Schinckel v Registrar of Firearms - [2020] SASC 236

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
SCHINCKEL v REGISTRAR OF FIREARMS
[2020] SASC 236
Judgment of The Honourable Justice Bleby
11 December 2020
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENSING AND REGISTRATION - LICENCE OR PERMIT - REVOCATION, CANCELLATION, SUSPENSION OR SURRENDER
Application for permission to appeal a decision of the South Australian Civil and Administrative Tribunal.
On 2 April 2020, the appellant was convicted of two summary offences for contravening the Code of Practice for the Security, Storage and Transport of Firearms, Ammunition and Related Items. On 4 May 2020, a delegate of the respondent decided that the appellant was not a fit and proper person to hold a firearms licence, and cancelled the appellant’s licence. The appellant applied for review of that decision pursuant to s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (SACAT Act) and s 47 of the Firearms Act 2015 (SA). On 24 September 2020, the Tribunal affirmed the delegate’s decision.
On 26 October 2020, the appellant filed a Notice of Appeal in the Supreme Court pursuant to s 71(1)(b) of the SACAT Act. On 13 November 2020, the respondent filed an interlocutory application seeking an order that the question of leave to appeal be heard before the hearing of the appeal, and that leave be refused on the basis that it is not in the interests of justice for leave to be granted, as the subject matter of the appeal is not of sufficient substance to justify consideration.
The appellant proposes to advance five grounds of appeal:
1. The Tribunal Member erred in finding the appellant not to be a fit and proper person to hold a firearms licence.
2. The Tribunal Member erred in applying a test that it was for the appellant to persuade the Tribunal that there was no risk that the carelessness resulting in the applicant’s subject offending would be repeated.
3. The Tribunal Member ought to have found that the likelihood of any further breaches or lapses in care on the part of the appellant with respect to securing his firearms was minimal.
3.1. The appellant was a man of good reputation, honesty and integrity;
3.2. The consequences of the appellant’s offending had been severe and were likely to change his behaviour;
3.3. The appellant had learned his lesson and was unlikely to allow another lapse in care.
4. In the alternative, the Tribunal Member failed to give adequate consideration to the imposition of conditions limiting the number of firearms the appellant could possess or use, under section 20(9) of the Firearms Act 2015, as an alternative to cancellation of the appellant’s firearms licence.
5. Such further or other grounds as may be supplied by counsel prior to the hearing of this appeal.
Held, per Bleby J, refusing leave to appeal:
1. The Notice of Appeal does not identify a reasonably arguable error in the exercise of the discretion. Neither is it reasonably arguable that the decision of the Tribunal is manifestly unreasonable.
Firearms Act 1977 (SA) (repealed) ss 26A, 26B and 26C; Firearms Act 2015 (SA) ss 3(1)(a), 3(1)(b), 3(2), 7(3)(a), 7(3)(b), 7(4)(a), 7(4)(b)(iv), 20(9) 47; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 71(1)(b), 71(2), 71(3a); Supreme Court Rules 2006 (SA) (repealed); Uniform Civil Rules 2020 (SA) Rule 213.4(1), referred to.
Schinckel v Registrar of Firearms [2020] SACAT 73, applied.
Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Legal Profession Conduct Commissioner v Fowler [2020] SASCFC 65; Pix v South Australian Housing Trust (2016) 125 SASR 10; Resi Corporation v Munzer [2016] SASCFC 15; Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180, considered.

SCHINCKEL v REGISTRAR OF FIREARMS
[2020] SASC 236
Civil: Permission to Appeal

BLEBY J: On 2 April 2019, the appellant was convicted of two summary offences for contravening the Code of Practice for the Security, Storage and Transport of Firearms, Ammunition and Related Items. The sentencing magistrate described the conduct the subject of the convictions as follows:[1]
But at about the time of this offence you chose to put two firearms in your Ute, one behind the passenger seat and one in the well of the cabin. You chose to put them there while you went and did your work hay baling. You thought that you might go to your father’s place when you finished work to shoot targets with the Remington rifle and to try to fix the handgun. You did not actually do that. You worked a very, very long day. You returned home, you parked your car in a central location at your house in Naracoorte. You did not lock your Ute, you went to bed and when you eventually thought to yourself “gosh where are my firearms”, you went and you checked your car and they were not there…
At some stage somebody has taken them. Most likely not when you were out working on the rural property … but most likely when a car with two firearms is parked in the centre of Naracoorte.
