Sharp v Registrar of Firearms; Sharp Shooters Pty Ltd v Registrar of Firearms - [2018] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
SHARP v REGISTRAR OF FIREARMS; SHARP SHOOTERS PTY LTD v REGISTRAR OF FIREARMS
[2018] SADC 105
Judgment of His Honour Judge Beazley
19 October 2018
ADMINISTRATIVE LAW
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
Appeals against the respective decisions of the Registrar of Firearms made pursuant to the Firearms Act 1977, to cancel the respective appellants' firearms licences - Registrar concluded that the appellant ('Sharp') was not a fit and proper person to hold a firearms licence, and that, as Sharp was its sole director, Sharp Shooters Pty Ltd also was not fit and proper to hold its firearms licence - decisions purportedly affirmed by Firearms Review Committee - whether the appellant Sharp is a fit and proper person to hold such a licence - consideration of appellants' antecedents and the legislative scheme underpinning the holding of licences under the Act - consideration of alleged inconsistencies between decision of a Magistrate in criminal proceedings for breaches by Sharp of the provisions of the Firearms Act, 1977, and those of the Registrar - whether Registrar bound by facts as found by the Magistrate when he sentenced Sharp - whether Magistrate implicitly found that Sharp was a fit and proper person to hold a firearms licence - whether decision of Magistrate gives rise to res judicata; or issue estoppel - consideration of the role of the Firearms Review Committee in light of the decision in Registrar of Firearms v Marksman Training Systems (No 2) [2016] SASCFC 72 - effect of the commencement of the Firearms Act, 2015 - whether the Registrar erred in his understanding of Sharp's obligations to secure Sharp Shooters paintball firearms - effect of delay - discussion as to fitness over period of delay - errors in the reasons given by the Firearms Review Committee - whether cogent reasons exist to depart from the decision of the Registrar in respect of each appellant separately, where each decision affirmed by the Firearms Review Committee.
Held:
1. Cogent reasons do not exist in the appeal by Mr Sharp to depart from the decision of the Registrar to cancel his licence. Recommendations as to future applications by Mr Sharp under the Firearms Act 2015.
2. As Mr Sharp remains the sole director of Sharp Shooters, and has declined to appoint a replacement director, there is no cogent reason to depart from the decision of the Registrar to cancel its licence. A direction ought be given to Sharp Shooters pursuant to s 62(3) of the Firearms Act 2015 for the approved transfer of the Paintball firearms, or alternatively recommendation as to future application by it.
3. In each case the respective appeal is dismissed.
Firearms Act 1977 ss 5, 20, 23, 26B, 26C, 34A; Firearms Regulations 2008 Regulations 5A, 21D, 21F, 25, 31A, 38 and 51; Firearms Act, 2015 ss 24, 62-65; District Court Act 1991 ss42E(3), 42F, 42G, referred to, referred to.
Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72; Knight v Commissioner of Police [2011] WASC 93; R v Gilham (2007) NSWCCA 323; R v McGee [2008] SADC 8; R v McGee [2008] SASC 328; Rayney v Legal Profession Complaints Committee [2018] WASCA 75; Balodis v Registrar of Firearms [2012] SASC 113; R v Fusco [2017] SASCFC 47; A Solicitor v Law Society of New South Wales (2004) 216 CLR 253; Pollitt v Police (2007) SASC 302; Registrar of Firearms v Gitsham (2002) 84 SASR 72; Johnson v Registrar of Firearms (2001) 79 SASR 353; Police v Losapio [2007] SASC 159; Commissioner of Police v Davies (2000) NSWSC 107; Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Petracaro v Commissioner of Consumer Affairs (1994) 62 SASR 387; Pav v Commercial & Private Agents Board (1988) 143 LSJS 1; Zammit v Registrar of Firearms (2010) 271 LSJS 313; Fryer v Registrar of Firearms [2015] SADC 103; Kleinig v Registrar of Firearms [2015] SADC 104; Glen v Registrar of Firearms [2011] SADC 22; That's Entertainment (WA) v Commissioner of Police [2013] WASC 75; R v March [2014] SASCFC 54; Huggins v The State of WA [2018] WASCA 61; RBH v R [2011] VSCA 121; Jackson v Goldsmith (1950) 81 CLR 446; Rogers v Legal Services Commission (1995) 64 SASR 572; Deep Investments Pty Ltd v Casey [2018] 25 SASR 564; R v D VF [2018] SADC 89 at [15], considered.

