Snape v Commissioner of Police, New South Wales Police

[2007] NSWADT 275

CITATION:	Snape v Commissioner of Police, New South Wales Police [2007] NSWADT 275 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Ronald Snape RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	063371
HEARING DATES:	9 May 2007
SUBMISSIONS CLOSED:	15 June 2007
DATE OF DECISION:	27 November 2007
BEFORE:	Grant Y - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - impose a condition on licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Firearms Regulation 2006
CASES CITED:	Associated Provincial Picture Houses v Wednesbury [1948] 1 KB 223. Commissioner of Police NSW Police v Mercer (GD) [2005] NSW ADTAP 55. Director General, Department of Education and Training v Simpson (GD) [2001] NSW ADTAP 6. Hardy v The Commissioner of Police, NSW Police [2006] NSW ADT 167. Lloyd v TCN Channel 9 Pty Ltd [1999] NSW ADTAP 7. Mangolplah Pastoral Co Pty Ltd v Great Southern Energy (No 2) [2000] ADT 4. Mercer v Commissioner of Police, NSW Police [2006] NSW ADT 277. Port of Melbourne Authority v Anshun (1981) 147 CLR 589. Robinson v Commissioner of Police, NSW Police [2006] NSW ADT 45. Tolley v Commissioner of Police, NSW Police [2006] NSW ADT 149. Turner v Commissioner of Police, NSW Police [2001] NSW ADT 169. Uzelac v Commissioner of Police, NSW Police Service [2004] NSW ADT 34. Ward v Commissioner of Police, NSW Police [2001] NSW ADT 28. Witham v Holloway (1995) 183 CLR 525.
REPRESENTATION:	B Levet, barrister W Pisani, solicitor
ORDERS:	1. That Conditions 16 and 17 on the Respondent’s Category H Firearms License be set aside; 2. That pursuant to section 88(1) and (2) of the Administrative Decisions Tribunal Act 1997 the Respondent be ordered to pay the fixed sum of $5,301.00 being legal costs properly incurred on the Applicant’s behalf.

BACKGROUND

On 8 October 2002 an application for a Category H Firearms Licence was received at the Firearms Registry.


On 16 January 2003 a Notice of Refusal and Statement of Reasons for the Category H licence application was posted.


On 28 January 2003 a request for an Internal Review of the refusal of the Category H Licence was received.


On 26 February 2003 the Internal Review was finalised and a Statement of Reasons affirming the refusal was posted.


On 26 March 2003 an appeal was lodged with the Administrative Decisions Tribunal (‘ADT’) and a directions hearing took place on 29 April 2003.


On 12 December 2003 the case was heard by the ADT and the Commissioner’s decision to refuse the Application for a Category H Firearms Licence was set aside (the Rice Judgment).


On 12 March 2004 the Firearms Registry lodged an appeal against the decision of the ADT setting aside the Commissioner’s decision to refuse the Category H Firearms Licence and this decision was reserved.


On 16 March 2004 Category ABC Firearm Licence expired.


On 18 March 2004 Category ABC and H Firearm Licence Application was received by the Firearms Registry.


On 14 May 2004 the Firearms Registry appeal was dismissed by the ADT.


On 8 December 2004 a Notice of Refusal and Statement of Reasons for the ABC and H Licence Application was posted (deemed served 14 December 2004).


On 22 March 2005 a request for an internal review of the refusal of the Category ABC and H Firearm Licence applications.


On 29 March 2005 an out of time internal review letter was sent.


On 2 May 2005 an appeal was lodged with ADT for directions hearing on 7 June 2005.


On 23 September 2005 a Decision was handed down by the ADT regarding the application for a Category ABC Firearms Licence (the Higgins Judgment). This Decision also made reference to the Category H Firearms Licence.


On 17 August 2006 the Applicant was issued with a Category H Business/Employment Commercial Fishing Firearm Licence in the name of Ronald Phillip Snape with an issue date of 12 December 2003 due to expire on 12 December 2008.


The conditions and authorities attached to this Category H Firearms Licence was the subject of the internal review which took place on 19 September 2006. The Decision of the Internal Review undertaken by the Firearms Registry was that “the Commission’s decision, to place the current Conditions and Authorities on the (Applicant’s) Category H Firearm Licence issued for the genuine reason of Business/Employment Commercial Fishing, is to stand”.


On 13 October 2006 the Applicant lodged a review of the Decision of 19 September 2006 under the Firearms Act 1996.


The matter was set down for 14 November 2006 for a directions hearing at which time orders were made that any further material was to be filed by the Respondent by 24 November 2006 with the Applicant to file any further material by 8 December 2006. The Registrar undertook to order a transcript of Matter 033079 heard by Mr Rice, Member of the ADT. Subsequently it transpired that the transcript was not ordered at the time of the hearing (3 August 2003) and that it was no longer available as tapes were only kept for 12 months.


An extension was sought by the Respondent for filing submissions until 15 December 2006 and the ADT assented to this request.


The matter was set down for hearing on 23 March 2007.


The matter was subsequently re-programmed for 9 May 2007 which is the subject of the proceedings before the Tribunal in this matter.

1 Initially, a number of conditions imposed by the Respondent on the Applicant’s Category H licence were in issue. These are outlined in the Statement of Reasons referenced at Tab 8 of the Respondent’s brief of evidence. The Applicant also sought to have the date of issue of the licence (in the event that he was successful in his application) to commence at the time of a judgment in his favour. This claim was withdrawn at the commencement of the hearing.

2 By virtue of a letter from the Applicant to the Respondent dated 2 May 2007, the claim of the Applicant is now limited to the following:

1. A claim to set aside Conditions 16 and 17 imposed by the Respondent on the Applicant’s Category H firearms licence,


2. A claim that the Respondent pay the Applicant’s legal costs, and


3. A claim that the Tribunal refer the Respondent to the Supreme Court to be dealt with for contempt.

3 The Applicant sought relief on a number of alternative bases which are set out below:

Anshun Estoppel

4 In Port of Melbourne Authority v Anshun (1981) 147 CLR 589 the High Court held that an estoppel would arise if “it appears that the matter so relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it…”.