On this day, because you were tired, overworked and perhaps not of particularly good physical health, you were lax. You did not think about your firearms when you returned home. You did not take them out of the car, assuming they were still there because you do not know that, and you did not put them away into your firearms safe. That is what a proper owner of firearms should have done, particularly when the firearms are in an urban location where people are around.
[1] Schinckel v Registrar of Firearms [2020] SACAT 73 at [9].
The magistrate appears to have found that the appellant left the firearms in the vehicle for 24 hours. He reported the theft to police very soon after he discovered that they were missing.
On 4 May 2020, a delegate of the respondent decided that the appellant was not a fit and proper person to hold a firearms licence, and cancelled the appellant’s licence. The appellant applied for review of that decision pursuant to s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) and s 47 of the Firearms Act 2015 (SA) (the Act).
On 24 September 2020, the Tribunal affirmed the decision subject to review.[2]
[2] Schinckel v Registrar of Firearms [2020] SACAT 73.
On 26 October 2020, the appellant filed a Notice of Appeal pursuant to s 71(1)(b) of the SACAT Act. Section 71(2) of that Act provides that an appeal under s 71 is only by leave of the Supreme Court.
On 13 November 2020, the respondent filed an interlocutory application seeking an order that the question of leave to appeal be heard before the hearing of the appeal, together with an order that leave be refused on the basis that it is not in the interests of justice for leave to be granted, as the subject matter of the appeal is not of sufficient substance to justify consideration. Rule 213.4(1) of the Uniform Civil Rules 2020 provides that a Judge may order that the question of leave to appeal be heard before the hearing of the appeal.
At the conclusion of argument on the interlocutory application, during which counsel for the parties made extensive submissions on the question of leave to appeal, I ordered that the question of leave to appeal be heard before the hearing of the appeal. I took the view at the conclusion of the hearing that at least some of the grounds are not reasonably arguable, making it appropriate to hear and determine the question of leave separately.
Section 71(3a) of the SACAT Act provides that an appeal under s 71 will be by way of rehearing. In Jackson v Lepp Investments Pty Ltd,[3] Parker J set out the governing principles of such an appeal (with reference to the previously applicable Supreme Court Civil Rules 2006):[4]
In deciding whether to grant permission to appeal from SACAT to this Court I consider that the ordinary principles applied when the Court decides whether or not to grant permission for a civil appeal should be followed. The overriding principle is always the interests of justice. The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration. A failure of the first-instance decision-maker to give adequate reasons will require the grant of permission.
Because SACAT is a specialist tribunal with particular expertise in determining tenancy disputes, this Court must give substantial weight to its findings…
… An appeal by way of rehearing is effectively a trial over again on the evidence used in the Court or Tribunal below, together with such additional evidence as may be received on the appeal. The Court must independently review the evidence and carefully scrutinise the findings made at first instance. Significantly, where the matter involves a question of judicial discretion, the Court is not entitled to substitute its own decision unless and error is identified in the exercise of that discretion.
[3] (2016) 125 SASR 1.
[4] Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 at [19]-[21] (Parker J).
In Pix v South Australian Housing Trust,[5] the Full Court approved of this statement of principle, observing of grounds that complained of the weight given to specified considerations:[6]
This Court cannot substitute its evaluation of the relevant considerations for that of the Tribunal unless, having regard to the Tribunal’s specialist knowledge and experience, this Court finds that the order made is manifestly unreasonable.
[5] (2016) 125 SASR 10.
[6] Pix v South Australian Housing Trust (2016) 125 SASR 10 at [6] (Kourakis CJ, Bampton and Doyle JJ agreeing).