SHARP v REGISTRAR OF FIREARMS; SHARP SHOOTERS PTY LTD v REGISTRAR OF FIREARMS
[2018] SADC 105
Introduction

Neville Arthur Sharp (Mr Sharp); and Sharp Shooters Pty Ltd (Sharp Shooters), have each appealed from decisions of a delegate of the Registrar of Firearms (the Registrar), to cancel their respective firearms licences, on the basis that they were no longer fit and proper to hold such licences. Each such decision was purportedly affirmed by the Firearms Review Committee (the Committee), pursuant to the Firearms Act, 1977 (the Act).
Mr Sharp is and, at all times, has been the sole director and shareholder of Sharp Shooters, which company operated a paintball business at Beachport.
As will be plain, the respective appeals have had a long and vexed history. The factors giving rise to the respective cancellations have their genesis in events which occurred in Beachport in June 2013. Notices of Cancellation were not made until September 2015. Various other matters have led to delays, including the commencement of the Firearms Act 2015, on 1 July 2017.
The respective appeals raise significant issues of principle.
These include:
·The role of the Firearms Review Committee in light of the decision of the Full Court of the Supreme Court in Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2).[1]
·The commencement of the Firearms Act 2015, (the new Act).
·The effect of the delay between the events in June 2013, and the cancellations in September 2015, on the question of fitness and propriety.
·The effect of sentencing remarks made by a Magistrate in related summary criminal proceedings.
[1] [2016] SASCFC 72.
These reasons deal with both appeals, because they are inextricably linked. The background facts are common to both appeals. Further the question of Mr Sharp’s fitness and propriety is common to both licences.
Under the Regulations, then in force,[2] a corporate licensee must nominate a fit and proper person to have control of the company’s firearms.
[2] Regulation 25 of the Firearms Regulations2008.
Sharp Shooters is and was at all times entirely under the control of Mr Sharp. It nominated him as that person. Such a nominee will be taken not to be fit and proper, if he would be refused a licence in his own capacity.
Accordingly, as Mr Sharp remains the nominee, and indeed the sole director of Sharp Shooters, it follows that if he was not fit and proper to hold his personal licence, then Sharp Shooters did not have a fit and proper person to conducts its affairs.[3]
[3] Section 71 of Firearms Act2015 reflect the common law liability of a corporation for the acts or defaults of an officer.
I make it plain that I have considered each appeal separately. There are marked differences between the conduct of Mr Sharp in respect of his personal firearms and ammunition: and the ‘omissions’ of Sharp Shooters, which concern the theft by others of paintball firearms.
The appeals
In Appeal No DCCIV-14-1451, Mr Sharp appeals, pursuant to s 26C of the Act against the decision of the Registrar on 18 September 2015 to cancel his personal firearms licence, number 134856D.
That firearms licence had been issued to him in his personal capacity, ‘for Class A, for the purposes of target shooting, hunting and paintball, and for Class B, for the purposes of recreational/amusement/sporting purposes and hunting’. [4]
[4] See Affidavit, footnote 2, at [5].
Mr Sharp was born on 22 March 1947.
He plainly was a fit and proper person at the time of the grant of his licence, and at each time the licence was renewed. Further it was due for renewal on 31 October 2015. However on 20 June 2013, police conducted a firearms safety compliance audit of his personal firearms at his home. As a consequence of breaches discovered by the police, the personal firearms were seized on that day.
His licence was suspended by the Registrar on 22 November 2013. The Registrar notified Mr Sharp that the suspension was imposed, pending an investigation as to whether his licence should be cancelled, and whether he was a fit and proper person to hold a licence. He was invited to make submissions to the Registrar on that question. At each stage of what turned out to be a long process, Mr Sharp’s solicitors did provide detailed submissions.
Mr Sharp pleaded guilty in the Magistrates Court to offences relating to the breaches, and was convicted and fined on 31 July 2014.
On 19 September 2014, Mr Sharp filed a Notice of Appeal to this Court from the decision of the Registrar to suspend his licence. That appeal ultimately was not pursued, as it was overtaken by other events.
It was not until 18 September 2015, that the Registrar cancelled Mr Sharp’s licence, having formed the opinion that he was no longer a fit and proper person to hold that licence.
On 23 November 2015, the decision of the Registrar to cancel his licence was purportedly affirmed by the Committee. The subject appeal is from that decision to cancel, as so affirmed. Some of the expressions employed by the Committee in its decision to affirm have been less than satisfactory.
In Appeal No DCCIV-16-410, Sharp Shooters similarly appeals against the decision of the Registrar to cancel its firearms licence, number 321650V, on 18 September 2015.
Its licence was linked to the approval of Sharp Shooters as a paintball operator on its rural land on Main South Eastern Road at Beachport. Although it was approved by the Minister of Police as a ‘recognised paintball operator’ on 15 October 2009, it took until 8 January 2013 for Sharp Shooters to receive a final Certificate of Approval for its paintball fields. The Act regulates the operation of paintball fields in addition to the approval of firearms licences.[5]
[5] See Regs 21D, 21F, and 51 of the Firearms Regulations2008.
Sharp Shooters, proceeded to establish a paintball field on a triangular shaped piece of land centrally located on the property. He established a car park with a number of paintball fields, and constructed a 6 metre high mesh fence. All the fields were centrally located, being no less than 200 metres from the boundary of the property, which itself had a .5 metre barbed wire cattle fence surrounding it.[6]
[6] Affidavit of Thomas Afford sworn 9 May 2016.
Two Firearms Branch Range Officers, Thomas Afford and Colin Waters, conducted inspections on 10 December 2009 and 5 December 2012.
The administration area contained a 25 metre shipping container for both the storage of equipment and a shop front. On 10 December 2009, Mr Afford had concluded that ‘due to the remoteness of the property from any local dwellings and limited public access it is not envisaged that there will be any problems with the general safety of any public within the vicinity of the area’.[7] He recommended approval of the paintball fields.
[7] Supra, [45].
In his application for Sharp Shooters to be granted a firearms licence on 6 August 2009, Mr Sharp advised the Registrar that the firearms would be ‘stored in racks and bolted to the floor.[8]
[8] Ex 'MFI 21' to Affirdavit of Mr Fisher sworn 13 May 2016.
When it commenced its paintball business in 2013, Sharp Shooters conducted it from an office in the shipping container. Within that container Sharp Shooters placed galvanised iron boxes in which the paintball firearms were to be stored. While the door to the shipping container was locked, and accessed by key, the galvanised iron boxes had only a padlock on them. They were not bolted to the floor.
There was a dispute between Mr Sharp and the Registrar as to whether Mr Sharp was aware, as at June 2013, of the obligation to affix the galvanised boxes to the wall or floor of the shipping container.
On 5 December 2012 the two Range Officers had attended for a further inspection. Mr Afford, by affidavit, deposed that he observed that the galvanised boxes which contained paintball ‘guns’ were not fixed to the wall. He deposed that he told Mr Sharp that it was ‘in his best interests to attach the metal boxes, and that they should be ‘tek’ secured to the floor or walls … and that Mr Sharp had said that he would fix it straight away’.
This discussion was not referred to in his final report before approval on 5 December 2012.
Mr Sharp, by affidavit, deposed that although there was some discussion with the inspectors on that topic, neither Mr Afford nor Mr Waters had contacted him later to confirm the need to ‘tek’ secure the boxes to the wall or floor.
For the reasons which I will later explain, I do not need to resolve that dispute of fact.
The fact remains that Sharp Shooters was bound by the Firearms Regulations 2008, in force at that time. Regulation 38(1)(b) provided that a person who was in possession of Class A firearms ‘must keep the firearms secured by – keeping them in a locked cabinet made of hard wood or steel that is securely attached to the building in which it is kept’.
Sharp Shooters did not comply with that Regulation. Mr Sharp did not either affix the metal boxes to the floor or walls, nor did he place the paintball firearms in racks to be bolted to the floor, as he had proposed in the application for a firearms licence on 6 August 2009.
Sharp Shooters firearms licence was issued to it in its capacity as a paintball business operator for ‘Class A, for the purpose of paintball’.
A paintball firearm is referred to as a ‘marker’, and is defined to mean ‘an air gun designed to fire a projectile containing dye, paint or other marking substance’.[9]
[9] Firearms Act1977, s 5.
Approximately $80,000 had been spent by Mr Sharp in establishing the business of Sharp Shooters. Its firearms licence had been granted and, save for the events in June 2013, would have been renewed on 31 August 2014.
The business had only been operating for about 5 months before the events in June 2013, when persons, unknown, stole 15 paintball firearms from the metal boxes in the shipping container.
On 20 June 2013 the police seized the remaining paintball firearms.
Its licence was suspended by the Registrar on 22 November 2013. It was not charged with any criminal offence. It did not file a Notice of Appeal against the suspension. However on 18 September 2015, the Registrar cancelled its licence, on the basis that it was no longer a fit and proper person.
On 23 November 2015, the decision of the Registrar to cancel Sharp Shooters licence was also purportedly affirmed by the Firearms Review Committee.
The catalyst for the cancellation of the respective licences
On 16 June 2013, Mr Sharp reported to the police that 15 paintball guns had ‘gone missing’ from Sharp Shooters shipping container.[10] There had been no forced entry, with the irresistible inference being that the thief was in possession of a key to the shipping container.
[10] In addition to the 15 firearms, 3 others were missing.
The theft of the paintball firearms led the police to investigate the security of the Sharp Shooters premises. This was principally directed to which persons had keys to the shipping container; whether the metal boxes were locked; whether they were securely affixed to a wall or floor of the container; and whether Mr Sharp’s employees had a Class A firearms licence.
Mr Sharp told the police on 17 June 2013, that his adult sons had access keys, but had apparently lost their keys prior to the date when the firearms were first observed to be missing. Neither son was then the holder of a firearms licence.[11] Mr Sharp maintained that neither of them had ‘been left in possession and control of the firearms’, and that accordingly they were not obliged to hold such a licence.
[11] By February 2018 one son had been granted a firearm licence. See T [7] (16/2/18).
On 19 June 2013, Mr Sharp told the police that he had changed the padlock to the container and that he now had the sole key. He told the police that he had removed Sharp Shooters remaining paintball firearms from the container, and had taken them to his home at Beachport. The business could not operate without the return or replacement of the stolen paintball firearms.
On 20 June 2013, the police attended at Sharp Shooters business premises. They observed that its practice was to place the paintball firearms in metal boxes, which, however, were not securely affixed to the floor or wall of the shipping container.
On the same day the police attended upon Mr Sharp’s home, and proceeded to conduct the abovementioned firearms safety compliance audit. They noted that Mr Sharp had a wooden gun box, which was bolted to the floor.
While the gun box was adequately secured to the floor, it contained two firearms with magazines attached. One had 6 live rounds of ammunition in its magazine, while the other had 10 live rounds in its magazine in breach of the Act, and Regulations.
The police also observed that boxes of ammunition and loose ammunition had been left, unsecured, on the top of the ‘gun box’.
They then located a 12 gauge shotgun, which was not stored in that secure ‘gun box’, but instead placed behind a bedroom door. It had not even been placed in a cupboard. Mr Sharp explained that he had placed the unsecured shotgun in that position ‘because of snakes out the back and it takes too long to undo the lock’.[12]
[12] Tender Book [43].
The police reported Mr Sharp for his breaches of his licence and the Act.
The police took possession of 26 firearms being all of the remaining paintball firearms, and all of Mr Sharp’s personal firearms and ammunition on 20 June 2013. They have remained in the possession of the police ever since.[13]
[13] Contrast the facts in Zammit v Registrar of Firearms [2010] SADC 100, where firearms returned.
This led to the immediate cessation of Sharp Shooters paintball business.
As I have already noted, some 5 months later, on 22 November 2013, the Registrar suspended both licences. Mr Sharp sought a review from the Committee of the decision to suspend.
Subsequently the police laid a complaint against Mr Sharp for his breaches of the Act, in failing to keep his firearms secured; by failing to store his ammunition in a locked container separately from firearms, and for his failure to comply with Regulation 21 of the Firearms Regulations.
No complaint was laid against Sharp Shooters.
The Committee was provided with detailed submissions from the solicitors representing Mr Sharp, and Sharp Shooters. The Committee agreed to defer its decision until the completion of the Magistrates Court proceedings.
On 31 July 2014 the appellant pleaded guilty to three offences in the Mount Gambier Magistrates Court namely:
·       Failing to keep a Class A or Class B firearm secured.
·       Failing to store ammunition separately from firearms; and
·       Contravening security provisions for licenced firearms.
A submission was made to the learned Magistrate that no conviction ought to be recorded.
It was said that a conviction may impact upon the considerations of the Registrar as to whether Mr Sharp would be relicensed in the future. Further it was said that it would impact adversely upon the paintball business. His Honour with respect, correctly referred to the seriousness of offences of failing to secure firearms.
The learned Magistrate said:[14]
[14] Affidavit of Michael John Fisher, supra, Ex 'MFI 4' p [20].
I accept that essentially there has been no factual dispute in relation to this matter, although it has taken a long time to wind its way through the Court system. There was an issue being pursued over a period of time in relation to the appropriate storage or not of the paintball guns. I will give you credit for pleading guilty today, and I will take into account in determining a penalty, the lack of any prior convictions. I will impose what I regard as a modest fine … of $500 …
I have given serious consideration to dealing with the matters without recording a conviction, but in my view this is not a case where I can take that approach and I will record convictions in relation to the three offences before the court … I have considered making an order pursuant to s 34A of the Act as the Prosecutor drew to my attention these firearms had been held by the police for some considerable period of time.
I do not propose making any order in relation to your licence or suspending your licence but I will make an order that the firearms currently seized and held by police not be returned until the Registrar of Firearms is satisfied that appropriate measures are in place to secure both firearms and the ammunition’.
The solicitor representing Mr Sharp wrote to the Registrar informing him that appropriate measures were now in place, to securely store the firearms and the ammunition. He submitted that the decision of the Registrar to initially suspend the licence was inconsistent with the order of the Magistrate. That suspension of course predated the order of the Magistrate. He submitted that in consequence of the Magistrate’s order, Mr Sharp ought to be taken to be ‘a fit and proper person to hold the licence’.
Accordingly he submitted that the Registrar should not proceed to cancel the licence, and that the earlier suspension could no longer be justified.
On 15 August 2014 the Presiding Member of the Firearms Review Committee forwarded a letter to the appellant as follows:
Your application for a review of the Delegate of the Registrar of Firearms decision to Cancel (sic) your firearms licence and your company firearms licence was considered by the Firearms Review Committee on 11^th June 2014 where it was agreed that you be able to finalise your outstanding Court matters and forward new submission in support of your request to have your firearms licence reinstated once these matters were finalised. (My emphasis)[15]
The Committee received a new submission from your solicitor, Mr Flavio Verlato,    with a copy of the Court Certificate outlining the penalty imposed upon you. This     submission was discussed at the Committee meeting of the 13^th August 2014.
You have finalised your Court matters and after due consideration the Committee have agreed to AFFIRM the decision of the Delegate of the Registrar for the following reasons.
You allowed access to stored paintball firearms by your sons and other employees all of whom were unlicensed at the time. You also had insecure loaded firearms at your home along with insecure ammunition.
[15] The Committee was considering the decision to suspend - not cancel.