5 The Applicant submitted that an estoppel might arise in respect of the Respondent’s claim that Conditions 16 and 17 are necessary for the purpose of public safety. The Applicant submitted that the Respondent did not seek to raise any issues of public safety when the matter initially came before Member Rice of the Administrative Decisions Tribunal (‘ADT’) (Snape v Commissioner of Police [2003] NSW ADT 262 – “the Rice Judgment”) and there was no mention of it in the judgment of the Appeal Panel. The Applicant submitted that the action of the Respondent in seeking to impose conditions on the licence has the effect of making it unusable and the Respondent should be estopped from relying for the first time on issues of alleged public safety in justifying the imposition of these conditions.

6 The Applicant submitted that Conditions 16 and 17 imposed by the Respondent on the Applicant’s licence are unreasonable within the meaning of the word “unreasonable” identified in the case of Associated Provincial Picture Houses v Wednesbury [1948] 1 KB 223 at 229-230 in which case “unreasonable” was given the meaning of a failure to do the things that must be done or in the alternative taking into account extraneous matters that are irrelevant such that “It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere”. (Short v Pool Corporation per Warrington LJ).

As to Condition 16

7 The Applicant then made submissions in respect of Condition 16 regarding the basis on which the condition can be regarded as unreasonable:

8 Condition 16 states:

“Whilst on any vessel registered to the licence holder, and in possession of a firearm, the licence holder shall ensure that the firearm is stored in the following manner:


When any such firearm is not actually being used or carried, and in any event within one (1) kilometre of any person, land mass, vessel or other watercraft, it must be stored in a locked steel safe of a type approved by the Commissioner; and


Such safe must be welded, or secured in an approved manner, to the structure of the vessel and not visible to the public; and


Any ammunition for the firearm must be stored in a locked container, of a type approved by the Commissioner, and that is kept separate from the safe containing any such firearm.”

9 Counsel for the Applicant submitted that:

“Given that the Tribunal (both by a single Member and through its Appeal Panel) had ordered the issue of a Category H licence for the purpose of carrying out a business that had been found by the Tribunal to have as one of its constituent elements proximity to the shore, it was unreasonable to impose a licence condition which precluded use of the pistol at the very place where the Applicant had been found to have a legitimate business need for it.”

10 Reference was made to the Rice Judgment wherein Member Rice said at [44]:

“I find that the typical form of the relevant business is that a fisher fishes alone in a dinghy with an outboard engine, not very far from the shore”. [emphasis added]

11 The Applicant submitted that he is lawfully able to use a Mauser rifle licensed to him in the course of his business as a shark fisherman. He stated that there was no condition imposed on his use of that rifle that precludes it being used within 1 kilometre of a land mass or boat.

12 Evidence was also given that the Applicant intended to purchase a .38 special revolver which was significantly less powerful than a .357 magnum revolver which the Applicant’s current Category H licence would allow.

13 Sergeant Christina O’Hagan, a police ballistics expert who gave evidence on behalf of the Respondent also agreed that, if the choice was between a .38 special pistol and a 7.62 millimetre Mauser rifle being used in an open boat, not far from shore, that it would be safer to use the pistol.

14 Counsel for the Applicant submitted that given that the Respondent has granted the Applicant a licence for his rifle for the purpose of his employment, and has neither stopped the Applicant using it within 1 kilometre of the land or a boat nor required that it be secured in a safe in such circumstances, and especially given the concessions of Sergeant O’Hagan (these being facts within the knowledge of the Respondent) it is unreasonable to seek to impose such a condition on the Applicant’s use of a pistol.

(iii) The safe requirement contained with Condition 16

15 The Applicant submitted that the Firearms Act 1996 has storage requirements to prevent theft and that the evidence that came before the ADT on the initial refusal to grant a Category H licence that was the subject of the Rice Judgment, was that the Applicant safely stored the weapon at his home, carried it to his place of work (his boat) which he alone used (Rice Judgment [37]). Furthermore the evidence before that Tribunal was that there was no room for anybody else in the boat (Rice Judgment [30]). The Applicant then asked the rhetorical question – how then could anyone steal the Applicant’s weapon whilst he was alone at sea in an open boat?

16 The Applicant further submitted that placement of a pistol in a safe within 1 kilometre of land or another boat whilst the Applicant is fishing alone in an open boat is unreasonable.

As to Condition 17

17 The Applicant then made submissions as to the unreasonableness of Condition 17.

18 Condition 17 stipulates that an approved safe be welded or affixed to the Applicant’s boat at a place where it could not be seen by the public.

(iv) Difficulty in affixing safe to boat

19 The Applicant gave evidence that over his career he had made “7 or 8” boats, and that he was responsible for personally undertaking any necessary repairs to them. His evidence was that it was not possible to affix a safe to a dinghy. The Respondent conceded that it was impossible to weld a steel safe to either aluminium or fibreglass. The evidence before the Tribunal was that two of the Applicant’s boats are aluminium and the third is made of fibreglass. No evidence was called by the Respondent to rebut this proposition. The Applicant submitted in summary that it was not reasonable to impose a condition of affixing a safe to a boat if this is not practicable.

(v) Safe a danger in heavy seas

20 The Applicant’s counsel drew the Tribunal’s attention to statements made by the Applicant in his affidavit to the effect that:

“Other methods of securing the safe could cause it to become dislodged and a hazard in heavy seas which would be potentially capable of sinking the boat or causing injury to persons.”

21 The Applicant’s counsel used this evidence to support his submissions that it was unreasonable to require the Applicant to install a safe in his boat if to do so might increase the risk to him of injury in his workplace.

22 The Applicant’s counsel referred to the evidence of the Applicant to the effect that the affixing of a safe would adversely affect the sea-worthiness of a dinghy on either of two bases:

“That placing a safe on the hull of a boat of the sizes used by me would have the effect of raising the centre of gravity of the boat and making it less stable particularly in heavy seas.”


(Affidavit of Applicant Ronald Phillip Snape at [5(a) (iii)]).

23 The Applicant also attested that a steel object (and the evidence is that approved safes are of steel construction) in contact with an aluminium surface (and two of the Applicant’s boats are aluminium) would cause electrolysis with the end result that a hole would be created in the aluminium hull. The Applicant submitted that the above evidence demonstrated that it was manifestly unreasonable for the Respondent to require the Applicant to do anything which would compromise the sea-worthiness of his boat.