The Tribunal has had jurisdiction under s 47 of the Act since 1 July 2017. Prior to the present regime, the now-repealed Firearms Act 1977 provided, relevantly, for review of a decision of the Registrar by the Firearms Review Committee, and a right of appeal to the District Court.[7] The Tribunal may not have inherited the same length of experience or degree of specialist knowledge with respect to matters arising under that Act as it has in the fields of residential tenancies and guardianship matters. Nevertheless, it has a specialist role under the Act and it can be taken to be discharging its obligations by reference to the necessary demands of that role, which it has had for three and a half years. I do not discount its ability to develop further specialist knowledge over time. For present purposes, I do not think that any different test arises by reason of this jurisdiction having only a short specialist history; it remains the case that this Court should not substitute a discretionary decision unless the decision of the Tribunal is manifestly unreasonable.
[7] Firearms Act 1977 (SA) (repealed) ss 26A, 26B and 26C.
On this interlocutory application, then, the question with respect to the grounds in the Notice of Appeal is whether it is reasonably arguable that the Tribunal Member committed a process error (to the extent that there is such a complaint), or whether the conclusion reached is manifestly unreasonable, having regard to the grounds.
Ground 1 complains simply that the Tribunal Member erred in finding the appellant not to be a fit and proper person to hold a firearms licence. The respondent submitted that it was not reasonably arguable that this ultimate conclusion of the Tribunal was manifestly unreasonable, in the circumstances of the appellant’s offending. The appellant argued the reasonableness of this ground by reference to matters that were also separately the subject of the Notice of Appeal, in particular Ground 3. It is convenient to consider the reasonableness of Ground 1 together with that of Ground 3, which reads:
3.The Tribunal Member ought to have found that the likelihood of any further breaches or lapses in care on the part of the appellant with respect to securing his firearms was minimal. Without limiting this ground of appeal, such a finding was called for having regard to the Tribunal Member’s findings that:
3.1    The appellant was a man of good reputation, honesty and integrity;
3.2    The consequences of the appellant’s offending had ben severe and were likely to change his behaviour;
3.3    The appellant had learned his lesson and was unlikely to allow another lapse in care.
Section 7(3)(a) and (b) of the Act provide:
(3)A person may be taken not to be a fit and proper person for a purpose under this Act if the person—
(a) has not complied with the requirements of this Act in relation to the safe handling, use, storage or transport of firearms; or
(b) has been found guilty of an offence under this Act, the repealed Act or the corresponding legislation of another State or Territory of the Commonwealth; …
The appellant meets the descriptions in both subsections (3)(a) and (b). The Tribunal Member’s finding that these matters ‘may justify a finding that he is not a fit and proper person under the Act’ is not, and cannot be, the subject of complaint.
The Tribunal member then reasoned:[8]
25.It is plainly open to me, in light of these matters, to conclude that for these reasons Mr Schinckel is not a fit and proper person to hold a firearms licence. In my view, the convictions and conduct behind them go to the heart of fitness and propriety to hold a firearms licence. It is manifestly unacceptable for firearms to be left unattended in unlocked vehicles for any length of time. Such conduct is beyond careless. The scheme of the Act imposes onerous and expensive obligations on the owners of firearms to secure their firearms from theft, but all of this is defeated by conduct of the nature that led to Mr Schinckel’s convictions. I am conscious that I am assessing whether Mr Schinckel is a fit and proper person for the purposes of the Act, and not in a more general sense. For the purposes of the Act, therefore, the conduct giving rise to the convictions must be viewed as incompatible with fitness and propriety to hold a firearms licence.
[8] Schinckel v Registrar of Firearms [2020] SACAT 73 at [25].
