Pfister v Commissioner of Police, NSW Police Force

[2023] NSWCATAD 287

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Pfister v Commissioner of Police, NSW Police Force [2023] NSWCATAD 287

Hearing dates:

26 April 2023

Date of orders:

03 November 2023

Decision date:

03 November 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member

Decision:

The decision of the Commissioner of Police to refuse Mr Pfister a Category ABH firearms licence is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Firearms Act 1996 – Application for a Category ABH firearms licence – genuine reason for having a licence – alleged aggressive behaviour and failure to store firearms safely – fit and proper person - public interest and public safety

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Firearms Act 1996

Firearms Regulation 2017

Cases Cited:

Australian Broadcasting Tribunal v Bond [1990] HCA 33

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

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Lukas v Commissioner of Police [2021] NSWCATAD 268

McKenzie v Commissioner of Police, NSW Police Force [2021] NSWCATAD 230

Todororovski v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 192

Wright v Commissioner of Police [2022] NSWCATAD 208

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Markus Pfister (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (self-represented)
McCullough Robertson Lawyers (Respondent)

File Number(s):

2022/00346326

Publication restriction:

1. Pursuant to sections 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the following is prohibited:

(a) evidence given and submissions made before the Tribunal on 26 April 2023 about the contents of the Confidential Material, including any recordings made of the Private Hearing on 26 April 2023.

(b) the contents of, or material contained in, the Confidential Material.

(c) The material in those paragraphs marked ‘[NOT FOR PUBLICATION]’.

2. Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013, the disclosure of the following is restricted to the Commissioner of Police, legal representatives for the Commissioner of Police and the Tribunal:

(a) evidence given and submissions made before the Tribunal about the contents of the Confidential Material.
(b) the contents of, or material contained in, the Confidential Material

3. Note: The ‘Confidential Material’ is the material filed by the Respondent on 27 March 2023 and on 20 January 2023 marked ‘Confidential’

REASONS FOR DECISION

1. This case is about a decision made by the Commissioner of Police to refuse Mr Pfister a Category ABH firearms licence.

2. The Commissioner of Police (‘Commissioner’) refused to grant the firearms licence on the basis that Mr Pfister had an ongoing dispute with his ex-wife and this raised concerns about public safety such that it would not be in the public interest for the licence to be granted.

Background

3. Mr Pfister was issued a probationary pistol licence on 13 April 2012 and this licence expired on 15 May 2013. He was granted a Category AB firearms licence from 1 October 2010 and a Category H firearms licence from 14 June 2013.

4. Mr Pfister’s Category ABH firearms licence was suspended on 7 January 2015 as the Commissioner held concerns about Mr Pfister’s ability to have continuous and responsible control over firearms and the Commissioner requested Mr Pfister undergo an assessment of his mental health. No such assessment was provided to the Commissioner at that time and Mr Pfister’s firearms licence was revoked on 24 August 2015.

5. Mr Pfister the requested an internal review of the revocation decision and provided a psychologist’s report in support. The Commissioner reviewed the decision on 13 January 2016 and observed that a special condition was warranted on the licence because of “domestic issues”, Mr Pfister’s failure to safely store some of his firearms and ammunition and because his wife’s mental health gave rise to concerns about an unacceptable risk to public safety. However, because Mr Pfister’s firearms licence would have already expired, the Commissioner told Mr Pfister he had to make a fresh licence application in order to obtain a firearms licence.

6. Mr Pfister made a fresh application for a Category ABH firearms licence on 18 April 2016. This application was then refused by the Commissioner. Following an internal review, the Commissioner issued Mr Pfister a Category ABH firearms licence on 17 May 2017, with a special condition imposed requiring Mr Pfister to not store or possess firearms at any address where his ex-partner resides or frequents. This decision was based on concerns raised about Mr Pfister’s ex-wife’s “psychological welfare”. The reviewer took the view that if Mr Pfister’s ex-wife was to obtain access to a firearm the result “could end in tragedy”.

7. On 27 June 2022 Mr Pfister applied for a renewal of a Category ABH firearms licence. On the application form he gave the following as genuine reasons for possessing and using firearms:

• target shooting – member of an approved target shooting club

• recreational hunting/vermin control – member of an approved hunting club

8. On 11 July 2022 the Commissioner refused Mr Pfister a firearms licence. The Commissioner took into consideration the events on or around 4 June 2021 and 2 July 2022 when police seized Mr Pfister’s firearms after verbal arguments between Mr Pfister and his ex-partner. The Commissioner considered that there would be ongoing ties between Mr Pfister and his ex-partner despite their separation, given that their children were six and eight years of age. The Commissioner decided that there would be increased public safety concerns if Mr Pfister was to have authority to access firearms and it would be contrary to the public interest to grant him a firearms licence.

9. On 21 July 2022 Mr Pfister requested an internal review of the decision to refuse him a firearms licence and provided a detailed submission in support of the internal review request on 30 August 2022. The internal review had not been conducted as at the time of the Tribunal’s hearing.

10. On 10 November 2022 Mr Pfister lodged an application for review of the 11 July 2022 decision to refuse him a firearms licence.