24 The Applicant gave evidence that it was not possible to hide a safe from public view in an open dinghy.

25 While the evidence of the Applicant referred to above was unchallenged in respect of the proposal for the installation of a 54 kilogram safe, the expert witness for the Respondent, Sergeant Christine O’Hagan suggested that the Applicant could give consideration to the installation of a 9 kilogram safe which it was submitted by the Respondent would be less likely to result in the outcomes predicted by the Applicant in his submissions.

The Applicant’s Submissions in Respect of Costs

26 The Applicant submitted that pursuant to section 88(1) of the Administrative Decisions Tribunal Act 1997 the Tribunal may award costs in relation to a proceeding before it, but only if there are “special circumstances”. The Applicant asserted that the special circumstances in this case are constituted by the conduct of the Respondent over a prolonged period of time (which are set out in the Background section of this decision) which prevented the Applicant from having a usable pistol licence.

The Applicant summarised the Respondent’s conduct as follows:

1. The initial refusal of a Category H licence on 16 January 2003,


2. Maintaining a hopeless position before the Member Rice and the Appeal Panel in relation to the refusal to issue Category H licence,


3. Failing to comply with the decision of the Appeal Panel as to the issue of a Category H licence from 14 May 2004 until 17 August 2006,


4. Refusal to issue Category AB and C licenses on 8 October 2004 and the maintenance of an unsuccessful defence of that refusal before Member Higgins,


5. The issuing of a Category H licence on 17 August 2006 coupled with the imposition of Conditions 16 and 17 (which had the obviously intended affect of making the licence, for all practical purposes, unusable) together with the defence of such decision before this Tribunal,


6. By virtue of the above, causing continuing financial loss to the Applicant in the operation of his fishing business.

27 The Applicant further drew the Tribunal’s attention to the observations of Member Higgins earlier defined ‘the Higgins Judgment’ to the following effect:

“The Commissioner has completely ignored the Tribunal’s rulings” (page 5 lines 57-58) – “I mean there is such a thing as contempt of the Tribunal” (page 43 lines 14-15).

28 The Applicant’s counsel drew the Tribunal’s attention to section 88(2) of the ADT Act whereby the Tribunal may order by whom and to what extent costs are to be paid and alternatively may order that they be assessed. Counsel for the Applicant submitted that in the present case the Tribunal would order costs to be paid in the sum of $5,301.00. In support of that submission counsel tendered in evidence a copy of the cost disclosure and costs agreement entered into by the Applicant with counsel together with a copy of counsel’s memorandum of fees in such amount. It was further submitted that the Tribunal would be satisfied that these costs were properly incurred and would make an order in the fixed sum of $5,301.00 rather than submit the Applicant to the additional costs of having them assessed.

29 Counsel for the Applicant drew the Tribunal’s attention to section 131 of the ADT Act which provides that the Tribunal may report certain matters to the Supreme Court. In particular sub-section (1)(j) lists one of the matters which may be reported “If a person does anything that, if the Tribunal were a court of law having power to commit for contempt of court, would be a contempt of that court.” The Applicant’s counsel concluded by submitting that the conduct of the Respondent falls within the definition of contempt and submitted that the Tribunal should refer the Respondent’s conduct to the Supreme Court pursuant to section 131(1)(j).

30 In summary, the Applicant made submissions that in the Rice judgment findings of fact were made as to genuine need and the way the Applicant fished alone in a dinghy close to shore. The Applicant further submitted that at that point in time the Commission had not raised any argument on the basis of a concern with respect to public safety, but confined the Commission’s argument to the Applicant’s failure to demonstrate a genuine need.

31 The Appeal Panel of the ADT had confirmed this decision on 12 March 2004.

32 The Applicant further submitted that the conditions imposed by the Commissioner on the Applicant in particular Conditions 16 and 17 are unreasonable and render the licence totally worthless. The Applicant submitted that the conditions themselves are an attempt by the Commissioner’s agent to circumvent the earlier orders of the ADT.

33 The Applicant further complained that the ultimate grant of a Category H licence on 17 August 2006 with the conditions referred to above but with an issue date of 12 December 2003 such that licence was to expire on 12 December 2008.

SUBMISSIONS FOR THE RESPONDENT

As to the Conditions

34 Mr Winston Pisani, Compliance Law Division, Legal Services, New South Wales Police, on behalf of the Respondent adopted the Statement of Reasons prepared by the Firearms Registry dated 19 September 2006.

35 Under the heading D. Reasoning Process, under the sub-heading Current Conditions and Authorities Imposed on your Category H Firearms licence, the Commissioner’s Delegate stated with respect to Condition 16 on page 8 the following:

“Condition 16 is necessary to ensure public safety at all times. I remind you of the submissions you provided to the ADT dated 16 December 2002. You clearly indicate that your job is dangerous to say the least. You also pointed out that sometimes other boats are well within range should your boat rock and the gun accidentally discharge whilst it is on the deck. You also indicate in your internal review that “sporting shooters and hunters don’t have to be a kilometre apart as you require me to be” ”.

36 When considering this Condition placed on your licence, Public Safety is paramount. Clearly there is a need to ensure there was at least one (1) kilometre clearance from land mass, any person, vessel or other watercraft when you have a need to utilise the firearm in your business as a commercial fisherman. You indicate by having this condition placed on your licence that you could be hindering a fishing officer from entering your boat. Were this to be, you would be able to see a vessel approaching your boat prior to its arrival. As such once this vessel was within the specified one (1) kilometre radius you would be required to store the firearm appropriately. This would enable an officer the opportunity to board your vessel if necessary. As a result this Condition will remain unchanged.

37 In the same internal review Reasons for Decision document the Commissioner’s Delegate had the following to say in respect of Condition 17:

“Condition 17 relates directly to Section 41 of the Firearms Act 1996. This specifically deals with the safe storage requirements for Categories C, D and H Firearms. As such this cannot be the same as for long arms on a commercial fishing licence as this section does not cover the requirements for Categories A and B for which commercial fishermen may be authorised. Commercial fishermen or any other type of firearm shooters are not serving Police Officers and should not be compared in any way. After considering your comments and reading the applicable legislation this Condition will remain unchanged.”

38 In the proceedings before the Tribunal, the Respondent called an expert witness Detective Leading Senior Constable Christina O’Hagan of the Forensic Ballistics Investigation Section (NSW Police) Goulburn Street, Surry Hills. Detective O’Hagan had provided a sworn affidavit which was dated 13 December 2006 and gave oral evidence before the Tribunal. Paragraph 10 of her affidavit concluded that “Any or all of these factors were possibly taken into consideration when determining these particular licence conditions.” There was, however, no evidence that such matters had informed the decision to impose the conditions in issue in this matter.