The wording of those ‘reasons’ was unfortunate. It was clear that the Committee did properly consider the additional submissions of Mr Sharp’s solicitor, but affirmed the decision of the Registrar. The reference to ‘cancel’ was plainly a typographical error.
On 13 July 2015 the Registrar had invited Mr Sharp to respond in writing on his own behalf, and separately on Sharp Shooters behalf to concerns expressed by him as to Mr Sharp’s fitness and propriety. He expressly noted that he was to consider the cases of the respective licensees, Mr Sharp and Sharp Shooters, separately.
On 18 September 2015, then over two years since the firearms had been seized and well after the respective licences had been suspended, the Registrar purported to cancel both licences. Each notice of cancellation was served upon Mr Sharp, firstly in respect of his own licence,[16] and secondly, as director of Sharp Shooters.[17]
[16] Affidavit of Michael John Fisher, in Action No DCCIV-16-410, sworn, 21/3/16, Ex 'MFI7'.
[17] Affidavit of Mr Fisher p [21].
Each notice was identical, save for the reference to the licensee and the licence number. It is convenient to set out, in full, the notice to Mr Sharp.
18 September 2015
NOTICE OF CANCELLATION OF FIREARMS LICENCE NUMBER 134856D
Dear Mr Sharp
I refer to your Firearms Licence for Classes A and B for the purposes of target shooting, hunting and pain ball, which expires on 31 October 2015.
The Firearms Act, 1977 (“the Act”) provides that the Commissioner of Police is the Registrar of Firearms. Pursuant to Section 6(2) of the Act, the Commissioner has delegated to me the powers and functions of the Registrar under the Act.
I have decided to cancel your Firearms Licence in accordance with Section 20(1) of the Act. The purpose of this letter is to inform you of the matters giving rise to the cancellation of your Firearms Licence.
I intend to address your company firearms licence in another letter. I have duplicated the information from this letter which I consider relevant to the decision in relation to both licences. I am of the opinion these licences should be considered separately.
Power to Suspend, Vary or Cancel a Firearms Licence
Section 20 of the Act gives the Registrar of Firearms the power to cancel, vary or suspend a firearms licence. As a delegate of the Registrar, I am able to exercise these powers. Section 20(1) states relevantly:
(1)   If the Registrar is satisfied that the holder of a licence –
aa)(…)
(a)(…)
(b)is, for any reason, not a fit and proper person to hold the licence;
(c)(…)
the Registrar may, by notice in writing served personally or by registered post on the holder of the licence, cancel the licence.
(1a)Where the Registrar is satisfied that –
(a)it would be contrary to the public interest to permit the holder of a firearms licence to continue to possess and use firearms; or
(b)(…)
(c)(…)
Section 5 of the Act states relevantly:
(11)For the purposes of this Act a person may be taken not to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence if the person –
(a)had not complied with the requirements of this Act in relation to the safe handling, carriage or use of firearms; or
(b)has been found guilty of an offence against this Act or corresponding legislation of another State or Territory of the Commonwealth; or
(c)has been found guilty of an offence involving actual or threatened violence in this State or any other State of Territory of the Commonwealth or in any other part of the world; or
(ca)has been found guilty of an offence prescribed by regulation; or
(d)has been guilty of fraud or deception for the purpose of obtaining a licence or permit under this Act or under corresponding legislation in another State or Territory of the Commonwealth; or
(e)is the subject, or has in the past been the subject of a domestic violence restraining order under the Domestic Violence Act, 1994 or any other order of a similar nature made by a Court whether in this State of any other State or Territory of the Commonwealth.
(12)   Subsection (11) does not limit the grounds on which a person may be taken not to be a fit and proper person for the purposes of this Act.
Matters relevant to the decision to cancel the firearms licence
As previously mentioned in the delegate’s letter dated 13 July 2015, matters have come to my attention which are relevant to my consideration of whether to cancel your licence under Section 20(1) of the Act.
Paintball Ground Inspection December 2012
On 5 December 2012 Firearms Branch Range Officers Tom Afford and Colin Waters attended your paintball ground for the purpose of an inspection of the grounds to ascertain if the paintball fields complied with the South Australian Guidelines for Paintball Fields. Mr Afford and Mr Waters inspected the range grounds and also entered the shipping container which you used as an Office. At this time both officers observed your manner of storage of your paintball firearms. Both officers noted your firearms were stored in galvanised iron boxes which were neither locked nor attached to the walls of the shipping containers. Mr Afford took photos at this time and also advised you he was of the opinion your firearms were insecure. Mr Afford states you told him you would attach the boxes which stored the firearms to the container immediately.
I note that neither Mr Afford nor Mr Waters are sworn police officers and, as such, were unable to take any enforcement action in relation to their observations at the time. However, you were advised of the correct storage requirements and it was anticipated that having had this issue drawn to your attention you would comply with the requirements.
Theft of Firearms
On 16 June 2013 you reported the theft of fifteen paintball firearms to Brevet Sergeant Nigel Luders of Kingston Police Station. You advised that between 15 June and 16 June 2013 you noticed fifteen paintball firearms had gone missing from the storage shed you use. You reported there was no evidence of forced entry to the shed. B/Sgt Luders attended at the scene this day and could see no forced entry.
On 17 June 2013 Sergeant Jon Kemplay-Hill of Firearms Branch contacted you in relation to the theft of your firearms. At this time it was confirmed your firearms were secured in a shipping container on the property and discussed the access to the container was gained by a key. You told Sgt Kemplay-Hill there were three key holders who had access to the container. They were you and your sons S aged 15 and D Sharp aged 18. You advised both S and D had lost their keys over the past few months. You were of the opinion at this time the firearms were taken for their own use or enjoyment because there were 25 guns and other expensive equipment stored in the container which were not stolen.
On 19 June 2013 at 11.30 a.m. Brevet Sergeant David Evans contacted you in relation to your report. You told him the container was locked with a common padlock and you and your sons S and D had keys. You advised that D lived with you and S lived with his mother. You did not suspect either of your sons had any involvement with your missing firearms. You reported you had spoken to both sons and had not been given satisfactory answers about their keys and neither had been able to produce them. You reportedly suspected associates of your sons had copied the keys whilst they were left lying around. You were of the opinion the firearms were stolen overnight on 15 June 2013. You reported you could not understand why only fifteen firearms were taken and the other twenty five which were the same were left behind. You reported a lot of expensive equipment was not taken, including a compressor worth $6000 and a mower worth $6000. You reported that the container was found all neatly locked up. You advised you had changed the padlock to the shipping container and you were the only holder of the key.
On 19 June 2013 B/Sgt David Evans attended your home address to investigate your report. On arrival he reports you were present with two of your sons, S and D. It is reported you have another son who was not mentioned at this time and a daughter who was overseas. B/Sgt Evans reports S and D were cooperative. When asked, they both said they had lost their keys in the last two years. B/Sgt Evans asked if they had any suspicions and they refused to provide any names. It was reported at this time you noticed fifteen sets of ‘camos’ were missing which were not previously reported as missing. Both you and your sons report without specialist equipment the paintball firearms would soon be useless. At this time you told B/Sgt Evans your business was currently up for sale and the theft of the firearms would hamper your ability to sell the business. Your sons reported they were making enquiries locally.
On 20 June 2013 Brevet Sergeant Brenton Jones from Limestone Coast Crime Scene attended to inspect the container where the theft occurred. He noted there were no signs of forced entry anywhere on the container. You informed him you had moved your firearms of your home address and you had relocated an air compressor which had been in the container. B/Sgt Jones noted some helmets had also been taken from the container. The surrounding areas were searched and it was noted the property could easily be accessed, although knowledge of the location of side gates was required.
On 20 June 2013 Senior Constable Terry Obee attended your home address to make further enquiries in relation to this matter and audit the security of your personal firearms.
On 10 July 2013 Senior Constable Obee contacted you in order to obtain a DNA sample. At this time you nominated Michael Davis as a possible suspect for the theft of your firearms. You reported he had had a falling out with D and had suspicions he may be involved.
Security Audit 20 June 2013
On 20 June 2013 Senior Constable Terry Obee and Senior Constable Jonti Gray attended your home address to make enquiries in relation to the theft of your firearms and to audit the security of your personally registered firearms. Police recorded your conversation on a video camera at the time.
At the beginning of this conversation police cautioned you, advising you did not have to answer the questions put to you, but what you did say would be recorded and may be used as evidence.
You gave the following information to police:
·    Your main occupation is fisherman.
·    Most of the paintball firearms were in the unlocked metal boxes which you had moved to your home address.
·    You allowed S and D unfettered access to your paintball firearms.
·    You thought it appropriate to allow your sons to access your firearms knowing they were not the holder of a firearms licence as they were umpires and referees.
·    You believed your paintball firearms were secure.
·    You were of the opinion even though a firearm had an attached, loaded magazine it was not loaded if there was nothing in the breach.
·    Your shotgun was not secured because you had snakes and it took too long to find a key and unlock the firearm.
Following this audit you were subsequently charged and convicted of a number of firearms offences, namely:
Count One – Fail to Keep Class A or B Firearm Secured
Information from Police Incident Report (13/L22430) revealed the shipping container used as your business premises. Your two sons S and D Sharp had access to this shipping container with their keys. The firearms were stored inside this shipping container in an unlocked metal box.
Count Two – Fail to Store Ammunition Separately from Firearms
Police conducted an audit of your personal firearms which were secured at your home address. You directed police to the wardrobe in your bedroom. In this wardrobe secured to the wall was a wooden box. On top of this box there was loose ammunition and boxes of .22 and .222 calibre ammunition.
Count Three – Fail to Store Ammunition Separately from Firearms
Police requested to sight your registered firearms. You opened the locked box and removed one firearm at a time from the box. Police inspected the firearm serial number and ensured each firearm was cleared as they inspected it. On your Tikka .222 calibre rifle (serial number: 550149843) there was a magazine attached to the firearm which contained six rounds of ammunition. On your CZ .22 calibre rifle (serial number: 729906) there was a magazine attached which contained 10 rounds of ammunition. One of your firearms, your Spanish 12 gauge shotgun, was not located in this box. You walked to your bedroom doorway and pulled back the door to reveal this firearm, leaning against the wall. At this time all of your registered firearms were seized.
Criminal Antecedents