11. In these reasons for decision I have sometimes referred to Mr Pfister’s now ex-wife as “ex-wife” including during the periods when they were in a relationship for simplicity.

Relevant legislation

12. The relevant legislation governing the issue of firearms licences is the Firearms Act 1996. The underlying principles in section 3(1) 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, and

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

13. Subsection 3(2) sets of the objects of the Firearms Act 1996, which include:

…(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 supply of firearms,

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

14. Subsection 11(3)(a) of the Firearms Act 1996 states that a licence must not be issued unless 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.”

15. A licence must not be issued unless the Commissioner is satisfied that “the storage and safety requirements set out in Part 4 [of the Firearms Act 1996] are capable of being met by the applicant”: subsection 11(3)(c) of the Firearms Act 1996.

16. Subsection 11(4) specifies that a licence must not be issued if:

…the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of –

(a) the applicant’s way of living or domestic circumstances, or

(b) any previous attempt by the applicant to commit suicide or cause self-inflicted injury, or

(c) the applicant’s intemperate habits or being of unsound mind.

17. A licence must not be issued if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information, that the person is “a risk to public safety” and issuing a firearms license would be “contrary to the public interest”: subsection 11(5A) of the Firearms Act 1996.

18. The Commissioner may also refuse to issue a licence if the Commissioner considers that to do so would be “contrary to the public interest”: subsection 11(7) of the Firearms Act 1996.

19. The Commissioner must not issue a licence that authorises the possession and use of a firearm unless satisfied the applicant has a genuine reason for possessing or using the firearm: section 12(1) of Firearms Act 1996.

20. Part 10 of the Firearms Regulation 2017 sets out the participation requirements for certain categories of firearms licence, including:

21. Category H (sport/target shooting) licences – for pistols

22. Sport/target shooting licences which are not category H licences

23. Licences for recreational hunting/vermin control

24. Firearms collector licences

Depending on the category of licence and the genuine reason given for possessing and using the firearm, a person must satisfy certain participation requirements such as membership of a pistol club, shooting or hunting club and also participation in a certain number of shooting or hunting club activities within the applicable compliance period.

Administrative review jurisdiction

25. The Tribunal’s jurisdiction to review a decision of the Commissioner of Police to refuse to issue a firearms license is derived from section 75(1)(a) of the Firearms Act 1996. That jurisdiction is exercised under the Administrative Decisions Review Act 1997.

26. When conducting an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: section 63 of the Administrative Decisions Review Act 1997.

27. The Tribunal is not confined to only considering the material that was before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

The hearing

Mr Pfister’s evidence

Genuine reason

28. Mr Pfister said he required a firearms licence for the genuine reasons of target shooting, hunting and vermin control and collecting firearms. He said he was a member of two clubs: Sporting Shooters Association of Australia (‘SSAA’) and Campbelltown Liverpool Districts Pistol Club (‘pistol club’). He said he did not attend SSAA as often but was “absolutely compliant” with the participation requirements of the pistol club.

29. Mr Pfister said he was involved on vermin control on a family farm and that he had been hunting in late May or early June 2022.

30. Mr Pfister agreed with Nathan Roberts, the legal representative for the Commissioner, that the minimum attendance requirements set by the Firearms Registry were four attendances for target shooting and two attendances for hunting activities over the period 1 April to 31 March. He agreed that according to the records of SSAA NSW he had attended no target and no hunting activities at the club in the 2014/2015 and 2015/2016 years. Mr Pfister explained this as due to his firearms being confiscated when he came to the attention of police in 2015.

31. Mr Roberts also drew Mr Pfister’s attention to the SSAA NSW records which showed that he had not participated in any target or hunting activities with SSAA NSW in the 2016/2017 and 2017/2018 years. Mr Roberts put to Mr Pfister that he had a firearms licence from May 2017 and yet in the 2017/2018 year he did not participate in target or hunting activities with SSAA NSW and in the 2018/2019 year he participated in one target and one hunting activity, which was not in compliance with the number of required activities. Mr Pfister agreed that in the 2019/2020 year he had also not complied with the required number of activities, having participated in two target and one hunting activity.

32. Mr Pfister said that he had not been compliant in 2020/2021 as the Covid pandemic had intervened.

33. Mr Roberts drew Mr Pfister’s attention to correspondence from SSAA NSW which stated that Mr Pfister’s membership expired on 31 October 2019. Mr Pfister agreed his membership had expired and stated that this was a surprise to him. He said he had been under the impression that he was still a member of the club but conceded that he had to accept what was recorded in the document by the SSAA NSW. He agreed that the last time he participated in an SSAA shooting event was in 2019/2020, some two or three years ago.

34. Mr Roberts took Mr Pfister to his 27 June 2022 firearms licence renewal application form. Mr Pfister agreed he had stated on that online form that he relied on being a member of a target shooting club and a hunting club. He agreed that he did not rely on not being a landholder or having permission to shoot from a rural landowner for his genuine reason of recreational hunting/vermin control.