39 The Respondent referred the Tribunal to [3] of the Detective O’Hagan’s affidavit, in particular her unchallenged evidence that she was aware of the availability of approved safes which weigh considerably less than the safe the Applicant had made inquiries about which weighed 54 kilograms. She stated that “Some New South Wales Police Specialist Sections currently utilise a safe weighing approximately 9.1 kilograms that measures approximately 4.5 centimetres high, 16 centimetres wide and 26 centimetres deep and that this safe complies with the Safe Storage of Firearms for Category H firearms.

40 The Respondent further drew the Tribunal’s attention to [7] and [9] of Detective O’Hagan’s affidavit which alluded to the risks associated with bullets ricocheting on surfaces such as water.

41 Detective O’Hagan also referred to her awareness of a John William Chillingworth having been fatally shot on 17 November 1987 as a result of a bullet which ricocheted off water and to another incident in New York about 1993 when a Nancy Uwin was killed as a result of a bullet which ricocheted off water.

42 Detective O’Hagan was cross-examined by the Applicant and acknowledged that she did not have knowledge of safes in boats but only with respect to safes in general. Detective O’Hagan further accepted that a rifle has a greater range and is going to be more accurate at a longer distance than a pistol. Furthermore she accepted that the kinetic energy of a rifle was roughly ten times that of a pistol. Detective O’Hagan further agreed that her expertise was in the area of ballistics and not safes and that she was not aware of the use of firearms by the Water Police as she had not been on a Water Police boat and accordingly was not able to say if Water Police have safes on board their boats. On further questioning Detective O’Hagan admitted that she had rarely been on boats and accordingly could not say what was generally found on boats or indeed if it was common to find safes on boats. She further admitted that the capacity of a revolver to cause damage was less than the damage that may be caused by a rifle.

43 In the written submissions provided by the Respondent to the Tribunal in this matter he reserved the right to respond further by way of further documentary or oral submissions if requested by the Tribunal. The Respondent drew the Tribunal’s attention to the observations of Deputy President Hennessy in Ward and The Commissioner of Police, NSW Police [2001] NSWADT 28 and that of Judicial Member Britton in Turner v Commissioner of Police, NSW Police [2001] NSWADT 169 which together highlighted the significance of stringent controls which the Firearms Act, 1996 has imposed in order to ensure public safety. The Respondent further submitted that the stringent controls apply even more so to Category H firearms (the category subject to this application), which now prohibit the issue of a licence for fishing. In this regard the Respondent referred to Clause 6 of the Firearms Regulation 2006 which states:

“6. Restriction on Authority conferred by Category H Licence


(cf 1997 Cl 5A)


(1) The genuine reason of business or employment does not in relation to a Category H licence or an application for such a licence, include business or employment that constitutes any other genuine reason.


Note. Section 16 of the Act provides that a Category H licence must not be issued unless the genuine reason established by the Applicant is sport/target shooting, business or employment or firearms collection. The genuine reasons specified in section 12 of the Act are each mutually exclusive.


(2) Accordingly, a Category H licence issued to a person who has established “business or employment” as the genuine reason for


being issued with the licence does not authorise the possession or use of the registered pistol for a person that has a genuine reason other than business or employment.


Note. For example, the licensee is not authorised to use the pistol for the purposes of:


(a) hunting (including the control or suppression of vermin or pest animals) or fishing, or


(b) farming or grazing activities (including the destruction of diseased or injured animals).”

44 The Respondent stated that the Commissioner of Police may impose conditions upon a licence pursuant to section 19 of the Firearms Act 1996 which provides:

“19. Conditions of Licence


(cf 1989 Act ss 21, 28, APMC 4(b) 9(c))


A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.


Without limiting sub-section (1), each licence is subject to the following conditions:


(a) The licensee must comply with the relevant safekeeping and storage requirements under this Act,


(b)The licensee must not permit any other person to possess or use any firearm in the licensee’s possession if that other person is not authorised to possess or use the firearm,


(c) The licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or, in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the Regulations) of the licensee’s facilities in respect of the storage and safekeeping of the firearms in the licensee’s possession,


(d) The licensee must not possess, at any one time, any amount of ammunition that exceeds the amount (if any) prescribed by the regulations, unless authorised in writing by the Commissioner,


(e) The licence cannot be transferred to another person.



(3) A licence is subject to such other conditions as may be prescribed by the Regulations.”

45 The Respondent also submitted that the power of the Commissioner of Police to impose conditions upon a licence already in existence was affirmed in Tolley v Commissioner of Police, NSW Police [2006] NSW 149 in which case a condition “Firearms are not to be stored or possessed at your residential address” was placed on a Category ABH firearms licence as the Applicant’s circumstances had changed after the licence had been issued. Judicial Member Fitzgerald stated at [25-26]:

“25. Section 19(1) of the Firearms Act 1996 provides that a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.


26. The discretion given to the Commissioner to impose conditions is very broad and there is no indication within the Firearms Act as to how it is to be exercised. See Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]: “There is no guidance in the legislation in relation to how these discretions should be exercised. In my view the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act.”

46 The Respondent further made reference to Uzelac v Commissioner of Police, NSW Police Service [2004] NSWADT 34 where Judicial Member Montgomery made similar observations with respect to the power of the Commissioner pursuant to section 19 to impose conditions on the licence as the Commissioner thinks fit.

47 Mr Pisani on behalf of the Respondent then sought to draw a distinction between the long arm rifle used by the Applicant and the pistol for which he was seeking a Category H licence. The Respondent contended that the pistol was able to be secured more easily and that its use within 1 kilometre of any person, land mass, vessel or other watercraft may present a risk to public safety. The Respondent submitted that given the tight controls on the possession and use of Category H firearms, it “could be suggested that they are a sought after item by members of criminal element who would be able to more easily identify such a firearm within the prescribed distance of 1 kilometre.”

48 The Respondent further submitted that the fact that the Applicant does not have similar conditions placed upon his long arm firearms licence does not mean the Tribunal should not or cannot make them in the current application and he again cited Tolley and The Commissioner of Police in support of that submission, in particular at page 24:

“The Tribunal is to make its own decision and there is no presumption that the decision of the Commissioner is correct (section 63(1) of the Administrative Decisions Tribunal Act 1997; McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.) The Tribunal undertakes a review of the merits of the original decision and is obliged to reconsider all of the material considered, together with any other relevant material so as to confirm the original decision, vary it or set it aside and substitute another ( Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).”