31/07/2014 Mount Gambier Fail to Keep Class A or B Firearm Secured
Fail to Store Ammunition Separately from Firearm
Fail to Store Ammunition Separately from Firearm
Contravene Security Provisions for Licensed Firearm (20/06/2013)
Convicted

Convicted

Withdrawn

Convicted

$500 Fine

Remarks of Magistrate Foley 31 July 2014

Magistrate Foley gave serious consideration to dealing with your firearms offences without recording a conviction, however found this was not a case where that approach could be taken. Magistrate Foley gave credit for your guilty plea. Magistrate Foley considered making an order pursuant to S34A of the Firearms Act. Magistrate Foley did not propose making any order in relation to your licence, but made an order that your firearms not be returned until the Registrar is satisfied appropriate measures are in place to securely store both firearms and ammunition. I note that at the time of sentencing your firearms licence had been suspended pending investigation as to whether there were grounds to cancel your licence.

The possession of firearms is a privilege and a serious responsibility. Your offences are, in my view, serious. You were informed that the security of the firearms was not adequate several months prior to the theft, yet you did nothing to comply, and when questioned by the attending police it would appear you failed to see the seriousness of the offence. Breaches of the Act are serious breaches of the law. The Act imposes a regime which requires strict compliance.

It is of great concern to me you were in charge of the security of more than forty firearms, yet appear to have complete disregard to your responsibility to keep them secured. You have allowed two of your adult children unfettered access to the firearms registered to your business, and also a shotgun registered to you personally, which you stored behind your bedroom door. As a result of your allowing your adult children unfettered access to firearms you were unable to ensure the security of your firearms.

Consideration of Submissions

On 13 July 2015 you were served with a letter suspending your licence and inviting you to provide submissions in relation to the information contained in the letter suspending your Licence.

On 6 August 2015 I received submissions from your solicitor on your behalf. In this letter your solicitor asserts the issue of whether your firearms licence should be cancelled has already been determined by Magistrate Foley on 31 July 2014 and I am bound by this decision. The solicitor also asserts I am constrained by the facts found by Magistrate Foley in the criminal matters and I am not to consider any other matters other than the facts found in those sentencing remarks.

The solicitor asserts following the conclusion of the criminal matters mentioned above, I should now be satisfied your firearms are appropriately stored and you are a fit and proper person to hold a licence and that it is not in the public interest to do anything further in relation to the licence.

However, having considered all the information available to me, I am satisfied that you are not a fit and proper person to hold a firearms licence pursuant to Section 5(11) of the Act.

What the cancellation means

You are now not entitled to possess firearms of any class. Disposal of your firearms must be arranged within 28 days of the service of this letter or forfeiture proceedings may be instigated.

Right of Review

Section 26B of the Firearms Act allows a person aggrieved by a decision of the Delegate to apply to refer the decision to the Firearms Review Committee for a review of the matter. Such a request must be made in writing to the Delegate within 28 days of the decision. Further information is contained in the attached appendix A.