35. Mr Roberts referred Mr Pfister to the answer he gave in the form where he stated that there had been no change to the information or documentary evidence previously provided in support of the genuine reasons and categories. In an earlier firearms application, completed on 18 April 2016, Mr Pfister relied on his membership of SSAA for the genuine reasons of sport/target shooting for his Category A and B firearms and the pistol club for Category H firearms. For the genuine reason of recreational hunting/vermin control, Mr Pfister relied on his SSAA membership for Category A and B firearms.

36. Mr Pfister conceded that he had to accept that at the time of completing the renewal application on 27 June 2022 he was no longer a member of SSAA NSW. He said that he did not know until giving his evidence that his membership had expired. He said he paid his membership fee, but it was possible that the payment was declined.

37. Mr Roberts put to Mr Pfister that he was more interested in pistols, and he had deliberately let the SSAA membership lapse. Mr Pfister denied that he had deliberately allowed the membership to lapse.

Incidents involving ex-wife and daughters

38. Mr Pfister said that he married his now ex-wife in 2008 and separated from her in 2016. They have two primary school aged children.

39. Mr Pfister said he generally has the two girls a certain number of nights per fortnight and also in the school holidays. Handover of the girls generally occurs by Mr Pfister picking them up on a Friday from out of school hours care (OOSH) and then dropping them to school Monday morning. He has the girls on Friday, Saturday and Sunday each week.

40. Mr Pfister described his relationship with his ex-wife as “up and down” and that throughout the time they were married until now it had depended “entirely on her mood”.

Incident on 6 January 2015

41. Mr Roberts took Mr Pfister to records from the Computerised Operational Policing System (COPS) held by NSW Police. Entries in the COPS record stated that Police attended Mr Pfister’s home on 6 January 2015 after being contacted by Mr Pfister’s then wife. Police record that she had kicked Mr Pfister in the leg to get his attention to get him to mind their eleven month old baby while she was cooking. A verbal argument is said to have occurred and when she attempted to get her phone from him and he grabbed her wrist. After she called Police, Mr Pfister is said to have locked her outside the house. She then re-entered the house through another door. Mr Pfister then collected some of his firearms and left. The Police arrived just as Mr Pfister was leaving the property in his vehicle. Police searched the vehicle and found and seized five firearms from his boot.

42. Police record in the COPS records that they seized another three firearms from the house and “a large amount” of ammunition. Police state that these items were found in the safe in the basement of the house and that they found to door of the safe unlocked and open. Ammunition casings were seized from a small safe in a wardrobe.

43. Police suspended Mr Pfister’s firearms licence and seized his firearms. Police also obtained a provisional apprehended violence order (‘AVO’) against him for the protection of his wife. According to Police COPS records, the AVO application was then “withdrawn/dismissed” when the matter went to court.

44. Under questioning about this incident, Mr Pfister said that his wife had kicked him “out of the blue” and asked him to pick up a grain of rice. He said that he was “pretty sure” that he did not grab her wrist at all. He said his version of events had prevailed as the AVO application was later withdrawn at court. He agreed he had locked the doors, leaving his wife outside.

45. Mr Pfister told the Tribunal that he went to his gun safe in order to get his guns. He explained that he had two safes and that both were locked.

46. Mr Roberts asked Mr Pfister why he had accessed the safes during an argument with his wife. He said that his wife was threatening to call Police and that he was packing the firearms into his car to pre-emptively surrender them to Police. He said he thought that was the “prudent thing to do”.

47. Mr Roberts asked Mr Pfister whether he thought that his opening his gun safe during an argument might frighten his wife. Mr Pfister said he did not accept that would frighten her. Mr Roberts said Police were responding to a domestic incident and Mr Pfister had his guns in his hands, to which Mr Pfister responded by saying he had his firearms locked in his car.

48. Mr Roberts put to Mr Pfister that he had five firearms in his car but three remained in an unlocked gun safe. Mr Pfister said he did not accept that was the case. When asked again, Mr Pfister said that he accepted that “it may be true” but that he did “not agree that it is true” that he left a safe unlocked with firearms in it. He accepted that in the “stress and complexity” of the moment he may have left the safe open.

49. Mr Roberts put to Mr Pfister that having three unsecured firearms and an eleven month old baby in the house was dangerous. Mr Pfister did not accept it was dangerous and said the safe must have been locked as that was the law and also his practice.

Incident on 3 June 2021

50. Mr Roberts took Mr Pfister to the COPS records which described an incident following a dispute between Mr Pfister and his ex-wife about Covid-testing the children after they had been to Melbourne, which became a Covid hotspot. He said minor car accident then occurred when his ex-wife ran into the back of his car and they both travelled on to the children’s school.

51. Police allege in the COPS records that once at the school Mr Pfister took hold of his eldest daughter and put her in his car “in an attempt to get the Covid swabs”. Mr Pfister agreed he took hold of his daughter and put her in the car. When asked whether he did this was against his daughter’s wishes, Mr Pfister said “yes, somewhat”. When asked whether he used force to put his daughter in the car, Mr Pfister said “I picked her up”. He said his ex-wife was shouting and screaming and was grabbing at him.

52. Police required Mr Pfister to surrender his firearms and firearms licence for a period of 28 days. He was also required to bring the children in the police station for a welfare check.