49 The Respondent further submitted that while Detective O’Hagan had conceded that a steel safe cannot be welded to aluminium or fibreglass this was not to say that a steel safe could not be fixed. The Respondent referred to the Applicant’s concession in cross-examination that steel objects such as motors and appliances are often fixed to aluminium and fibreglass hulled vessels. The Respondent noted that while the evidence of the Applicant was that it was not possible to affix the safe he had obtained, the safe obtained weighed 54 kilograms. The Applicant had nevertheless conceded that he had made no further inquiries in relation to a more suitable safe weighing considerably less, saying that he had simply asked for a safe and received this one (the 54 kilogram safe). The Respondent therefore observed that the Applicant’s evidence in relation to the danger to his vessel in heavy seas and the adverse affect on the sea-worthiness of his boats was in the context of fixing the 54 kilogram safe to his vessel.

50 The Respondent referred to the unchallenged evidence of Detective O’Hagan that a 9.1 kilogram safe measuring 14.5 centimetres high, 16 centimetres wide and 26 centimetres deep, that complies with the safe storage of firearms for Category H firearms, was available and so the Applicant’s evidence in relation to the dangers associated with the use of a safe weighing 54 kilograms was not helpful. The Respondent further observed that a safe of smaller dimensions as described above may be more readily concealed on board the vessel.

51 The Respondent respectfully submitted that the Respondent was not obliged to call evidence in rebuttal of any of the issues raised by the Applicant. He cited in support of that submission the decision in Hardy v Commissioner of Police, NSW Police [2006] NSWADT 167, where Judicial Member Higgins stated at [12];

“It is well established that proceedings such as these are non-adversarial in nature and that there is no onus of proof in the sense that it applies to other legal proceedings.”


At [15]-[16];

“15. Accordingly, subject to a contrary statutory provision in making his application for review of the Commission’s decision (“the reviewable decision”) the Applicant does not take responsibility for having to prove a case, nor does he cause the Commissioner to have to prove a case: see Hart v Commissioner of Police, New South Wales Police Service [203] NSW ADT 114 at [53].


16. In my opinion the abovementioned principles equally apply to the concept of a legal onus and an evidential onus that is, subject to an express statutory provision to the contrary in a merits review proceeding, there is no evidential onus as this concept is understood in the adversarial context, on either party to the proceedings. If the Applicant’s contention were accepted … to my mind this is no different to contending that the Commissioner bears an onus of proof, which he clearly does not.”

52 The Respondent submitted that Anshun Estoppel is an extended res judicata or issue estoppel and has no application in this case. The Respondent sought to draw a distinction between the Rice Judgment, which related to the granting or refusal of the Category H licence, and the current application, which relates to the conditions imposed upon that licence. The Respondent drew the Tribunal’s attention to the decision of Mercer v Commissioner of Police, NSW Police [2006] NSWADT 227 in which the issue of estoppel was canvassed and where Judicial Member Leal stated at [12]-[15].

“The Tribunal accepts the difficulty facing Mr Sundstrom (the Applicant’s representative) in mounting an argument in relation to material to which he and Mr Mercer had not been given access. This difficulty is highlighted in Mr Sundstrom’s submissions where he states that:

The submission regarding the proposed estoppel is predicated on the anticipation that the ‘confidential evidence’, whatever its nature or source, has been within the knowledge or awareness of the Commissioner of Police for a period of time at least prior to the first day of the present redetermination hearing, being 17 March 2006. The submission is also predicated on the supposition that, if [the above] is satisfied, then the ‘confidential evidence’ could have, and ought reasonably have been placed before the Tribunal. The variety of Estoppel for which the applicant agitates is that known as Anshun Estoppel – the principles which arise in the High Court decision in Port Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 … in précis, the Anshun principle involves an estoppel in relation to aspects of the early proceedings which could and should have been raised therein but were not. …

53 The Respondent submitted that any such application for costs should be looked at in the context of the objects and principles of the Firearms Act, 1996. The Respondent bears the responsibility of regulating the issuance of firearms licenses with an emphasis on public safety. The Respondent drew the Tribunal’s attention to the pre-condition of ‘special circumstances’ in section 88(1) of the Administrative Decisions Tribunal Act which provides for an order of costs relevant to proceedings before the Tribunal as follows:

“Subject to the rules of the Tribunal and any other act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.”

54 The Respondent further referred to the decision of Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (No 2) [2000] ADT 4 at [5] where it was held that the parties to the Tribunal proceedings should ordinarily bear their own costs, rather than adopting the custom within the court system of granting an award for costs to the successful party.

55 Reference was also made to the decision of Lloyd v TCN Channel 9 Pty Ltd [1999] NSWADTAP at [9] where it was held that the power to award costs is discretionary and that this discretion is not lightly enlivened. It was the Respondent’s submission that this case essentially determined that the mere fact that a party is successful in proceedings, or that a party was burdened with heavy costs as a consequence of proceedings, did not constitute “special circumstances” within the meaning of section 88(1) of the ADT Act. Furthermore, it was submitted that in determining whether a costs award would be appropriate it was necessary to examine the circumstances of each matter, in order to ascertain whether a costs order would be appropriate.

56 The Respondent also referred to the decision of the Director General, Department of Education and Training v Simpson (GD) [2001] NSWADTAP 6 at 11 where it was determined that costs should not be ordered:

“Unless there is substantial material placed before us which might plainly demonstrate for example that the decision put in issue by the application was wholly unmeritorious – and that was known to be so or should have reasonably have been understood to be so by the Department prior to the making of the application. Or that there was some other defect of a similar magnitude.”

57 The Respondent cited the observations of Judicial Member Higgins in the matter of Robinson v Commissioner of Police, NSW Police [2006] NSWADT 45 where it was found that the Tribunal’s power to award costs pursuant to section 88 of the ADT Act was discretionary:

“It is a discretionary power but it can only be exercised where the Tribunal is satisfied that there are “special circumstances” warranting the award of costs. This means that in order to obtain a costs order an applicant has two hurdles to overcome. The first is being able to identify “special circumstances” and the second being able to show that the special circumstances warranted an award of costs: see Giziah Pty Ltd v AXA Trustees Limited (No 2) [2001] NSWADT 164 at [29].”