The Tribunal’s emphasis on fitness and propriety for the purposes of the Act is important. Section 3 sets out the principles and objects of the Act. Sub‑sections 3(1)(a) and (b) provide:
3—Principles and objects of Act
(1) The underlying principles of this Act are—
(a)to confirm firearm possession and use as 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, use, acquisition, supply and manufacture of firearms; and
(ii)by promoting the safe and responsible storage, transport and use (whether for recreational or other purposes) of firearms; …
Section 3(2) provides, in part:
(2) The objects of this Act are as follows:
…
(d)to provide strict requirements that must be satisfied in relation to firearms and transactions and activities involving firearms, including requirements to ensure the safe and secure storage and transport of firearms;
…
(f)to prevent or restrict persons and organisations from accessing, possessing or using firearms for criminal purposes;
On the question of fitness and propriety for the purposes of the Act, the Tribunal Member then brought a number of other matters to bear. He had regard to the evidence, which he accepted, of the appellant’s honesty and integrity, that the offending was out of character and that he had taken care to install a firearms safe that exceeded the required measures. He had regard to evidence that the appellant is a person who learns from difficulties and that it is likely that he would take steps to ensure that a theft of firearms would never happen again.[9] After having regard to the comments of the magistrate who had noted that most firearms offences were committed on account of people being lax, he continued:[10]
28.I have taken into account that Mr Schinckel has a good reputation, and is honest. I take into account for example that he promptly reported the loss of the firearms to the Police. However, I place less weight on Mr Schinckel’s general reputation and honesty than I do on the fact of his careless conduct in relation to the firearms, because in my assessment that is of greater significance as to whether he is a fit and proper person for the purposes of the Act.
[9] Schinckel v Registrar of Firearms [2020] SACAT 73 at [26].
[10] Schinckel v Registrar of Firearms [2020] SACAT 73 at [28].
The appellant developed the submission notionally under the topic of Ground 1, but with necessary implications for Ground 3, that this attribution of weight was in error, in that the assessment of the appellant as a person of honesty and integrity was required to be given the same weight as, and not less than, his careless conduct. Counsel submitted that this was so because of the presence of s 7(4)(a) of the Act:
(4) In deciding whether a person is a fit and proper person for a purpose under this Act—
(a) regard may be had to the reputation, honesty and integrity of the person, close associates of the person and any people with whom the person associates; …
I do not accept this submission. There is nothing in s 7 that prescribes such an attribution of weight. The submission invites me to depart from the accepted principle, in assessing the lawful exercise of a discretion, that the question of weight is a matter for the decision-maker. That principle has been confirmed in the context of the Tribunal’s discretionary decision-making powers in Pix v South Australian Housing Trust.[11] As this Court recently observed in Legal Profession Conduct Commissioner v Fowler:[12]
I observe again that it is not an error of law to give less weight to a particular consideration, in the exercise of a discretion, than the weight which would be given to that consideration by another judge or an appeal court.
[11] (2016) 125 SASR 10.
[12] [2020] SASCFC 65 at [62] (Kourakis CJ, Parker and Bleby JJ agreeing).
Grounds 1 and 3 simply invite this Court to reach a different conclusion from that reached by the Tribunal Member. Subject to the remaining grounds (and the matter was argued by reference to the grounds overlapping, such that, for example, Ground 1 was informed by the remaining grounds as well as standing alone), they are not, as standalone grounds, reasonably arguable. The Tribunal Member’s conclusion that the appellant is not a fit and proper person to hold a firearms licence is not manifestly unreasonable, regardless of whether I would have come to a different conclusion.
Similarly, Ground 3 in its essence argues that the Tribunal Member should have given different weight to relevant considerations to which he did have regard. That complaint discloses no error. Moreover, having regard to the principles and objects of the Act, the conclusion does not appear to be even a remarkable exercise of the discretion.
Ground 2 makes a complaint of a different character:
2.The Tribunal Member erred in applying a test that it was for the appellant to persuade the Tribunal that there was no risk that the carelessness resulting in the applicant’s subject offending would be repeated.
This ground complains of a process error, an error of law, in the Tribunal Member’s consideration of whether the appellant is a fit and proper person for the purposes of the Act. It arises from the following passages in the Tribunal Member’s reasons:[13]
30.I must have regard to any risk of the person failing to exercise continuous and responsible control over a firearm. Mr Schinckel has described his embarrassment at losing his firearms licence, and I note the heavy fine imposed by the Magistrate. The submission made on Mr Schinckel’s behalf to the effect that he had learned his lesson and is unlikely to allow another lapse in care has force. On the other hand, in respect of all considerations in s 7(4), regard may be had to the person’s past behaviour.