Incident on 1 July 2022

53. Police COPS records show that on 1 July 2022 Mr Pfister’s ex-wife contacted Police to report a “scuffle” following a verbal argument between her and Mr Pfister. Mr Pfister’s ex-wife told Police she has kept one of their daughters home from school as she was sick and that Mr Pfister thought she was lying about the illness in order to keep the children longer, rather than hand them over to him at the agreed time. Mr Pfister is alleged to have “pick[ed] up both daughters” to take them to the car. His ex-wife told Police that she grabbed hold of one of the daughters and Police records that a “scuffle” ensued and Mr Pfister’s ex-wife was allegedly elbowed in the chest by Mr Pfister. Police then took actions to seize various firearms registered to Mr Pfister.

54. Mr Pfister gave his account of that incident and said he was surprised when he attended Out of School Hours Care (OOSH) to pick up his daughters that one had stayed home from school. He said that he gave his ex-wife the choice about whether he would just take the daughter who had attended school or whether he would take both daughters to stay with him. He agreed that his eldest daughter did “resist a little” about coming with him and said she was most emotionally attached to her mother. When asked whether he had elbowed his ex-wife, Mr Pfister said that he accepted that may have happened and was a possibility, but that he was of the view that it did not happen.

Incident on 7 November 2022

55. On 8 November 2022 Police recorded in COPS that Mr Pfister’s ex-wife made a report to Police that the eldest daughter had been assaulted by Mr Pfister. Both daughters are recorded in the COPS entry as stating to Police that they are “scared around their father and do not wish to see him”. The eldest daughter said that this was because her father “becomes angry easy and yells a lot”.

56. The eldest daughter told Police that on 7 November 2022 her father did not want her to take a bag that she insisted on taking. She alleged that Mr Pfister grabbed her on the arm puling her back and yelling at her. In an interview with Police on 2 December 2022 the eldest daughter said that that Mr Pfister “pulled [her] shirt and he started saying F words and stuff”. She said that when Mr Pfister grabbed her shirt it made her choke. She also told Police her father usually pulls her ear. Police noted that she had not been grabbed on the arm. Police decided that no further action should be taken.

57. Mr Pfister’s ex-wife told Police that he attends her home and at times is verbally aggressive. She said she did not want him to attend her home.

58. Mr Roberts questioned Mr Pfister about the incident on 7 November 2022. Mr Pfister explained that there was an issue about whether his daughter had her school uniform for Monday as she was in her sports uniform. He said that he had no recollection, but thought he picked his daughter up under the arms rather than pulled her by the collar. He agreed that he does swear when he is in the car and driving and that this occurred “more often than ideally one would”. He admitted to having pulled his daughter’s ear but stated that he had done that on only three occasions in her life.

59. Mr Pfister said that he had not attended at his ex-wife’s residence since about November or December 2022, but he would occasionally drop the girls off in the car park near her place. He said that he and his ex-wife were using OOSH as the handover method so that they do not have to interact. He said that he and his ex-wife were getting into arguments but denied that he was verbally aggressive.

Evidence of Mr Damian Harkin

60. Mr Pfister called Mr Harkin to give oral evidence. Mr Harkin said he had known Mr Pfister for over three years, the two having met each other because their daughters became friends. Mr Harkin described Mr Pfister as a good father and that he had never seen Mr Pfister be rough or aggressive. He said he considered Mr Pfister was a responsible, law abiding person. Mr Harkin said he had spoken to Mr Pfister’s ex-wife about her “manhandling” the girls.

Other open material relied on by the parties

Child Abuse Squad contact with Mr Pfister

61. An officer from the Child Abuse Squad, NSW Police Force, contacted Mr Pfister on 28 July 2023. Mr Pfister addresses this in his written material, pointing out that the Child Abuse Squad investigation was finalised on 21 September 2022 and there were no charges laid and no further action taken.

62. Mr Pfister states that he believes that there were child sexual abuse allegations made about him and that these allegations were vexatious. He states the allegations made appear to have been that he perpetrated child sexual abuse against his two daughters. The Child Abuse Squad suggested that Mr Pfister cease sharing a bed with his daughters when they had overnight visits with him. He responded in his written evidence to explain that both daughters have been conditioned to co-sleep with either their mother or himself and if they can’t sleep with a parent they will often sleep with each other. He said that his daughters have been co-sleeping from when they were babies. He explained that has had some success in having them start the night in their own beds.

Character references

63. Mr Pfister relied on a number of references, obtained from the following members of the Campbelltown Liverpool Districts Pistol Club:

• President

• Former President and Club Armourer

• Secretary and Club Armourer

• Treasurer

64. The referees describe Mr Pfister as someone with a longstanding involvement in the pistol club, including as a committee member and Vice-Captain. As Vice-Captain Mr Pfister was responsible for certain safety skills and safe handing training. He also held responsibilities for the supervision of “try shooters” and probationary licence holders. He is said to attend the pistol club about once per week and is described as someone who is happy to volunteer his time. Mr Pfister is considered to be a valuable member of the pistol club and described as a person who obeys the safety rules at all times. Referees described Mr Pfister as a calming influence and who has helped resolve disagreements between others. He has not been observed to raise his voice in anger.