Further submissions

On 7 October 2015 solicitors for both appellants wrote to the Registrar pointing out ‘factual errors’ in the Notice to Cancel. Amongst them were that Mr Sharp’s children were both adults and not under age at all; that the children had no involvement in the theft of the paintball firearms as had been inferred; that Mr Sharp had not been warned prior to participating in a record of interview with the police; that his children were not obliged to hold a firearms licence; and that Mr Sharp had not been told that he was obliged at law to ensure that the metal boxes were ‘tek’ secured to the floor.
The appellant’s sought a review by the Committee from the decisions to cancel. Very detailed submissions were also provided to the Committee.[18]
[18] Tender Book p [113]-[115].
The respective decisions of the Registrar to cancel were each purportedly affirmed by the Committee on 23 November 2015.
On that day the presiding member of the Committee wrote to the appellant’s solicitors in respect of the appellant and Sharp Shooters as follows:
23 November 2015
Mr F Verlato
Downs Lawyers
PO Box 944
MT GAMBIER SA 5290
RE: Your Client Mr Neville Arnold Sharp and Sharp Shooters Paintball Pty Ltd
Your client’s application for a review of the Delegate of the Registrar of Firearms decision to cancel your firearms and the firearms licence of Sharp Shooters Paintball Pty Ltd licence was considered by the Firearms Review Committee on 18 November 2015.
After due consideration the Committee have agreed to AFFIRM the decision of the Delegate of the Registrar of Firearms to CANCEL your clients firearms licence and Sharp Shooters Paintball Pty Ltd licence for the following reason:
·There is no evidence to encourage the Committee to stand by its previous decision that was to AFFIRM.
Section 26C of the Firearms Act allows a person aggrieved by a decision of the Registrar of Firearms to appeal the decision to the District Court. The appeal application must be made to the District Court within 28 days of this notice of the decision.
Yours faithfully
Presiding Member
There is an obvious error in the ‘reason’ provided by the Committee. The wording makes no sense at all. It plainly was intended to convey, at the least, that there was no evidence to change its previous conclusion which had been to affirm the Registrars decision to cancel.
The problem, even on that view, is that its previous decision was to affirm the suspension rather than cancellation. As I have already noted that previous record had contained a typographical error. The wording of the reason in the letter of 23 November 2015 not only repeated the error, but was expressed in nonsensical terms.
In some, if not most cases, such nonsensical reasons would lead to an inference that the Committee had not undertaken its obligation to review the Registrar’s decision properly or perhaps at all.
In my opinion this is not such a case. Despite the unfortunate wording nothing turns upon those errors in expression. I repeat that the Committee had before it extensive submissions. It could not have been in doubt about the appellant’s case. I infer that this poorly expressed ‘reason’ was intended to convey that nothing had changed, and that it affirmed the decision to cancel contained in the notice of 18 September 2015.
The powers of the Committee under s 26B(8) of the Act were confined to either affirming the decision of the Registrar, or to remitting the matter back to the Registrar for further consideration. The Committee did not have the power, under the Act, to substitute its own decision for that of the Registrar.