58 Mr Pisani for the Respondent submitted that special circumstances have been defined as “circumstances that are out of the ordinary, but without having to be extraordinary or exceptional”. He cited Brooks Meaher v Cheug [2001] ADT 18 at [11] in support of the principle that it is well established that mere success in a review application does not constitute special circumstances. He further stated that it was equally well-established that the mere fact that the Tribunal did not agree that the Administrator’s decision was the correct and preferred decision was not sufficient to constitute special circumstances for the purpose of section 88(1) of the ADT Act. See Hutchins Electrical v Director General, Department of Fair Trading (No 2) [2002] NSW ADT 255 at [18].

59 The Respondent also made reference to Practice Note 12 re-issued on 11 May 2005 which set out examples of “special circumstances” which may warrant an order for costs under section 81 of the ADT Act as follows:

“Whether a party has conducted the proceedings in the way that disadvantaged another party to proceedings by conduct such as:

(i) Failure to comply with an order or direction of the Tribunal without reasonable excuse,


(ii) Failure to comply with this Act, the Regulations, the Rules or enabling an enactment,


(iii) Asking for an adjournment as a result of (i) or (ii),


(iv) Causing an adjournment,


(v) Attempting to deceive another party or the Tribunal,


(vi)Vexatiously conduct the proceedings,


(vii) Whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, and


(viii) The respective strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law.”

60 The Respondent concluded its submissions concerning costs by suggesting that the authorities cited demonstrated that its the standard to be met in order to justify an application the payment of costs was not easily achieved and submitted that there was nothing in the circumstances of the subject proceedings to satisfy the test detailed by the Judicial Member Higgins in Robertson v Commissioner of Police, New South Wales Police as cited above. The Respondent submitted that there was nothing in the application before the Tribunal (the conditions sought to be imposed upon the Applicant’s Category H firearms licence) to warrant such an order being made.

61 The Respondent submitted that it was at no time in contempt of the Administrative Decisions Tribunal. Further, Judicial Member Higgins at no time directly stated that the Respondent was in contempt of the Tribunal. The Respondent submitted that at no time has the Tribunal otherwise constituted, made a finding that the Commissioner of Police was in contempt of the Tribunal in respect of the current application. The Respondent drew the Tribunal’s attention to the transcript in the Higgins Judgement Snape v Commissioner of Police ADT 053153 which recorded a conversation between Judicial Member Higgins and the Respondent’s representative Mr Pisani to the following effect:

62 Judicial Member Higgins at page 6 point 5:

“I mean I’m not saying it’s deliberate and I can understand that when there’s a fresh application it’s being looked at. I’m not suggesting there is any deliberate –


Pisani at page 6 point 10:


“No”


Snape at page 6 point 12:


“I am.”



Judicial Member Higgins at page 6 point 15:

“Well you might but I’ve not heard any evidence of that but as a – alright let me keep going through the chronology, okay because I’m concerned about what in fact you are seeking review of. Okay, so the Commissioner sought further information from the Applicant on 16 July 2004. What was the nature of that information?”

63 In conclusion the Respondent submitted that the Tribunal should not accede to the Applicant’s application to refer the Respondent to the Supreme Court to be dealt with for contempt. The Respondent cited the complicated and protracted history of the matter which he submitted was supported by the transcript of the ADT hearing in this matter before Judicial Member Higgins.

64 In summary the Respondent asked the Tribunal to:

1. Affirm the decision of the Commissioner of Police to impose conditions on the Applicant’s Category H firearms licence.


2. Be satisfied that no “special circumstances” as defined by section 88 of the Administrative Decisions Tribunal Act 1997 exist in the matter at hand.


3. Dismiss the Applicant’s application for costs.


4. Affirm the decision of the Commissioner of Police.

65 The Tribunal’s task is to determine whether the Commissioner decision is the correct and preferred decision having regard to the material before it including relevant facts and the applicable law (Section 63 Administrative Decisions Tribunal Act 1997).

66 I have considered all the material that has been provided by the parties. The ultimate issue is whether, having regard to all relevant circumstances, the Commissioner was correct in exercising his discretion to impose Conditions 16 and 17 on the Applicant’s Category H firearms licence and permit.

67 In 1996, the Government enacted “tough new gun laws”. One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms. Second Reading Speech, Hansard, 25 June 1996, Legislative Council, page 3557. The Firearms Act, (‘the Act’) sets up a scheme to licence people to possess and use firearms. There are several provisions, which allow the Commission to place conditions as the Commissioner thinks fit to impose.

Applicable Law

68 Section 19(1) of the Act provides a firearm licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.

69 The Act and the Firearms Regulation 2006 (‘the Regulations’) were specifically introduced to improve public safety. The primary focus of the Firearms Registry is to ensure that the privileges associated with the possession and use of firearms is not granted where there is any likelihood of a risk to public safety.

70 Clause 6(2) (a) of the Regulations provides the restriction on authority conferred by a Category H licence. This clause was inserted into the Firearms (General) Regulation 1997 as Clause 5A (2) (a) on 3 December 2004. This clause has most recently been included in the Regulations 2006 as Clause 6(2) (a) as set out earlier.

71 Section 41 of the Act stipulates the requirements with which the holder of a Category CD & H licence must comply stating in section 41:

“(1) Whenever any such firearm is not actually being used or carried, it must be stored in a locked steel safe of a type approved by the Commissioner and that cannot be easily penetrated,


Such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept,


Any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and this is kept separate from the safe containing any such firearm,


Such other requirements to render secure and safe storage as may be described with the Regulations.


Maximum Penalty: 50 penalty units or imprisonment for 2 years, or both.


(2) A licensee does not have to comply with the requirements of this Section if the licensee satisfies the Commissioner that the licensee has provided alternative arrangements for the storage of firearms in the licensee’s possession that are of a standard not less than the requirements set out in this Section.”

72 Section 57 of the Act states any person (other than the person who is engaged in the business of transporting goods) who conveys a prohibited firearm or a pistol must comply with the safety requirements prescribed by the Regulations. Clause 126 of the Regulations further provides the prescribed safety requirements for non-commercial transportation of prohibited firearms and pistols. (This does not apply to the present fishing licence as it is a commercial fishing licence).