65. I make the following observations about these character references. The referees have known Mr Pfister for a long time, approximately ten years or more. They speak of Mr Pfister’s substantial contribution to the pistol club including as Vice-Captain, including his willingness to volunteer his time and taking on responsibilities including in the areas of safety and training. The referees do not refer to any of the COPS records or allegations made about Mr Pfister’s conduct on 6
    January 2015, 3 June 2021, 1 July 2022 or 7 November 2022 or contact with the child abuse squad. One reference is made to the AVO issued against Mr Pfister which is described as withdrawn by Police due to “inappropriateness”, without further comment or explanation.

Confidential hearing

66. I conducted part of the hearing on 26 April 2023 as a confidential hearing under section 49 of the Civil and Administrative Tribunal Act 2013 to deal with the ‘Confidential Material’, which is the material filed by the Respondent on 27 March 2023 and on 20 January 2023 and marked 'Confidential'. This confidential hearing was conducted in the absence of Mr Pfister and the public.

67. The Tribunal, differently constituted, made an order on 1 February 2023 under section 59(2) of the Administrative Decisions Review Act 1997 that the Commissioner was not required to lodge copies of the Confidential Material as part of the section 58 documents. The Tribunal also made orders prohibiting publication of the Confidential material and restricting disclosure of the Confidential Material to the Commissioner, the Commissioner’s legal representatives and the Tribunal, pursuant to sections 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013.

68. I decided to conduct part of the hearing as a confidential hearing to hear the Commissioner’s legal representative on the nature of the Confidential Material and its relevance and probative value to the issues before the Tribunal.

69. [NOT FOR PUBLICATION]

70. [NOT FOR PUBLICATION]

71. [NOT FOR PUBLICATION]

72. [NOT FOR PUBLICATION]

73. [NOT FOR PUBLICATION]

74. [NOT FOR PUBLICATION]

Mr Pfister’s written statements and submissions

75. Mr Pfister said that he had spent approximately five years as a Committee Member of the pistol club. He said he intended to use his firearms licence to get work as a security guard and to earn some income from hunting/vermin control work.

76. Mr Pfister agreed that he did not meet the participation requirements for sport/target shooters (other than pistol shooters). He said he intends to remedy this. He suggested that one option for the Tribunal to deal with this shortcoming would be to grant him a firearms licence but with target shooting removed as a genuine reason for the Category B licence. Another option he suggests is open to the Tribunal is to allow him an opportunity to resign his Category B licence.

77. Mr Pfister denied being involved in any domestic violence incidents, other than as a victim. He said that he had only been the subject of an interim apprehended violence order in 2015 but that was subsequently withdrawn by Police. He said that his ex-wife makes false complaints which are linked to “divorce-related events” such as a mediation or a reduction in child support.

78. In relation to the 2015 incident, Mr Pfister said that it appeared that his ex-wife was calling the Police and he was “horrified” and decided to take his firearms to the Police station to surrender them. He said he did not pack all his firearms in his car, leaving his centrefire rifles behind because they had expensive scopes on them and had to be carried one at a time and he had to go through a “complex procedure” to keep them secure and also “run the gauntlet” of his ex-wife in order to bring them out to his car. He explained that the bolts had been removed and so these firearms were inoperable, and the bolts were stowed with his pistols in the car. Mr Pfister denied an allegation said to be made by his ex-wife that he would wake her in the middle of the night yelling “I am going to kill you”.

79. Mr Pfister addressed whether he had met the safe storage requirements. He explained that he had disabled the keypad to his safe, using a key only to operate the safe, because of concerns the keypad might be able to be opened by a sharp tap from an object. He said he believed that Police had recorded this discussion incorrectly and in fact the safe was not left unlocked. He added that if there was a “lapse” on his part it would have been “due to the extreme stress of the evening and not deliberate or wilfully negligent.” He agreed that it was possible that he may have “inadvertently made an error in securing my firearms” but did not “concede this”.

80. Mr Pfister described the 1 July 2022 incident involving his arrival at OOSH to discover his daughters were not there as one was home sick that day. He said he physically picked up his eldest daughter and as his ex-wife grabbed one of the daughter’s limbs, he pulled away and she grabbed the opposite limb and he then broke free and left. He states that his elbow did not connect with his ex-wife’s chest.

81. Mr Pfister said that his ex-wife had sought to deny him custody of the girls for periods of time. He described her as “clearly psychologically unwell”.

82. Mr Pfister stated that any complaint made about him to Police alleging he engaged in child abuse of his children was vexatious or misconceived.

83. In relation to the 9 November 2022 incident, Mr Pfister said that his eldest daughter was pretending to be reluctant and to resist coming with him in his car to school. He carried her to his car. The same happened with the younger daughter who thought it was hilarious.

84. Mr Pfister referred to the case of Wright v Commissioner of Police [2022] NSWCATAD 208. He said that in that case the Tribunal found that the decision-maker had not engaged with the material and had simply equated reports to police about domestic disputes with providing a probative basis for refusing the applicant’s firearms licence. He submitted that the same applied in his case.