Pursuant to s 26C(2) of the Act the Committee was obliged to provide ‘reasons in writing for making the decision’, if a request for them was made by the appellants. I infer that no such request was made of it by the appellants.
On 29 February 2016, both Mr Sharp and Sharp Shooters commenced their respective appeals to this Court pursuant to s 26C of the Act.[19]
[19] Mr Sharp had, on 19 September 2014, commenced an appeal against the decision of the Registar to suspend his licence. That appeal had been rendered nugatory by the decisions of the Registar to cancel the respective licences.
Notice of Appeal
The respective notices of appeal contain numerous grounds which are both repetitive and extensive.
Although they notionally involve 5 grounds there are numerous sub-grounds detailed in some 9 pages.
I see no purpose in incorporating those grounds in these reasons.
The gravamen of the complaints are:
·That the Committee failed to review the decision of the Registrar in each case to cancel.
·That the decision in each case is in error based upon unsubstantiated assertions of fact.
·That the decision in each case is contrary to the orders and reasons of the Magistrates Court dated 31 July 2014.
·That the decision in each case fails to accord the appellants natural justice ‘by failing to comply with the direction that the firearms seized be held by the police (only) until the Registrar is satisfied that appropriate storage measures are in place’.
·That the Registrar’s decision in each case is in some way contrary to s 12(6) and s 20 of the Act.
·That the Registrar erred in purporting to review the decision of the learned Magistrate. Further that in some way the Registrar was bound by the decision and reasons provided by the learned Magistrate.
·That the Registrar ought to have concluded that Mr Sharp had acted on the advice given to him by the two inspectors. That the Registrar erred in failing to give due or adequate consideration to whether Mr Sharp had been misled by the terms of the Certificate of Approval dated 8 January 2013, into thinking that the set up was compliant.
Issues which arose after the filing of the Notices of Appeal
·The decision of the Full Court in Registrar of Firearms v Marksman Training Systems (No 2)[20]
[20] [2016] SASCFC 76.
The appeal in that case was one of several judgments concerning Marksman. They dealt with a number of difficult questions including whether the decision of the Registrar alone was the subject of the appeal; what evidence could be considered in a case where considerable time had passed since the cancellation; and, in the event of error, whether it is for the District Court to hear additional evidence or refer it back to the Registrar and Committee.
The Court by majority held that the proper construction of the words ‘original decision-maker’ in ss 42B to 42F of the District Court Act 1991, led to the conclusion that while the right of appeal is from decision of the Registrar, it is conditional upon the appellants having first sought a Review of the decision of the Committee which affirmed that decision. Accordingly as the Committee’s decision to affirm is the jurisdictional fact which enlivens the right of appeal, it was, ‘a composite concept’ in which due weight was to be given to both decisions.
In the subject case it is plain that the Committee’s ‘reason’ to which I have referred is unfortunately expressed and indeed sparse at best, as contrasted with those in the Marksman case. The Committee did on each stage of its role permit the appellants to provide detailed submissions to it on each occasion and the appellants did in fact provide those submissions. There is no basis to suggest that the Committee denied either appellant procedural fairness. I will give due weight to the decision of the Committee to purportedly affirm the decisions of the Registrar.
·The commencement of the Firearms Act 2015 (the new Act)
On 1 July 2017 the new Act and the Firearms Regulations 2017 commenced operation. The new Act repealed the Act.[21]
[21] See Clause 24 of Schedule 1 of the new Act.
The transitional provisions however preserve the subject appeals which were brought under s 26C of the Act.
There were some questions as to whether the provisions of the new Act are intended to apply to the resolution of the subject appeals. It was submitted that this ought to follow from the fact that the Committee was dissolved as a body as and from 1 July 2017 pursuant to Clause 43(7) of those transitional provisions. Indeed any decision of the Committee under the Act in force immediately before 1 July 2017 is to be taken to be a decision of the South Australian Civil and Administrative Tribunal (SACAT).
Clearly in the event that the respective appeals succeeded to the extent that matters were to be reconsidered, the Committee no longer exists. It may be that in doing so SACAT, in its place, would consider it in light of the new Act. This difficulty had arisen previously in respect of this legislation. Despite this difficulty, the the new Act makes it abundantly clear in s 43(5) and (6) that the new Act does not affect a right of appeal under s 26C of the Act which right was already in force immediately before 1 July 2017. Accordingly while there is no practical difference between the new Act and the Act for relevant purposes, I will determine these appeals in accordance with the provisions of the Act.
Nature of the Appeal
Section 26C of the Act provides that a person aggrieved by a decision of the Registrar that has been affirmed by the Firearms Review Committee may appeal to this Court.
Section 42E of the District Court Act 1991 (DCA) provides that upon the hearing of such appeal:
(1)    The Court must, on an appeal, examine the decision of the original decision maker on the evidence or material before the original decision maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)    The Court, on an appeal –
(a)is not bound by the rules of evidence but may inform itself as it thinks fit;
and
(b)must act accordingly to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)    The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it, and not depart from the decision except for cogent reasons.
Section 42F of the (DCA) provides that the Court may:
(a)affirm the decision appealed against;
(b)rescind the decision and substitute a decision that the Court considers appropriate;
(c)remit matters to the original decision maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
In my opinion this Court must examine the decisions made at the relevant time, namely 18 September 2015.
The question for this Court is whether each appellant, was at that time fit and proper to hold their respective licences. That fitness had to be measured in the context of the Act. See A Solicitor v Law Society of New South Wales.[22]
[22] (2004) 78 ALJR 310.
The submissions of counsel
·Counsel for the two appellants
In addition to oral submissions, Mr Verlato provided written submissions covering both appeals jointly.
He submitted that the Committee had failed to make a decision at all, and accordingly there had been a ‘failure of process’. He did very properly concede that in all probability, the Committee simply made a typographical error.
He referred to the fact that neither Mr Sharp nor Sharp Shooters have been in possession of firearms or paintball firearms since June 2013 and that the paintball business has not operated since that time. He took issue with whether Mr Sharp had been aware of the need to securely attach the iron boxes to the shipping container floor. He submitted that the development approvals of the paintball grounds occurred over a long period of time commencing in 2009. It would hardly be a surprise for Mr Sharp not to recall what security arrangements he had in mind in 2009 when he made the application for a firearms licence for Sharp Shooters. Thereafter the inspectors Mr Afford and Mr Waters attended at the grounds on at least two occasions over a long period of time and on each occasion Certificates of Approval were granted. He submitted that there was nothing in what had been raised in communications from the two inspectors which would indicate that the arrangements within the shipping container were in any way inappropriate.
He submitted that it could be said that the shipping container itself was the building itself or a safe itself. He invited the Court to accept that Mr Sharp had proceeded reasonably to commence the business in light of the tenor of the communications with them. He said that this was not the ordinary case of a gun safe in substantial premises. This was a shipping container in a country paintball park in respect of which he had been informed there was no danger to the public. He acknowledged that Mr Sharp’s sons were given keys to the shipping container but that they were properly supervised and not left alone at the paintball grounds. He submitted that in those circumstances they were not obliged to be licence holders in their own right.
Mr Verlato referred to the decision of the learned Magistrate when sentencing Mr Sharp. He submitted that he was exercising his powers in respect of the very same Act. He submitted, implicitly by some principle of res judicata; issue estoppel; or by means of the incontrovertibility of facts as found by the learned Magistrate in sentencing Mr Sharp, that the Registrar cannot exercise his power to suspend or cancel a licence on a basis inconsistent with the sentencing remarks of the learned Magistrate.
He sought to distinguish the decision of the Supreme Court of Western Australia in Knight v Commissioner of Police[23] in which it was concluded that the doctrines of res judicata and issue estoppel did not apply; and that the regulator in that case was not bound by a prior decision of a Magistrate. In that case the Court concluded that the power exercised by the regulator was administrative in nature; did not constitute a double penalty, and was not the exercise of judicial power.
[23] [2011] WASC 93.
He submitted that at the time that the Registrar made the order for cancellation in September 2015, the Registrar ought to have at least investigated whether appropriate storage measures had been put in place following the theft of the 15 firearms. The question for him was whether Mr Sharp was fit and proper at that time, not in June 2013.
He submitted that there were a number of factual errors in the decision of the Registrar to cancel the licences. They included the respective ages of Mr Sharp’s children. He submitted that it is one thing to suggest that young children not be permitted on the premises, but quite another when they actually were adults.
·Counsel for the Registrar
Ms Dellit referred to the numerous pronouncements of the Supreme Court to the effect that those who have the privilege of being permitted to be in possession of firearms and ammunition, must ensure that they are kept secure. She submitted that in respect of Mr Sharp’s personal firearms he well knew that the firearms must be separated from live ammunition yet in this case he had two firearms with magazines containing live ammunition attached to them. She submitted that the most significant breach was his failure to secure the shotgun on 20 June 2013 and to leave it behind a door in the bedroom. As to the Sharp Shooters licence, she noted that there was no dispute that Mr Sharp had provided both his sons with keys to the shipping container, and that they had been lost or misplaced for a long time. Those keys allowed both children to enter the shipping container which provided them unfettered access to the paintball firearms. She submitted that any suggestion that they did not have control over the paintball firearms in the absence of Mr Sharp could not be accepted. Accordingly each ought to have held his own firearms licence. Ms Dellit took issue with the assertion that Mr Sharp didn’t know about the requirements for securing the metal boxes in early 2013. She referred to the fact that his personal gun box had been bolted to the floor, and that he had expressed his intention to place the paintball firearms in racks and bolt them to the floor. She submitted that it could not be suggested that he was misled in any way about the need to do so, either by favourable reports, nor by whatever he was told by the inspectors. As to the submissions of Mr Verlato on the topic of res judicata, Ms Dellit, referred to Knight v Commissioner of Police, she submitted that no res judicata, issue estoppel or principle of incontrovertibility arises, as the subject decisions are simply administrative. In addition there is no question of double punishment.
She submitted that sole question was whether Mr Sharp was a fit and proper person in the circumstances at that time. She said that any of the factual errors raised by Mr Verlato were minor and did not impact at all upon the principal reasons for the cancellation of the licences. She submitted that the respective decisions of the Registrar to cancel each of the licences separately of Mr Sharp and Sharp Shooters ought to be affirmed and the respective appeals dismissed.
The Act
Before resolving these appeals it is convenient to set out the principles underlying the Act.
The entitlement to possess certain categories of firearms is strictly controlled in South Australia by the Act. It is necessary for any person who wishes to possess such a firearm to obtain and hold a licence in an approved form, and to comply strictly with the security provisions of the Act.
The objects of the Act
The purpose of the legislation was explained by Gray J in Pollitt v Police[24] as follows:
The overriding policy of the Firearms Act is to protect the public from the unsafe or criminal use of firearms. The legislative scheme was considered in Johnson v Registrar of Firearms, and in Offe v Police. The legislation provides a comprehensive scheme dealing with gun control, gun ownership, collection and dealing. Parliamentary debates indicate that the Firearms Act was designed to strictly control the possession and use of firearms in response to their increasing use by persons in serious offences and the proliferation of dangerous weapons in the community. Its purpose included the provision of community protection through the licensing and regulation of firearms. Parliamentary debates indicate that the Act was:
“designed to introduce stricter controls upon the possession and use of firearms. The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community.
In 1996 amendments were made to the Act, introducing stricter gun laws throughout Australia:
In a historic move on 10 May 1996 the Australasian Police Ministers’ Council agreed to a series of resolutions to introduce national uniform gun laws. The underlying thrust of those resolutions is that gun ownership is not a right, it is a conditional privilege.
The legislation aimed to ensure that only responsible persons with appropriate licences were able to access firearms. It provides clear direction as to licensing, storage and use of firearms. Some kinds of firearms are viewed more seriously and the legislation provides greater restriction and controls in such instances.”
[24] [2007] SASC 302 at [20]-[30].
Further, in Police v Losapio[25] David J said:
The possession of firearms is a privilege and a serious responsibility. It is entirely consistent with the legislative scheme that the holders of firearms licences be carefully scrutinised to ensure they are of appropriate character to bear this responsibility. At the same time, characters change over time and offences in the past need not permanently prevent an individual from holding a firearms licence.[26]
[25] [2007] SASC 159 at [20]-[21].
[26] See also Davies v Registrar of Firearms (2005) SASC 149; Registrar of Firearms v Gitsham (2002) 84 SASR 72 and Johnson v Registrar of Firearms (2001) SASC 51.
The relevant sections of the Act
The Act creates different classes of firearms.
Section 5(i) of the Act, relevantly provided, at the time:
In this Act, unless the contrary intention appears,
Class A firearms means –
(a)     air rifles, air guns and paint-ball firearms; and (my emphasis)
(b)     .22 rim fire rifles (not being self-loading rifles); and
(c)single or double barrel shotguns (not being self-loading or pump action shotguns), and includes receivers of firearms defined as class A firearms by a preceding paragraph;
Class B firearms means –
(a)     muzzle loading firearms (not being handguns); and
(b)     revolving chamber rifles; and
(c)     centre fire rifles (not being self-loading centre fire rifles); and
(ca)double barrel centre fire rifles that are not designed to hold additional rounds in a magazine; and
(d)     break action combination shotguns and rifles; and
(e)all other firearms (not being prescribed firearms, handguns, self-loading firearms or pump action shotguns) that are not class A firearms,
and includes receivers of firearms defined as class B firearms by a preceding paragraph;
Sections 5 (11) to (13) inclusive of the Act relevantly provided:
(11)For the purposes of this Act a person may be taken not to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence if the person -
(a)has not complied with the requirements of this Act in relation to the safe handling, carriage or use of firearms; or
(b)has been found guilty of an offence against this Act or corresponding legislation of another State or Territory of the Commonwealth; or
(ca)has been found guilty of an offence prescribed by regulation; or
…
…
(12)Subsection (11) does not limit the grounds on which a person may be taken not to be a fit and proper person for the purposes of this Act.
(13)In deciding whether a person is a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence for the purposes of this Act, regard may be had to the reputation, honesty and integrity of the person and of people with whom the person associates.
Section 6 appoints the Commission of Police to be the Registrar of Firearms and permits him, as in the subject case, to delegate that authority to another, referred to as his Delegate.
Section 20
Section 20(1) of the Act empowers the Registrar to cancel, vary or suspend any licence if, relevantly:
·The holder has contravened or failed to comply with the Act or a condition of the licence; or
·The holder is for any reason not a fit and proper person; or
·It was contrary to the public interest to permit the holder to continue to possess and use firearms.
Section 20(2) of the Act permits the Registrar by written notice to suspend a firearms licence pending an investigation as to whether the licence should be cancelled.
The Firearms Regulations 2008
The Firearms Regulations 2008 had commenced on 27 November 2008. Regulation 5A at the time detailed the prescribed offences for the purpose of s 5(11)(ca). Regulation 5A does not include the offences committed by Mr Sharp, however they do fall within s 5(11)(e) and (b) of the Act. Further s 5(12) makes it clear that any such enquiry as to fitness is not limited to the matters set out in s 5(11) thereof.
Discussion
I will shortly discuss the issues which I have raised in respect of each appellant separately.
It is however convenient to deal with some of the grounds, which are common to both.
·Procedural unfairness