73 Following the internal review undertaken by the Firearms Registry on 19 September 2006 a number of the conditions previously imposed by the Commissioner on the Applicant’s Category H Firearms licence were withdrawn or amended but Conditions 16 and 17 remain operative and indeed are the subject of the Applicant’s appeal in this matter.

74 The Applicant has sought relief on a number of alternative bases including:

Estoppel

75 In pressing its submissions on Anshun Estoppel the Applicant referred to the Respondent’s failure to raise any issues of public safety when the matter initially came before Member Rice of the ADT in the early decision of Snape v Commissioner of Police [2003] NSWADT 262 – the Rice judgment. The Respondent in turn sought to draw a distinction between that matter which led to the refusal of the Category H licence and the current application which related to the imposition of conditions on the said licence.

76 It is my view that whether the Tribunal is considering the imposition of Conditions on a Category H licence, or indeed the issue or refusal of a Category H licence its primary concern is with respect to the important public safety objective of the (Firearms Act) and so the question is whether these issues could have or ought reasonably have been placed before the Tribunal in which Judicial Member Rice presided (the Rice judgment). At [37] of the Rice judgment, Judicial Member Rice stated as follows:

“ In this matter the Commission has not relied on concerns as to public safety in refusing Mr Snape his Category H licence. The Commissioner’s view is simply that Mr Snape is unable to satisfy the requirement of “genuine need”. In his submissions counsel for the Commissioner characterised some of Mr Snape’s evidence as giving rise to a concern for public safety: Mr Snape’s admitted previous use of a shortened firearms, his carriage of firearm in his car from its safe storage at his home to his place of work, and his storage of a cocked firearm on his boat, which he alone used. These matters do not satisfy me of the existence of a risk to public safety in the circumstances.” (emphasis added)

77 Paragraph 38 “the heart of the Commissioner’s position in relation to Mr Snape’s application is in the Statement of Reasons from the internal review, where the Commission stated:

“Given the fact that you have other options at your disposal, I am of the opinion that your reasons are not extenuating and are not “necessary” in the conduct of your business.”

78 It is worthy to note the further observations of Member Rice at [53] of the Rice judgment when he said:

“I find that the relevant core features of the type of business that is the subject of this application is: the landing of sharks, the need to do so safely, and the consequent practice of shooting the shark before landing it. Implicit in this is the further core requirement of shooting done reliably and safely .” (emphasis added)

79 I find that the Rice judgment did give consideration to the issue of the existence of a risk to public safety in the grant of a Category H licence to Mr Snape. Accordingly rather than finding Anshun Estoppel I am of the view that the principle of an ‘issue estoppel’ is operative here in that the issue of safety was previously raised in the ‘Rice judgement’ and Member Rice was not satisfied that there was a risk to public safety. The fact that the issue was raised and a finding made in the earlier proceedings prevents the Respondent in fairness from ventilating the issue afresh in the current proceedings in the absence of changed circumstances.

80 If I be wrong in finding the matter was previously raised and ruled on in the Rice Judgment so as to create an issue estoppel, then I believe that Anshun Estoppel would arise as if the Respondent held concerns about the safety of the Applicant’s fishing modus operandi it was during the earlier proceedings that the Respondent should have raised all its concerns relating to public safety. In other words it would have been unreasonable for the Respondent not to plead the issue of safety and thereby enable all the relevant issues to be determined in the one proceeding.

81 I therefore find that the Respondent is estopped from seeking to rely on the issue of safety in defending its Conditions before this Tribunal.

82 The Applicant submitted that the Commissioner had exercised his discretion unreasonably in the following manner:

As to Condition 16

83 This condition stipulates that the pistol be placed into a safe when within 1 kilometre of land or another vessel. It was submitted that such condition was unreasonable for each of the following discrete reasons:-

(i) Condition excludes use of pistol at the location it is needed.


(ii) Inconsistency with conditions imposed on rifles licensed to Mr Snape and


(iii) The safe requirement contained within Condition 16.

84 As to (i), I accept that the Respondent has at all material times been well aware that the Applicant conducts his shark fishing (and that is where he has need of a firearm) close to the shore. I note the comments of Member Rice at [51] of the Rice judgment when he observed:

“I find that, for the purposes of section 12 the type of business that is the subject of this application is that of a sole fisherman who fishes alone in a dinghy with outboard engines, not far from shore, for shark among other fish.”

85 I accept the Applicant’s submission that the Tribunal (both by a single Member and by its Appeal Panel) had ordered the issue of a Category H licence for the purpose of carrying out a business that had been found by the Tribunal to have as one of its constituent elements proximity to the shore. In those circumstances I believe it was unreasonable to impose a licence condition which precluded use of the pistol at the very place where the Applicant had been found to have a legitimate business need for it.

86 With respect to (ii) I also accept the Applicant’s submission that there is an inconsistency with the conditions imposed on the Mauser rifle licence to the Applicant which he is lawfully able to use in the course of his business as a shark fisherman given the undisputed evidence that a revolver had a much shorter range than a 7.62 millimetre round fired from a Mauser rifle and a smaller average kinetic energy (a revolver having a kinetic energy of 290ft/lbs and the 7.62 millimetre round have an average kinetic energy of 2800ft/lbs) and that in an open boat, not far from shore, that it would be safer to use a .38 special pistol than a 7.62 millimetre Mauser rifle.

87 While I accept the Applicant’s submission that the Respondent has acted inconsistently in granting the Applicant a licence for his rifle for the purpose of his employment, and has neither stopped the Applicant using it within 1 kilometre of land or a boat nor required that it be secured and safe in such circumstances. I also accept the Respondent’s submissions that the Tribunal’s decision with respect to the appropriateness of the use of the revolver in the same circumstances as the use of a Mauser rifle must be made on its own merits and not by way of reference to the conditions previously imposed on the issue of a Mauser rifle licence to the Applicant: see (Tolley v Commissioner of Police, NSW Police [2006] NSW ADT 149).

88 However, given that the Respondent has only sought to raise concerns with respect to public safety to justify the imposition of Conditions 16 and 17 and that I have ruled that such concerns cannot be pressed at this stage it follows that no legitimate reasons have been advanced to support this/these condition(s) and so I find that their imposition unreasonable.

