres apart and over several hills and valleys, the road is very poor, and that the maps the Respondent relied on did not take into account the terrain. While he does not presently live there – residing some 40 kms away, he uses the road several times per week to access his farm, but in fact, he does not necessarily use the route that goes past the entrance to her property.

25. The Respondent submitted that the fact that the Applicant may not reside at the property is irrelevant because it is the location that he intends to use his firearms for the purpose of protecting his farm from pigs, foxes and wild dogs. Additionally, the Respondent submitted, the Applicant would likely pass V’s property whilst travelling from his residential address, where he intends to store his firearms, to his farm property, where he intends to use his firearms. It was submitted that, given the nature and seriousness of the allegations made by V in her statement to Police, the repeated transport of firearms directly past her property would present an unacceptable risk to public safety. His evidence was that her house is set back 300 metres from the road, and the house on his property is set back 400 m from the road. Noting the property was only purchased about six months ago, the Respondent submitted that insufficient time has lapsed to enable the Tribunal to be comfortably satisfied that the Applicant could use firearms on a property in such close proximity to V’s without there being a risk to public safety. The Applicant observed that both his own property and V’s property have sophisticated surveillance systems due to the value of their stock and equipment. The Respondent was critical of the Applicant for not providing evidence of the systems, but his evidence was unchallenged. The Applicant observed that 2½ years have elapsed since V’s complaint, and there has been no issues in respect of his conduct with respect to her since that time.

26. I also observe that V had given the Applicant written permission to carry and use firearms on her several properties only a short while before she sought an IAVO against him. She clearly had no concerns for her safety at that time, notwithstanding, on her report to Police, the relationship was deteriorating from at least December 2022, a month before her consent. There was no evidence that she had revoked that consent which would seem a likely step to take in the circumstances where the relationship was not only at an end but that she feared for her safety.

27. The Applicant provided many references all of which speak very highly of his character, and of his long history of community service. With the exception John Niland and Mark Morrison, none of the referees addresses the Applicant's conduct leading to the IAVO being issued, nor the relationship between the Applicant and V. The statements are therefore, it was submitted, of little utility to the key issue before the Tribunal particularly as there is nothing to indicate that any of them were in possession of, or had actual knowledge of, the full range of material before the Tribunal. I observe that the same might be said of any referee who is not provided with the s 58 documents and the Applicant’s evidence. The Applicant explained that he did not want his associates to know the details of what had occurred between him and V. It is settled law that little weight can be given to the references provided by an applicant if it is unclear whether the referees were aware of the applicant’s offences and whether, despite those offences they still believe the person to be of good fame and character: Sawires v Commissioner of Police [2010] NSWADT 4 at [52] and [53]. In this matter though there are no “offences”, merely the sad and conflicting accounts of a failed relationship. The many references provided by the Applicant are, however, all consistent – the Applicant is a person held in high esteem in the community.

28. John Niland wrote that he had 'read the accusations' against the Applicant and states that is 'not the character [he has] come to know over the past 40 years'. The Respondent submitted that this does not outweigh the necessity of prioritising public safety in a manner consistent with the underlying principles of the firearms legislation. While that is assertion by the Respondent is true as far as it goes, Mr Niland’s account is to the effect that V’s allegations are inconsistent with the conduct of the person he knows. As observed, Mr Niland was not called for cross examination.

Public interest

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

43. The expression “public interest” is not defined in s 11(7), nor elsewhere in the Act, and a decision in relation to the public interest in this context is particularly informed by the underlying principles and objects of the Act and the strict controls under the Act in relation to licensing. 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 has regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual.

44. 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].

45. The discretion to make a decision in the public interestis not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23]. 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].

46. The Applicant has no criminal record and only a couple of traffic infringements. The “public interest” factor, however, allows a consideration of issues going beyond the character of an applicant to be taken into account; public safety is to be given paramount consideration: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 at [24].

47. 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].

48. I accept the Applicant has conducted himself in an exemplary manner for many years with only a couple of minor traffic infringements. The Applicant commented that V’s “lies” had been accepted as fact and that his own “pristine record” had been ignored. In particular, prior to his illness which, he said, precluded his meeting his mandatory participation requirements, the Applicant held a firearms licence “for over 30 years” without incident.

49. I accept that the allegations against the Applicant by his former partner are serious. It is well settled that the Tribunal is entitled to take into account an applicant’s conduct, whether or not that conduct has resulted in his being convicted of, or even charged with, criminal offences, in determining whether an applicant may hold a firearms licence: Joseph v Commissioner of Police [2017] NSWCA 31 at [62] – [64]. It is the conduct, rather than the conviction, that is of concern to the Tribunal: Estermanv Commissioner of Police [2014] NSWCATOD 70 at [30]. Here though, while the allegations against the Applicant are serious, they are untested. I do not accept the Applicant’s assertions that V has a mental health and/or drug problem, although this may be his conclusion after a long period of observation following her accident. Neither do I accept that the evidence supports a finding that her conduct was quite as the Applicant contended because I find the Applicant to be given to some hyperbole. Having said that though, I prefer his detailed evidence, upon which the Respondent had the opportunity to cross examine him, to the untested assertions by V. In circumstances where the Applicant’s evidence is in direct contradiction to those allegations, I am not prepared to attach great weight to those untested and uncorroborated assertions, particularly in circumstances where there has been a complete breakdown of the relationship which was underlying the allegations.

50. I accept that the Applicant has acquired a property near V. There was no suggestion that it was acquired with any intent to harass her because of its proximity. There was no evidence whatever that there has been any ongoing harassment of V and the Applicant’s unchallenged evidence is that he has not seen her at all since the IAVO was issued.

51. The Applicant said that he now seeks a firearms licence because of the prevalence of wild dogs in the area. He proposes to run sheep or cattle on his new property and needs a firearm in the event stock are injured. He proposes to keep one firearm there for that purpose and the rest, including vintage models, at his home. He noted his property manager does not have a firearms licence. He also said that he has developed a reputation for his humane treatment of animals and has been called upon to assist other property holders; for many years he had made himself available to put down people's companion pets and animals in a compassionate and affordable way (see, for example Carol Piper reference). I accept that, there is some public interest in law-abiding farmers and graziers having access to long arms: McGrath v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 98 (McGrath) at [66]. The caveat in McGrath is that those on the land having access to firearms must be law-abiding.

52. Private interests such as 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].

53. 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.

Conclusion

54. The evidence, in my view, does not establish a real and appreciable risk to public safety. I therefore find that it would not be contrary to the public interest for a licence to be issued to the Applicant.

55. Based on the facts and circumstances discussed above I am reasonably satisfied that the Applicant would possess and use firearms only in accordance with the strict legislative requirements. The underlying principles of the Act stated in s 3(1) 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. Ward decided that, in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". I am so satisfied.

DECISION

56. (1)   The decision under review is set aside.

1. A Category AB firearms licence is to be issued to the Applicant for recreational hunting and vermin control.

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 June 2025