As I have already explained, I do not accept that there was any ‘procedural unfairness’ or ‘denial of natural justice’ in respect of either decision to cancel.
It is plain from all of the correspondence contained in the tender books that on each separate occasion during the suspension and cancellation processes, both the Registrar and the Committee put the appellants on notice of the possibilities of those decisions being made and invited submissions in advance.
On each occasion detailed submissions by their solicitors were provided. There can be no suggestion that they were not considered.
I do not accept the submission that the Registrar failed to take account of changes made to the paintball premises between the date of the theft and the Notice of Cancellation. The decision followed submissions from the solicitors which specifically raised that topic.
·That the Committee did not make a decision to affirm
I have discussed this already at length. I readily accept that the reasons as expressed in writing by the Committee were at least in one case nonsensical.
I have however no doubt that those errors did not properly reflect the actual decision in each case which was to affirm the decision of the Registrar in accordance with s 26(B)(8) of the Act. I did not understand Mr Verlato to take issue with my assessment. In any event I find that the Committee did on each occasion make the decision to affirm the cancellation.
·Errors of fact in the Notices of Cancellation
There were, undoubtedly some errors of fact, properly identified by Mr Verlato and conceded by Ms Dellit. They included the misunderstanding about the respective ages of Mr Sharp’s two children.
There were also some issues that I do not need to resolve including whether Mr Sharp had been told by the inspectors to ‘tek’ secure the metal boxes to the floor; and whether the two sons were obliged to obtain personal firearms licences.
I do not accept that if the errors of fact had not been made, it would have in any way affected the respective decisions to cancel.
They were all of limited importance, principally involving the Sharp Shooters licence.
Of most significance in the case of Sharp Shooters licence were the failure to comply with Regulation 38 of the Firearms Regulations 2008, and the fact that the two sons had lost or misplaced their keys for a considerable period of time, thereby placing at risk the limited security provided by the door to the shipping container. This container was in a rural area and had no other security.
·Whether the sentencing remarks of the learned Magistrate give rise to res judicata or issue estoppel
The legal principles of res judicata; issue estoppel and the incontrovertibility of facts, found by a sentencing Judge in criminal proceedings, are now well established.
I accept that the learned Magistrate on 31 July 2014 was sentencing for 3 counts in accordance with the same legislative scheme of the Act as that considered by the Registrar.
Pursuant to s 34A of the Act upon a finding of guilt of an offence against the Act a sentencing Court was empowered to make orders under s 34A(1) that the firearms and ammunition be forfeited to the Crown; that the firearms licence be cancelled or suspended, and that the person be disqualified from holding or obtaining a licence for a specified period.
In addition pursuant to s 34A(2) of the Act, a Court in the course of those proceedings may make orders for suspension, cancellation and disqualification in respect of the firearms licences, if it ‘forms the view that a party to the proceedings who has possession of a firearm … or ammunition is not a fit and proper person to have possession’.
I further accept that in his reasons[27] the learned Magistrate specifically referred to the powers under s 34A of the Act. He determined not to make any order relating to his licence or to suspend his licence. He made an order that the firearms currently seized and held by police not be returned until the Registrar of firearms is satisfied that appropriate measures are in place to securely store both firearms and the ammunition. It was no direction to return them. I do not accept that it can be inferred that the learned Magistrate had concluded that Mr Sharp remained a fit and proper person under the Act.
[27] Tender Book p [21].
He convicted Mr Sharp of the offences. It was not for him to assume the disciplinary role of the Registrar.
I do not propose to set out the relevant authorities dealing with the respective principles of res judicata and issue estoppel, other than note that they are to be found in the recent judgment of Gleeson J in Deep Investments Pty Ltd v Casey[28]. His Honour referred to the decision of the High Court in Jackson v Goldsmith[29] to the effect that where an action has been brought and judgment entered in that action, no other proceedings can thereafter be maintained on the same cause of action. The rationale for the principle of res judicata is that a limit must be placed upon the right to re-open disputes.
[28] [2018] 125 ACSR 564.
[29] (1950) 81 CLR 466.
Indeed it was said that any determination of a disputed fact may be imperfect but the law aims at providing the best and safest salutation to bring about finality in litigation.[30]
[30] See Clone Pty Ltd v Players Pty Ltd (In Liquidation) [2018] HCA 12.
See also Rogers v Legal Services Commission of South Australia.[31] However the submissions by Mr Verlato do not take into account the differences between sentencing remarks in a criminal trial on the one hand, and those of the role of a regulator making an administrative decision in respect of disciplinary functions under the Act.
[31] (1995) 64 SASR 572.
These differences were considered by the Supreme Court of Western Australia in Knight v Commissioner of Police[32] and That’s Entertainment (WA) Pty Ltd v Commissioner of Police.[33] In Knight’s case Heenan J referred to the existence of the two separate statutory provisions which could result in the suspension, cancellation and disqualification of a firearms licence. In that case there was a specific application by a prosecutor in the Magistrates Court criminal proceedings for such orders however the Magistrate declined to do so. His Honour noted that the position of the disciplinary body is that of an administrative role made for the control and regulations of firearms, ammunition and the licencing of persons. His Honour said at [27]:
The mere existence of two separate sources of power enabling common and designated circumstances a firearms licence to be suspended, revoked or cancelled is enough to demonstrate the potential that difference consequences and even inconsistent consequences may result for different repositories exercise that power in respect of a particular licensee … underlying the issues raised by the parties in this appeal is the more fundamental question of whether these powers can only be exercised with each other or, if one of the powers is exercised, no different use of the other power may be exercised except if there are materially changed circumstances.
[32] [2011] WASC 93.
[33] [2013] WASC 75.
His Honour was prepared to accept that even though the Magistrate was not exercising the power of the Registrar for determining the question of fitness and propriety it was still a matter which the Magistrate must have taken into account when exercising her powers. His Honour concluded in fact that he was satisfied that the decision of the delegate to revoke the appellant’s firearms licences and to refuse applications for further licences was based upon the same facts and circumstances as were known to the learned Magistrate when she declined to make a suspension order.
His Honour held that the doctrine of issue estoppel does not apply in criminal proceedings. Ultimately His Honour concluded that the ‘proceedings’ before the delegate were no more than an administrative action and that no issue of res judicata or issue estoppel applies.
In That’s Entertainment, supra a liquor licensee had been acquitted of an offence arising from the same conduct as that before the Disciplinary Tribunal. Justice Pritchard examined the nature of the Act which was regulatory in nature and directed to the protection of the public. His Honour concluded that the Act provided both for criminal prosecutions to a criminal standard but also which gave rise to proper cause for disciplinary action. His Honour concluded that while a verdict of acquittal cannot be challenged in a subsequent trial that principle only applies to criminal proceedings between the crown and an accused and can have no direct application to disciplinary proceedings. His Honour referred to Health Care Complaints Commission v Litchfield[34] and R v Storey,[35] and concluded that disciplinary proceedings may be commenced for conduct which contravenes the Act in circumstances where a licensee had been acquitted of an offence under the Act.
[34] (1997) 41 NSWLR 630 at [635].
[35] (1978) 140 CLR 364.
Finally in respect of the principle of incontrovertibility it is now established that that principle does not apply in respect of sentencing remarks in criminal proceedings. See R v March,[36] Gilham v The Queen,[37] and Huggins v The State of Western Australia.[38]
[36] [2014] SASCFC 54.
[37] [2007] NSWCAA 323.
[38] [2018] WASCA 61.
Discussion at to Mr Sharp’s licence
As I have explained the question to be determined by the Registrar was whether Mr Sharp was on 18 September 2015 then a fit and proper person to continue to hold his personal firearms licence.
That of course required the Registrar to take into account Mr Sharp’s excellent antecedents, the fact that he had possessed his firearms licence for many years and that it had been renewed on every occasion.
It was also important for the Registrar to take into account the fact that in the event there was to be a finding that he was no longer a fit and proper person that that would impact significantly in relation to the associated business of Sharp Shooters. I have no doubt that he did take them into account. Those had been detailed by the solicitors in their submissions to him.
