Pollard v Commissioner of Police - [2021] NSWCATAD 252

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Pollard v Commissioner of Police [2021] NSWCATAD 252
Hearing dates: 19 August 2021
Date of orders: 25 August 2021
Decision date: 25 August 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:
The respondent’s decision to revoke the applicant’s licence is affirmed.

Catchwords:
ADMINISTRATIVE LAW – Firearms – Revocation of licence – Whether it is in the public interest for applicant to continue to hold licence – Whether applicant contravened a condition of the licence – Whether correct and preferable decision is to affirm revocation of licence
PRACTICE AND PROCEDURE - Where respondent applied for order under s 59 of the Administrative Decisions Review Act 1997 that respondent not be required to lodge a confidential document under s 58 of that Act - Whether order appropriate in circumstances where respondent sought to rely upon document at hearing

Legislation Cited:
Firearms Act 1996 (NSW)
Firearms Regulation 2017 (NSW)
Firearms Regulation 2006 (NSW) (repealed)
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited:
CYL v YZA [2017] NSWCATAP 105
Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7
Kioa v West (1985) 159 CLR 550
Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368
Oliver v Commissioner of Police, NSW Police Force [2017] NSWCATAD 95
Pollard v Commissioner of Police, NSW Police [2021] NSWCATAD 227
Ward v Commissioner of Police, NSW Police Force [2000] NSWADT 28

Category: Principal judgment
Parties: Howard Pollard (Applicant)
Commissioner of Police, NSW Police Force (Respondent)
Representation: Solicitors:
Tankard’s Law (Applicant)
Maddocks Lawyers (Respondent)

File Number(s): 2021/00159311
Publication restriction: Non-publication orders have been made in respect of certain confidential material pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

Mr Pollard’s firearms licence was revoked by the respondent following an inspection of his property at which police found that Mr Pollard was not storing his guns and ammunition safely.
I have found that Mr Pollard has contravened the conditions of his licence on a number of occasions since 2009. I have also found that it is not in the public interest for him to continue to hold a firearms licence, principally because this would pose a risk to public safety.
For these reasons, I have affirmed the respondent’s decision to revoke Mr Pollard’s firearms licence.

Background

Mr Pollard lives at a rural property in New South Wales. He conducts farming activities on the property.
According to the material filed by the respondent (“the Commissioner”), Mr Pollard has held a New South Wales firearms licence since at least 1998. Mr Pollard’s evidence is that he has lawfully been using firearms for 68 years. He is about 79 years old.
Mr Pollard’s 1998 firearms licence was issued for various purposes including for recreational hunting/vermin control and primary production. He has renewed it every few years since 1998.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pollard v Commissioner of Police

Details

AGLC: Pollard v Commissioner of Police [2021] NSWCATAD 252
Case: [2021] NSWCATAD 252
Decision Date: 25 August 2021

CaseChat Overview and Summary

The matter before the court involved Pollard, the applicant, and the Commissioner of Police, the respondent, where the dispute centred on the revocation of Pollard's firearm licence. The court was required to determine whether it was in the public interest for Pollard to continue holding the licence, whether he had contravened a condition of the licence, and whether the decision to affirm the revocation of the licence was the correct and preferable outcome. Additionally, the Commissioner applied for an order under section 59 of the Administrative Decisions Review Act 1997 to prevent Pollard from being required to lodge a confidential document under section 58 of that Act. The Commissioner sought to rely on the document during the hearing.

The court found that Pollard had contravened a condition of his licence, which related to the proper storage of firearms. The court held that the Commissioner's decision to revoke Pollard's licence was in the public interest, as it was necessary to protect the safety and security of the community. The court also held that the Commissioner's decision to affirm the revocation of Pollard's licence was the correct and preferable outcome, as Pollard had failed to demonstrate that the revocation was unjust or unreasonable. Furthermore, the court denied the Commissioner's application for an order under section 59 of the Administrative Decisions Review Act 1997, as the document in question was relevant to the hearing and its exclusion would have been unfair to the Commissioner.

The court's decision was that the revocation of Pollard's firearm licence was affirmed. The court held that Pollard had contravened a condition of his licence and that the revocation was in the public interest. The court also held that the Commissioner's decision to affirm the revocation was the correct and preferable outcome. Finally, the court denied the Commissioner's application for an order under section 59 of the Administrative Decisions Review Act 1997.

Orders

Orders of the court

The respondent’s decision to revoke the applicant’s licence is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Pollard v Commissioner of Police [2021] NSWCATAD 252
Hearing dates:	19 August 2021
Date of orders:	25 August 2021
Decision date:	25 August 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	The respondent’s decision to revoke the applicant’s licence is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Firearms – Revocation of licence – Whether it is in the public interest for applicant to continue to hold licence – Whether applicant contravened a condition of the licence – Whether correct and preferable decision is to affirm revocation of licence PRACTICE AND PROCEDURE - Where respondent applied for order under s 59 of the Administrative Decisions Review Act 1997 that respondent not be required to lodge a confidential document under s 58 of that Act - Whether order appropriate in circumstances where respondent sought to rely upon document at hearing
Legislation Cited:	Firearms Act 1996 (NSW) Firearms Regulation 2017 (NSW) Firearms Regulation 2006 (NSW) (repealed) Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW)
Cases Cited:	CYL v YZA [2017] NSWCATAP 105 Davos v Commissioner of Police, New South Wales Police Force [2013] NSWADT 7 Kioa v West (1985) 159 CLR 550 Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 Oliver v Commissioner of Police, NSW Police Force [2017] NSWCATAD 95 Pollard v Commissioner of Police, NSW Police [2021] NSWCATAD 227 Ward v Commissioner of Police, NSW Police Force [2000] NSWADT 28
Category:	Principal judgment
Parties:	Howard Pollard (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Solicitors: Tankard’s Law (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	2021/00159311
Publication restriction:	Non-publication orders have been made in respect of certain confidential material pursuant to s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013 (NSW).