85. Mr Pfister also stated that it was in the public interest for him to participate in a sport, engage in pest control and engage in collecting activities.

Commissioner’s submissions

86. The Commissioner submitted that the Tribunal ought affirm the decision to refuse Mr Pfister’s application for a firearms licence because:

• Issuing the licence would be contrary to the public interest given Mr Pfister’s involvement in “domestic violence incidents”, his failure to meet the participation requirements and his provision of misleading information on the 27 June 2022 application form.

• The Tribunal could not be satisfied that Mr Pfister is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.

• The Tribunal could not be satisfied that Mr Pfister has a genuine reason for possessing or using firearms requiring a Category A or B firearms licence as he has not satisfied the requirements for the genuine reasons he relied on in his firearms licence application.

Consideration

Internal review taken to be finalised and extension of time granted

87. No internal review was completed in respect of the 11 July 2022 decision to refuse a firearms licence. Section 53(9) of the Administrative Decisions Review Act 1997 applies and as the Commissioner did not notify Mr Pfister of the outcome of any internal review within 21 days after he requested an internal review, the internal review is taken to be finalised.

88. On 20 December 2022 the Tribunal granted an extension of time for Mr Pfister to file the application for review.

Findings and conclusions about the open evidence

Incidents involving ex-wife and daughters

89. On the evidence, I find that Mr Pfister acted in an impulsive manner on 6 January 2015 by removing some of his firearms from one of the safes during an argument with his ex-wife. I also find on the available evidence that in doing so, Mr Pfister failed to lock one of the safes leaving three firearms unsecured in that safe. I came to this conclusion because I accept it is more likely that the account in the COPS records about the safe being unlocked is true. Under cross-examination Mr Pfister maintained that he had in fact locked the safe but did concede that it “may be true” that he did not lock the safe. He conceded that in the “stress and complexity” of the moment he may have left the safe open. I find on balance that he in fact did leave the safe unlocked. I do not agree that Police would have mistaken or incorrectly recorded that the safe was unlocked because Mr Pfister had disabled the keypad for the safe.

90. I find that Mr Pfister has at times resorted to physical means when faced with conflictual situations involving his ex-wife and children. I accept that on 6 January 2015 Mr Pfister grabbed his ex-wife’s wrist and also locked her out of the house. I accept that earlier in that incident Mr Pfister’s ex-wife had kicked him.

91. I also accept that on 3 June 2021 Mr Pfister was involved in an argument with his ex-wife. He physically took hold of his seven year old daughter and put her in his car against his daughter’s wishes. I accept Mr Pfister’s evidence that his ex-wife was shouting and screaming and was grabbing at him at the time.

92. I find that on 1 July 2022 when engaged in an argument with his ex-wife, Mr Pfister physically picked up his daughters to take them to his car. I find that Mr Pfister’s eldest daughter was resisting going with him. I accept that Mr Pfister’s ex-wife also grabbed hold of one of the daughters. I am not satisfied that Mr Pfister deliberately elbowed his wife in the chest, rather that this occurred as a result of Mr Pfister’s attempts to remove his daughter when his ex-wife also grabbed hold of the daughter.

93. I find that on 7 November 2022, following a disagreement, Mr Pfister pulled his eldest daughter’s shirt and swore. I prefer the account given by Mr Pfister’s elder daughter when she gave an interview with Police on 2 December 2022 in which she clarifies that she had not been grabbed on the arm. She clarified the earlier information recorded in the COPS entry from 9 November 2022 when Police were initially contacted by Mr Pfister’s ex-wife following the incident. I prefer this later account as the details were obtained from the eldest daughter directly rather than in the context of an informal discussion between Police, Mr Pfister’s ex-wife and the children. As recorded in the COPS event, Mr Pfister’s ex-wife did not see what took place. I do not accept Mr Pfister’s account that his daughter was pretending to resist or be reluctant to go with him, preferring the account that his daughter gave to Police.

94. I am not satisfied that Mr Pfister usually pulls his daughter’s ear as that is not supported by Mr Pfister’s evidence and there is no further detail provided concerning this.

95. I note that Mr Pfister’s conduct on 6 January 2015 resulted in Police taking out a provisional apprehended violence order (‘AVO’) against him for the protection of his ex-wife. This application was ultimately withdrawn or dismissed. Police also acted to seize Mr Pfister’s firearms after the 3 June 2021 and 1
    July 2022 incidents for a short period.

96. I do not draw any conclusions from the withdrawal or dismissal of the AVO application. There can be a number of reasons as to why such applications are withdrawn or dismissed, including if the complainant decides she does not wish to pursue the order. There is no information as to why in this case the application did not proceed.

Genuine reasons and giving false information

97. I find that Mr Pfister relied on being a member of a target shooting club and a hunting club for the genuine reasons of sport/target shooting and recreational hunting/vermin control for his Category A and B licence.

98. While he did have written permission from a landowner to shoot on their land, he only relied on this in his 2010 application for a firearms licence. On all applications following that, Mr Pfister relied on his SSAA membership to establish these genuine reasons. Mr Pfister agreed in oral evidence that he did not rely on not being a landholder or having permission to shoot from a rural landowner for his genuine reason of recreational hunting/vermin control.