In the subject case the Registrar had before him serious breaches of Mr Sharp’s personal licence and the Act which were brought to the attention of the police when they attended his home for the audit. In addition the Registrar was able to take into account his assessment of the security failures which were not in dispute and which had occurred in respect of the Sharp Shooters licence and the fact that there had been a theft of those paintball firearms. The theft of the paintball firearms was not as serious as the breaches of his personal licence. He was not responsible for the theft of the paintball firearms. He was however entirely responsible for the security of his firearms at his home. It is a serious offence to leave a shotgun, unsecured.
If I had been satisfied that the Registrar had taken into account in a material way the errors which have been identified or had taken into account irrelevant matters it would have been appropriate to remit the matter back to the Registrar for further consideration.
I have explained that I do not need to resolve the issues as to what Mr Sharp may have been told about the need to affix the metal containers to the shipping container, because Mr Sharp’s breaches of the Act and Regulations with respect to his personal firearms on 20 June 2013 of themselves justified the decision to cancel.
In particular the failure to secure the shotgun, justified such a decision. Mr Sharp did not negligently leave the shotgun in that position. He did it deliberately for his own reasons. It was a serious breach. Thus even without taking into account the position with respect to Sharp Shooters, in my opinion the finding of unfitness and impropriety to continue to hold a firearms licence at that time was inevitable.
Accordingly I cannot find cogent reasons to depart from the decision of the Registrar to cancel Mr Sharp’s licence nor, despite the unfortunate wording, from the Committee’s decision to affirm the decision of the Registrar.
For those reasons I dismiss the appeal by Mr Sharp.
I do however have a great deal of sympathy for Mr Sharp. In consequence of the events of 20 June 2013 he has lost his business as a paintball operator, has incurred all of adverse financial consequences associated with the respective losses of licence, and has been denied access to the remaining paintball firearms and his person firearms.
These events occurred 5 years ago. I accept that Mr Sharp does have a genuine need to obtain a firearms licence for farming, hunting and at the very least protection from snakes. In a number of cases the Supreme Court and this Court have reflected upon whether sufficient time had elapsed between relevant convictions of an appellant and a fresh application for a Class A or Class B firearms licence.
In Police v Losapio, supra, the Court referred to those authorities which have indicated that a fresh application may be sympathetically considered by a Registrar.
In light of these reasons, although my function has ceased upon my dismissal of the appeal, I do make it plain that it will be for the Registrar to determine if and when a fresh application is approved under the new Act, in my view it ought to be favourably considered given the length of time which has elapsed.
There remains the question of Mr Sharp’s personal firearms. The provisions of the Act and indeed the new Act deal with that matter.
In particular Part VI of the new act deals with the procedures in relation to those firearms. In my opinion those firearms should be held until such time Mr Sharp makes a fresh application for a licence under the new Act or alternatively indicates his intention not to do so.
The Sharp Shooters licence
There are as I have explained marked differences between the events giving rise to the cancellation of Mr Sharp’s licence and the events giving rise to the cancellation of Sharp Shooters licence. The sole event leading to the cancellation of the latter’s licence was the theft of the paintball firearms on or about 16 June 2013. I have already discussed the matters considered by the Registrar in relation to the cancellation. While in respect of the cancellation of Mr Sharp’s licence his control of Sharp Shooters was a relevant factor.
However in relation to Sharp Shooters licence, save for one fundamental matter with which I will shortly deal, what occurred in relation to his personal firearms was of no relevance.
Mr Sharp did not facilitate the theft of the paintball firearms, nor could it be suggested that his two sons had any such involvement.[39]
[39] See Marksman, supra.
As I have explained, the paintball firearms were of an entirely different nature to those which were the subject of his personal firearms licence.
On any view he had expended $80,000 in establishing the paintball fields in a process that had taken some 4 years to get the appropriate approvals.
As I have explained I do not need to resolve the dispute of fact as to whether Mr Sharp had been told by the inspectors to ‘tek’ secure the metal boxes to the floor or wall of the container.
On one view of the deposition of Mr Afford it was explained to Mr Sharp only that it was in his interest to do so. Mr Sharp concedes that some discussion of some nature took place, but that there was no final order or requirement in that conversation that he do so. I accept that at the time he was unaware that the two inspectors were not sworn police officers and therefore could not commence enforcement proceedings. At its highest the Registrar was left with the following matters namely the failure of Mr Sharp to comply with Regulation 38 of the Firearms Regulations 2008; the fact that he had given keys to the shipping container to both of his adult sons; and that the sons had lost or misplaced those keys over a considerable period of time before the theft occurred.
I again do not need to determine whether the two adult sons were obliged to have their own firearms licences. It was certainly open to the Registrar to infer that they did have unfettered access to the shipping container and on those occasions, in the absence of Mr Sharp, they would have been effectively in control of those firearms.
I do not consider that these breaches or potential breaches are of the same level of seriousness as those involved in the breaches by Mr Sharp of his personal licence.
However I do not need to further consider the decision of the Registrar to cancel Sharp Shooters licence. This is because upon the finding that at the relevant time Mr Sharp was no longer a fit and proper person in consequence of his breaches of the Act and his personal firearms licence, then he became not a fit and proper person to be the nominee of Sharp Shooters. Accordingly at that time Sharp Shooters was not a fit and proper person to hold the licence while Mr Sharp remained as the sole director/shareholder and nominee of that company. Since that time the opportunity has been given for Sharp Shooters to replace him as nominee. Clearly in 2015 neither sons had a firearms licence. In recent times namely in 2018 it appears that one of the sons has now obtained a firearms licence. But at the relevant time in September 2015 there was no such application to replace Mr Sharp as nominee. By that time the operations of the paintball business had ceased for over two years and that may well explain why no such application was made.
In summary therefore for the reasons I have explained in respect of Mr Sharp, Sharp Shooters was not a fit and proper person to hold the firearms licence at the relevant time.
I make it clear that it is not a question of punishing Mr Sharp twice for his offending. Further the determination that Mr Sharp was not a fit and proper person at the relevant time, does not mean at all that he is not otherwise a person of good character generally.
In determining whether it was appropriate to cancel both licences on 18 September 2015 the overriding consideration was that of ensuring the public safety. The fitness and propriety of Mr Sharp in particular had to be seen in the context of the Act and the Regulations.
In Offe v Police[40] Gray J:
Warned that the community must not be complacent about the danger of firearms and relevantly the real danger may be to unsuspecting children or persons who may happen to come across them accidently so that it is vital that only responsible persons with appropriate licences are able to access such firearms.
[40] [2002] 84 SASR 72 at [76].
Accordingly I cannot find cogent reasons to depart from the decision of the Registrar to cancel Sharp Shooters licence nor from the Firearms Review Committee’s decision to affirm that decision of the Registrar.
I had considered whether I ought to make some order which may result in the appointment of a new nominee in place of Mr Sharp. The fact is that I do not know the background of that individual if indeed one is appointed. That is a matter which would need to be considered by the Registrar and indeed under the new Act.
In light of these reasons there is no alternative but to dismiss the appeal brought by Sharp Shooters. For the reasons I have explained any fresh application for a licence by Sharp Shooters ought to be favourably entertained by the Registrar.
Again proper arrangements ought to be made to preserve the paintball firearms until such decision has been made. That of course is consistent with the order that had been made by the Magistrate in the earlier proceedings.
I had excused the parties from attending at the formal delivery of these reasons and the pronouncement of my orders.
Formal orders
In respect of Mr Sharp’s appeal.
1 I dismiss the appeal.
2 I affirm the order of cancellation of the licence made by the Registrar as affirmed by the Firearms Review Committee.
3 As to the question of costs on this appeal there was no conduct in this case which would warrant an order for costs. Accordingly I make no order for costs pursuant to s 42G of the District Court Act 1991.

In respect of Sharp Shooters appeal.
1 I dismiss the appeal brought by Sharp Shooters.
2 I affirm the order of cancellation of the licence made by the Registrar as affirmed by the Firearms Review Committee.
3 As to the question of costs of this appeal again there was no conduct in this case which warrant an order for costs. Accordingly I make no order as to costs pursuant to s 42G of the District Court Act 1991.