89 For the same reasons I do not accept the Respondent’s submissions that the distinction between the long arm rifle used by the Applicant, as contrasted with the pistol for which he was seeking a Category H licence, was relevant in that the ‘pistol was able to be secured more easily and that its use within one kilometre of any person, land mass, vessel or other watercraft may present a risk to public safety’. Nor do I accept the Respondent’s submissions that in the light of tight controls on possession and use of Category H firearms it “could be suggested that they are a sought after item by members of criminal element who will be able to more easily identify such a firearm within the prescribed distance of 1 kilometre.” Further I remain unconvinced with respect to the Respondent’s submissions that because Category H firearms are more readily concealable by members of the criminal element and consequently normal access may adversely affect risk to public safety that these concerns justified the imposition of the Conditions 16 and 17 on the Applicant.

90 As to (iii) given the findings made in the Rice judgment that the Applicant safely stored the weapon at his home, carried it to his place of work (his boat) which he alone used (Rice judgment [37]) and that there was no room for anybody else in the boat (Rice judgment [30]) I join with Judicial Member Rice in asking how could anyone steal the Applicant’s weapon whilst he was alone at sea in an open boat? The Act requires storage requirements to prevent theft with the consequent dangers to the public.

91 Having regard to the above I find that the Respondent’s imposition of a condition requiring storage is unreasonable and is not necessary in the circumstances to prevent theft.

92 This condition requires an approved safe be welded or fixed to the Applicant’s boat at a place where it could be seen by the public.

93 The Applicant raised four issues with respect to the inappropriateness of the imposition of this condition, namely:

(i) Difficult in affixing safe to boat,


(ii) Safe a danger in heavy seas,


(iii) Safe adversely affects seaworthiness of boat,


(iv) Safe to be concealed from public.

94 I accept the Applicant’s evidence that he has over his career made “seven or eight boats” and that he was responsible for the person undertaking any necessary repairs to them. I further accept his evidence that it was not possible or, in any event, not sensible to affix a 54 kilogram safe to a dinghy as it was plausible and no evidence was called by the Respondent to rebut this proposition. The expert evidence called by the Respondent suggested that the Applicant could have given consideration to the installation of a 9 kilogram safe which it was submitted by the Respondent would be less likely to result in the adverse outcomes predicted by the Applicant in his evidence.

95 I accept the Applicant’s evidence that in the context of the 54 kilogram safe he had endeavoured to attach to his dinghy that apart from welding “other methods of securing the safe could cause it to become dislodged and a hazard in heavy seas which would potentially capable of sinking a boat or causing injury to persons” Affidavit of Applicant Ronald Phillip Snape at [5] (a)(iii).. In accepting the Applicant’s evidence in this regard I am mindful of his sworn evidence that he had been a licensed boat handler for thirty years as contrasted with the sworn evidence of Sergeant O’Hagan who acknowledged that she did not have knowledge of safes in boats but only in respect to safes in general and that her expertise was in the area of ballistics and not safes. In summary I did not find the evidence provided by the Respondent was sufficient to detract from the force of the Applicant’s argument that there was a potential danger in heavy seas if such a safe were to be fixed to the dinghy. Whilst a concession was made by the Respondent that a steel safe cannot be welded to aluminium or fibreglass, the Respondent submitted that it is not to say that a steel safe cannot be affixed. The Respondent drew attention to the concession made by the Applicant in cross-examination that steel objects such as motors and appliances are often affixed to aluminium and fibreglass hulled vessels.

96 I accept the Applicant’s evidence with respect to the adverse consequences to the seaworthiness of a dinghy of affixing a safe. The Applicant’s evidence that the placement of a safe on the hull of the boat would affect the centre of gravity of the boat making it less stable particularly in high seas and the affixing of a steel safe in contact with an aluminium surface (and two of his boats are aluminium) would cause electrolysis with the result that a hole would be created in the aluminium hull. This evidence was unchallenged and I find that the requirement t do anything that would or might compromise the seaworthiness of the Applicant’s boat is unreasonable.

97 I accept that the evidence of the Applicant related to a safe weighing 54 kilograms and that the Applicant had not explored other options. Accordingly my findings relate to the proposal to affix a 54 kilogram steel safe and I am unable to draw any conclusions with respect to the Respondent’s proposition concerning a 9.1 kilogram safe measuring 14.5 centimetres high and 16 centimetres wide and 16 centimetres deep in the absence of evidence from an independent expert in the field of the installation of steel safes on dinghies.

98 I also accept the Applicant’s evidence that it is not possible to hide a safe from public view in an open dinghy and accordingly find that the imposition of such a condition is unreasonable to guard against the risk of theft by criminals.

99 For the reasons set out above I am satisfied on the balance of probabilities that Conditions 16 and 17 imposed on the Applicant’s Category H licence should be set aside. It is of concern to the Tribunal that the Commissioner’s delegate saw it as appropriate to issue the Applicant with a Category H Business /Employment Commercial Fishing Licence on 17 August 2006 with an issue date of 12 December 2003 due to expire on 12 December 2008.

100 By dating the issue of the licence from the date of the decision of the Appeal Panel of the Administrative Decisions Tribunal affirming the Rice Judgment to grant the Applicant a Category H licence the Respondent has reduced the effective period of the licence from the prescribed five (5) year period to two (2) years. This two year period has been even further diminished by the protracted review process concerning the appropriateness of the imposition of the various conditions. I assume that proper steps will be taken to ensure that the Applicant will be provided with a licence with a five (5) year term.

101 Whilst the Tribunal is concerned about the apparent determination of the Respondent to put all possible (albeit untenable) obstacles in the way of the Applicant having the use of the licence in spite of the Rice Judgement, there is not sufficient basis for referring the matter to the Supreme Court.

As to Costs

102 However the Tribunal is comfortably satisfied that special circumstances do exist to suggest an order for costs in favour of the Applicant in the sum of $5,301.00.

ORDERS

1. That Conditions 16 and 17 on the Respondent’s Category H Firearms Licence be set aside.


2. That pursuant to section 88(1) and (2) of the Administrative Decisions Tribunal Act 1997 the Respondent be ordered to pay the fixed sum of $5,301.00 being legal costs properly incurred on the Applicant’s behalf.

21/02/2008 - 1. Paragraph 53 was deleted. 2. In various paragraphs, the words "anshun estoppel" replaced with "Anshun Estoppel".3. In various paragraphs, the word "license" replaced with "licence" - Paragraph(s) Paragraph 53, various, various