31.It is difficult in light of Mr Schinckel’s past behaviour to discount all risk that he will again fail to exercise continuous and responsible control over a firearm. In this regard, I found the submission on behalf of the Registrar to the effect that exhaustion and illness described by Mr Schinckel as contributing to his lapse are not such uncommon events that they will not be repeated. I am not persuaded that it can be said that there is no risk that the carelessness with which Mr Schinckel attended to his obligations as the holder of a firearms licence holder will be repeated.
[13] Schinckel v Registrar of Firearms [2020] SACAT 73 at [30]-[31].

These passages engage with s 7(4)(b)(iv) of the Act, which provides:
(4) In deciding whether a person is a fit and proper person for a purpose under this Act—
…
(b) regard must be had to—
…
(iv)any risk of the person failing to exercise continuous and responsible control over a firearm,
and, in that connection, regard may be had to the person's past behaviour, instability, intemperate habits, way of living or domestic circumstances.
This consideration is mandatory. The appellant’s complaint is that the Tribunal Member’s conclusion that he could not ‘discount all risk’ that the appellant will again fail to exercise continuous and responsible control over a firearm, and that he was ‘not persuaded that it can be said that there is no risk’ that the appellant would not repeat his carelessness, had the effect of imputing an incorrect test under the Act. This is that the Tribunal Member reasoned, in effect, that he was required by s 7(4)(b)(iv) to discount all risk before concluding that the appellant was a fit and proper person.
The appellant supplemented this submission by arguing that as this was the only matter that spoke against the appellant being a fit and proper person, the language used by the Tribunal Member, which did not suggest that the appellant was, for example, a high risk, supported this interpretation of the reasons. Counsel submitted that this being the only negative consideration, it effectively meant that the appellant would never, in future, be able to apply successfully for a firearms licence.
I do not consider this last submission to be relevant. Any future licence application would be assessed on its merits at the time. The prospects of such an application cannot inform the correctness of the Tribunal Member’s decision as a matter of law.
As to the construction of these passages in the Tribunal Member’s reasons, I do not think that it is reasonably arguable that the Tribunal Member imposed a test that required an assessment of ‘zero risk’ before the appellant could be considered to be a fit and proper person. As Ms Nikoloff, counsel for the respondent submitted, paragraphs 30 and 31 of the reasons, set out above, address the submission that was made on the appellant’s behalf that he was unlikely to allow another lapse in care with respect to his firearms. The Tribunal Member accepted the force of the submission, but was not prepared to conclude that this meant that there was no risk.
The question of ‘risk’ as contemplated by s 7(4)(b)(iv), relevant as it is to the question of fitness and propriety, should not be reduced to a question of ‘likelihood’ of the person failing to exercise continuous and responsible control over a firearm. The concept of risk in this context directs attention not only to the likelihood of an occurrence, but also the gravity of the occurrence should it eventuate. Having regard to the principles and objects of the Act, the regard that must be had to the risk of future failure, which may be informed by past behaviour, looks to the likelihood of a future event of potentially highly serious consequences.
Thus, to conclude that it could not be said that there was ‘no risk’ that the conduct would not be repeated is not simply a conclusion as to the existence of some small likelihood. It is also a conclusion of the possibility, small as it may be, of a recurrence with grave consequences, as demonstrated by the theft of the firearms that the appellant did not store properly.
The paragraph in the reasons subsequent to those the appellant impugns indicates, to my mind, that the Tribunal brought to bear the question of risk, informed as that concept is by the principles and objects of the Act, as one matter to be taken into account on the question of fitness and propriety, rather than as decisive on its own:[14]
32.Having considered the matters that I may take into account in accordance with section 7 of the Act, and all other circumstances known to me about the events leading to Mr Schinckel’s conviction and his personal circumstances, I have formed the view that he is not a fit and proper person for the purposes of the Act.
[14] Schinckel v Registrar of Firearms [2020] SACAT 73 at [32].
I do not think that it is reasonably arguable that the Tribunal Member has effectively treated the consideration mandated by s 7(4)(b)(iv) as requiring ‘zero risk’. The existence of risk is a matter that he took into account in reaching his conclusion. I would refuse leave to appeal on Ground 2.