99. I accept that Mr Pfister’s membership of the SSAA lapsed 31 October 2019.

100. I find that despite being re-issued with a Category ABH firearms licence on 17 May 2017, Mr Pfister did not participate in four shooting activities and two hunting club events of the SSAA in the following compliance periods (being 1 April to 31 March the following year):

• 2017/2018

• 2018/2019

• 2019/2020

101. Mr Pfister therefore did not meet the participation requirements for sport/target shooting (for non-pistol shooters) on the basis of being a member of an approved target shooting club and recreational hunting/vermin control on the basis of membership of an approved hunting club. The participation requirements are set out in clauses 107 and 108 of the Firearms Regulation2017 and require participation in four shooting activities and two hunting club events.

102. I am not satisfied that Mr Pfister deliberately did not renew his SSAA membership. Rather, I accept his evidence that this was inadvertent.

103. I accept the uncontested evidence that Mr Pfister was involved in vermin control on a family farm and he had been hunting in late May or early June. However, Mr Pfister did not proffer this as a ground on which he sought to establish the genuine reason of hunting/vermin control when he applied for his firearms licence or at the hearing.

104. I agree with the Respondent’s submission that Mr Pfister’s main reason for seeking a firearms licence is in order to possess and use pistols. The fact that Mr Pfister did not realise his SSAA membership had lapsed on 31 October 2019 is indicative of his lack of engagement in that club.

101. I do not reach a conclusion on the evidence that Mr Pfister knowingly provided false or misleading information on his 27 June 2022 renewal application form. In that form he stated there was no change to the information or supporting documents for the genuine reasons previously presented to the Firearms Registry. By this answer Mr Pfister continued to rely on his membership of the SSAA for the genuine reasons of sport/target shooting and recreational hunting/vermin control for his Category A and B firearms despite not being a member of the SSAA at the date of completion of the form.

102. I conclude that Mr Pfister cannot establish a genuine reason for the possession and use of firearms other than pistols for sport/target shooting. I also conclude that Mr Pfister cannot establish the genuine reason of recreational hunting/vermin control on the basis of membership of an approved hunting club. The Category AB firearms licence must therefore not be issued. Section 12(1) of the Firearms Act 1996 provides that a licence must not be issued unless the applicant has a genuine reason, which includes satisfying the requirements for the genuine reasons claimed.

Failure to comply with licence conditions

107. It follows from the finding that Mr Pfister failed to lock one of the safes leaving three firearms unsecured in that safe that Mr Pfister was in breach of his licence conditions, which included that he comply with the relevant safe keeping and storage requirements: refer to section 19(2)(a) of the Firearms Act 1996. Those safe keeping requirements are set out in section 40(1)(a) and 41(1)(a) of the Firearms Act 1996 which provide that when Category A, B and H licence firearms are not being used or carried they must be stored in a locked receptacle or in the case of pistols a locked safe and there are certain requirements for the receptacle or safe to prevent it being penetrated or accessed.

Evidence of Mr Harkin and character references

108. Mr Harkin’s evidence was that Mr Pfister was a good father and he had never seen Mr Pfister be rough or aggressive and considered Mr Pfister was a responsible, law abiding person.

109. This evidence is of some assistance given that I have found that Mr Pfister had resorted to physical means from time to time when in conflict with his ex-wife or daughters. I have also found he breached the safe keeping requirements of the Firearms Act 1996 by leaving his safe unlocked.

110. The series of references from members of Campbelltown Liverpool Districts Pistol Club show Mr Pfister to be regularly involved in that club and that he took on responsibilities as a committee member and Vice-Captain. As Vice-Captain he held responsibilities for certain safety skills and safe handing training and for the supervision of “try shooters” and probationary licence holders. In the context of the Pistol Club, Mr Pfister was noted to obey the safety rules at all times and to be calm when faced with disagreements.

111. The references are of some assistance, but I only accord them limited weight as they do not indicate knowledge of Mr Pfister’s negative history: refer to Sawires v Commissioner of Police [2010] NSWADT 4 at [53]. None of the allegations made about Mr Pfister’s conduct on 6
     January 2015, 3 June 2021, 1 July 2022 or 7 November 2022 or contact with the child abuse squad are addressed by the referees. One reference is made to the AVO issued against Mr Pfister which is described as withdrawn by Police due to “inappropriateness”, without further comment.

Conclusions about the confidential documents and confidential hearing

112. [NOT FOR PUBLICATION]

113. [NOT FOR PUBLICATION]

114. [NOT FOR PUBLICATION]

115. [NOT FOR PUBLICATION]

Public interest

116. The Commissioner may refuse the firearms licence if he or she considers the issue of the licence would be contrary to the public interest: section 11(7) of the Firearms Act 1996. Consideration of the “public interest” includes issues beyond the character of the applicant and includes such concerns as 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 at [33].

