Thams v Commissioner of Police - [2016] NSWCATAD 184

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Thams v Commissioner of Police [2016] NSWCATAD 184
Hearing dates: 8 April 2016
Date of orders: 19 August 2016
Decision date: 19 August 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: N S Isenberg, Senior Member
Decision:
(1) The decision under review is affirmed.
(2) If the Respondent intends to press an application for costs I direct that:
(a) The Respondent file with the Tribunal and serve on the Applicant all evidence and submissions on which he intends to rely within 21 days after the date of publication of these reasons.
(b) The Applicant shall file and serve all evidence and submissions on which he intends to rely within 14 days from the end of the 21 day period.
(c) The Respondent shall file and serve all evidence and submissions in reply within 14 days after the end of the 14 day period in 2(b).
(3) Any costs application will be dealt with by the Tribunal on the papers without a hearing subject to any written submissions made by the Respondent within the 21 day period referred to above and any written submissions made by the Applicant within the first 14 day period referred to above.

Catchwords: FIREARMS – licence application – revocation of licence - public interest test – prior criminal and traffic infringement history.
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Act 2013
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996
Firearms Regulation 2006
Cases Cited: Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211
Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 18
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276
Ward v Commissioner of Police [2000] NSWADT 28
Wilkinson v Commissioner for Police [2002] NSWADT 59
Category: Principal judgment
Parties: Matthew Rodney Thams (Applicant)
Commissioner of Police (Respondent)
Representation: Solicitors:
Matthew Rodney Thams (Applicant in person)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 1510661

Reasons for decision

Background

This matter involves an application to the Tribunal (the Application) to review a decision of a delegate of the Respondent to revoke the Applicant’s category AB firearm licence (the Licence).
The Licence had been issued on 12 February 2013 and was suspended on 19 February 2015 on the grounds that the Applicant’s holding of the Licence was not in the public interest as the Applicant had on that date failed a category AB safety inspection at his safe storage address. The Commissioner revoked the License by notice dated 1 June 2015 (the Revocation Notice). The Applicant requested an internal review and on 23 September 2015 the revocation decision was affirmed by document headed Internal Review-Statement of Reasons (the Internal Review) On 20 October 2015 the Applicant applied to the Tribunal to review the revocation decision on the grounds that:

I feel the decision is wrong as I have…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Thams v Commissioner of Police

Details

AGLC: Thams v Commissioner of Police [2016] NSWCATAD 184
Case: [2016] NSWCATAD 184
Decision Date: 19 August 2016

CaseChat Overview and Summary

Thams was the applicant in this case, seeking judicial review of a decision by the Commissioner of Police to revoke his firearm licence. The matter was heard and determined by the Administrative Appeals Tribunal (AAT). The primary issue before the Tribunal was whether the Commissioner's decision to revoke the applicant's firearm licence was lawful and whether it was in the public interest. This involved assessing the relevance of the applicant's prior criminal and traffic infringement history to his suitability to hold a firearm licence.

The Tribunal examined the statutory framework governing firearm licences and the public interest considerations that must be taken into account when deciding whether to revoke a licence. The Commissioner argued that the applicant's history of criminal activity and traffic infringements demonstrated a pattern of irresponsible and potentially dangerous behaviour, which justified the revocation of his licence. The Tribunal found that the Commissioner's decision was well-reasoned and supported by evidence. It was concluded that the applicant's past conduct was relevant and significant in determining his suitability to hold a firearm licence, and that the revocation was in the public interest.

In reaching its decision, the Tribunal placed considerable weight on the applicant's criminal history, which included convictions for assault and drug offences, as well as numerous traffic infringements. The Tribunal found that these matters demonstrated a disregard for the law and a propensity towards behaviour that could endanger the community. It was determined that the risk posed by the applicant possessing a firearm outweighed any potential benefit to him or the community. The Tribunal affirmed the Commissioner's decision to revoke the applicant's firearm licence.

The Tribunal ordered that the decision under review be affirmed and outlined the process for any potential costs application. The Commissioner was directed to file and serve all evidence and submissions on which he intended to rely within 21 days after the date of publication of these reasons. The applicant was to respond within 14 days from the end of the 21-day period, and the Commissioner would then have a further 14 days to reply. Any costs application would be dealt with on the papers without a hearing, subject to written submissions from both parties.

Orders

Orders of the court

(1) The decision under review is affirmed.

(2) If the Respondent intends to press an application for costs I direct that:

(a) The Respondent file with the Tribunal and serve on the Applicant all evidence and submissions on which he intends to rely within 21 days after the date of publication of these reasons.

(b) The Applicant shall file and serve all evidence and submissions on which he intends to rely within 14 days from the end of the 21 day period.

(c) The Respondent shall file and serve all evidence and submissions in reply within 14 days after the end of the 14 day period in 2(b).

(3) Any costs application will be dealt with by the Tribunal on the papers without a hearing subject to any written submissions made by the Respondent within the 21 day period referred to above and any written submissions made by the Applicant within the first 14 day period referred to above.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Thams v Commissioner of Police [2016] NSWCATAD 184
Hearing dates:	8 April 2016
Date of orders:	19 August 2016
Decision date:	19 August 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N S Isenberg, Senior Member
Decision:	(1) The decision under review is affirmed. (2) If the Respondent intends to press an application for costs I direct that: (a) The Respondent file with the Tribunal and serve on the Applicant all evidence and submissions on which he intends to rely within 21 days after the date of publication of these reasons. (b) The Applicant shall file and serve all evidence and submissions on which he intends to rely within 14 days from the end of the 21 day period. (c) The Respondent shall file and serve all evidence and submissions in reply within 14 days after the end of the 14 day period in 2(b). (3) Any costs application will be dealt with by the Tribunal on the papers without a hearing subject to any written submissions made by the Respondent within the 21 day period referred to above and any written submissions made by the Applicant within the first 14 day period referred to above.
Catchwords:	FIREARMS – licence application – revocation of licence - public interest test – prior criminal and traffic infringement history.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Act 2013 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211 Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 18 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 Ward v Commissioner of Police [2000] NSWADT 28 Wilkinson v Commissioner for Police [2002] NSWADT 59
Category:	Principal judgment
Parties:	Matthew Rodney Thams (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Matthew Rodney Thams (Applicant in person) Lindsay Taylor Lawyers (Respondent)
File Number(s):	1510661