Ground 4 complains:
In the alternative, the Tribunal member failed to give adequate consideration to the imposition of conditions limiting the number of firearms the appellant could possess or use, under section 20(9) of the Firearms Act 2015 (“the Act”) as an alternative to cancellation of the appellant’s firearms licence.
Section 20(9) provides:
If grounds exist for cancelling a licence (other than the grounds referred to in subsection (7)), the Registrar may instead, by written notice served personally or by registered post on the licensee, limit the firearms that may be possessed or used by the licensee under the licence.
There is an oddity in the drafting of the legislation here, in that clearly enough, there remains a statutory discretion to grant a licence with such a condition, notwithstanding the conclusion that the person in question is not a ‘fit and proper person’ for a purpose under the Act. It is not necessary that I interrogate that oddity here. The Tribunal Member expressly considered the possibility of exercising his discretion under s 20(9).[15] The Tribunal member had express regard to a submission made in support of granting a licence with such conditions, and continued:[16]
37.I have considered this proposal carefully, recognising that Mr Schinckel has demonstrated that he is generally of good reputation, honesty and integrity, and accepting as persuasive the contention that the criminal consequences for Mr Schinckel of his offending have been severe and are likely to change his behaviour. I note again the evidence of Mr Schinckel regarding the difficulties and embarrassment he has faced since losing his licence.
38.On balance however, I view the circumstances leading to Mr Schinckel’s conviction to demonstrate a degree of carelessness and oversight that are indeed incompatible with holding a firearms licence when regard is had to the objectives and principles behind the legislation. I am ultimately not persuaded that it is appropriate to reduce the administrative consequences for Mr Schinckel arising out of the conduct to mere restrictions on his licence. I accept the submission that the preferable decision is to cancel the licence. I consider that exercising the discretion in this way is most compatible with the principles and objects of the Act.
[15] Schinckel v Registrar of Firearms [2020] SACAT 73 at [36].
[16] Schinckel v Registrar of Firearms [2020] SACAT 73 at [37]-[38].
The Tribunal Member manifestly gave careful consideration to acting under s 20(9). Ground 4 is not reasonably arguable.
In the course of argument, a matter was raised that caused me to consider whether to grant permission to amend the grounds of appeal prior to determining finally the interlocutory application. The Notice of Appeal contains a Ground 5, which reads:
Such further or other grounds as may be supplied by counsel prior to the hearing of this appeal.
It is apparently the case, and it was in evidence before the Tribunal, that the appellant no longer lives in Naracoorte (where it is possible, but not certain, that the firearms were stolen from his car) but now lives on his farm. The submission was made that this decreased the likelihood of a repeat consequence and that the Tribunal Member should have addressed this.
I do not consider that a ground that reflected such a complaint would be reasonably arguable. First, the broad outline and constituent facts of the Tribunal Member’s reasoning are clear.[17] That a particular fact was not alluded to expressly does not mean that it was not taken into account.[18] More fundamentally, it cannot be said when, over the 24-hour period, the firearms were stolen from the car. To reason that the risk is necessarily lowered because of a change in circumstance rendering it improbable that this precise chain of events would repeat, is to speculate in a fashion that detracts from the concern of the Act.
[17] Resi Corporation v Munzer [2016] SASCFC 15 at [91] (Lovell J, Sulan and Stanley JJ agreeing).
[18] Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 55 FLR 180 at 184 (Toohey J).
The primary concern of the Tribunal Member was the risk associated with a recurrence of laxity on the part of the appellant. A change in circumstances of the type identified might increase or decrease the probabilities of both the likelihood and gravity of any manner of posited occurrence that could arise out of a recurrence of laxity. The failure to mention this change in circumstance is of no consequence.
The Tribunal Member took into account the matters that he was required and entitled to take into account. His conclusion that the appellant was not a fit and proper person for a purpose under the Act was open. The Notice of Appeal identifies no reasonably arguable error in the exercise of the discretion. Neither is it reasonably arguable that the decision of the Tribunal is manifestly unreasonable. Having ordered that the question of leave to appeal be heard before the hearing of the appeal, I refuse leave to appeal.