117. In determining what is in the public interest, I must have regard to the underlying principles and objects of the legislation. The underlying principles in section 3(1) of the Firearms Act 1996 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, and

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

118. The objects in subsection 3(2) include:

…(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 supply of firearms,

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

119. The findings I have made about Mr Pfister’s failure to meet the participation requirements for the 2017/2018, 2018/2019 and 2019/2020 compliance periods are relevant to the question whether the issue of a licence to Mr Pfister would be contrary to the public interest.

120. In Todororovski v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 192, the Tribunal found the “total disregard” of the participation requirements over a period of five years was “a substantial dereliction that cannot be overlooked”.

121. The Tribunal made the following observation in the case of McKenzie v Commissioner of Police, NSW Police Force [2021] NSWCATAD 230 at [34]:

“…disregarding the requirement to support a genuine reason, particularly for a number of years, is not in the public interest. Allowing an individual who did not comply with the requirements or conditions of their licence to continue being granted a licence would diminish public confidence in the licensing regime…”

122. I have already found that Mr Pfister must be refused a Category AB firearms licence because he cannot establish a genuine reason. I have also found that Mr Pfister breached the safe keeping requirements by failing to secure his safe.

123. The public interest requires that licence holders comply with the legislative requirements, including the conditions of the licence and requirements for club membership and participation. Mr Pfister’s failure over a number of years to meet the participation requirements is significant. The failure to comply with the conditions of the licence by leaving firearms in an unlocked safe is also of concern. The proper functioning of the licensing system, as reflected in the objects of the Firearms Act 1996, depends on the giving of true and correct information in licence application forms, including about the basis for genuine reasons: Lukas v Commissioner of Police [2021] NSWCATAD 268 at [85].

124. Mr Pfister argues that there is a public interest in him being able to participate in a sport, engage in pest control and engage in collecting activities. These interests, if they can be said to involve public interests, are far outweighed by the public interest in the proper functioning of the licencing system so that public safety is maintained.

125. For these reasons, it is not in the public interest for Mr Pfister to be issued with a firearms licence. I am of this view despite the fact that no issue has been raised about Mr Pfister’s compliance with the participation requirements for a Category H licence for sport/target shooting. Mr Pfister’s suggestion that he relinquishes his Category B licence or that target shooting removed as a genuine reason for the Category B licence does not cure the problem that Mr Pfister has for many years disregarded the participation requirements other than pistols for sport/target shooting and also for recreational hunting/vermin control.

Fit and proper person

126. Given I have found it is not in the public interest for Mr Pfister to be issued with a firearms licence, it is not necessary for me to determine whether Mr Pfister is a fit and proper person and can be trusted to have possession of firearms without danger to the public safety or to the peace.

127. However, the parties both provided arguments on the issue of fit and proper person and so I proceeded to consider that question. I had regard to Mr Pfister’s past conduct and whether such conduct will reoccur as well as his character and reputation: Australian Broadcasting Tribunal v Bond [1990] HCA 33 per Toohey and Gaudron JJ at [36] cited in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at [26].

128. Mr Pfister placed some emphasis on the decision of Wright v Commissioner of Police [2022] NSWCATAD 208. In that case Mr Wright was involved in a number of “domestic incidents” but had not been convicted of any offence involving his partners and Interim Apprehended Violence Orders in 2018 and 2020 had been dismissed by the courts (refer to [3] and [10]). The facts included incidents where Mr Wright was alleged to have hit his partner after consuming alcohol (at [26]-[27]) and allegations by his former wife that pushed her over and locked her out of the house and on another occasion threw a kitchen table at her (at [57]). However, in that case the evidence of Mr Wright’s partner was discounted as she later said she was lying and the Tribunal found her to be an unsatisfactory witness ([100] and [104]). Police had also concluded that Mr Wright’s ex-wife’s complaint was “frivolous, bordering on vexatious” (at [72]).

129. Mr Pfister described his ex-wife as “psychologically unwell” and that his ex-wife makes false complaints motivated by the parties’ involvement in family law or child support disputes. The evidence presented before me is insufficient to ground such conclusions.

130. What is of assistance in Wright is the Tribunal’s comment that “a proper, realistic and reasonable consideration of the evidence” is required to determine whether there is an appreciable risk to public safety (at [37]).

131. While regrettable, the physical interactions between Mr Pfister and his ex-wife and daughters do not lead me to a finding that he is not a fit and proper person to hold a firearms licence. In drawing this conclusion, I also take into account the fact that he is well-regarded at the pistol club and made a substantial contribution to that club. I do not perceive Mr Pfister’s conduct to reach a level of concern that would lead me to find there is a real and appreciable risk to public safety or to the peace. The failure to lock the safe is something that I do not believe would occur in the future, given that Mr Pfister does not attend his ex-wife’s home and handover of the children occurs in a neutral setting.

132. I am therefore not satisfied that Mr Pfister is not a fit and proper person to be trusted with possession of firearms (as set out in section 11(3)(a) of the Firearms Act 1996).

CONCLUSIONS AND ORDERS

133. I have concluded that Mr Pfister cannot establish a genuine reason for a Category AB firearms licence and that it is contrary to the public interest for Mr Pfister to be issued with a firearms licence.

134. The decision of the Commissioner to refuse to grant Mr Pfister a Category ABH firearms licence is therefore affirmed.

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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: 03 November 2023