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

1. 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).

2. 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 done nothing wrong to have my firearms licence revoked.

The jurisdiction of the Tribunal

3. There is no dispute that pursuant to s 75 (1) (c) of the Firearms Act 1996 (the Act) the Applicant may apply to the Tribunal to review the Decision in accordance with the Administrative Decisions Review Act 1997 (the ADR Act).

4. In accordance with s 63 of the ADR Act the Tribunal is empowered to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law, and may exercise all of the functions conferred or imposed on the Commissioner. In determining the Application the Tribunal may affirm, vary or set aside the Decision or refer it back to the Commissioner to be further dealt with.

Material before the Tribunal

5. The Respondent relied on:

1. an 87 page bundle of documents filed under s 58 of the ADR Act (the s 58 documents);

2. an 86 page bundle of documents collectively called the Commissioner’s Evidence;

3. a hand drawn diagram prepared by Sgt G Keevers;

4. written submissions (RS) provided to the Tribunal at the hearing by Mr Zoppo, the solicitor appearing for the Respondent, and Mr Zoppo’s oral submissions.

6. During the course of the hearing Sgt Keevers and Snr Cst Schmidt gave oral evidence and were cross-examined by the Applicant.

7. The Applicant relied on the reasons extracted at [2] above in the Application and the reasons set out in his written request for an internal review by the Respondent of the initial revocation decision. These reasons are set out at pages 78 and 79 of the s 58 documents. The Applicant also relied on oral submissions he made during the hearing.

8. I observe that the material before the Tribunal included the following chronology:

1. 8 December 2015 - in a directions hearing, orders were made concerning the filing and serving of evidence and submissions by both the Respondent and the Applicant. The Applicant was ordered to file and serve his evidence and submissions by 11 January 2016.

2. 11 February 2016 - at the time that the dispute had been set down for hearing the Applicant spoke with me by phone and informed me that he was on his way to hospital for emergency surgery. He did not agree to the matter being dealt with on the papers already before me and claimed that some of the police evidence was false. He said that he wished to obtain statements from several witnesses to support his case and that he would be able to file and serve all of his additional evidence and submissions by 3 March 2016. I made orders including that the Applicant file and serve his evidence and submissions by 3 March 2016 and that the matter be set down for hearing on 8 April 2016.

3. 7 March 2016 - the Respondent’s lawyers sent a letter and an email to the Applicant. In part the communications reminded the Applicant that contrary to the orders made by the Tribunal he had not filed and served evidence by 11 January nor by 3 March and that unless his evidence was filed and served by 11 March the Commissioner would seek orders to dismiss the Application and that the Applicant pay the Respondent’s costs.

4. 16 March 2016 – Mr Zoppo sent to the Applicant a letter enclosing a facsimile sent to the Tribunal that morning. In short, the facsimile outlined the above history, noted that on 8 March the Applicant had telephoned Mr Zoppo and stated that his evidence would be filed by 11 March, however no evidence had been received by the Respondent from the Applicant. Mr Zoppo requested that the matter be relisted and that the Tribunal dismiss the Application and order that the Applicant pay the Respondent’s costs.

5. 22 March 2016 – Mr Zoppo sent an email to the Applicant informing him that the Tribunal had relisted the matter for 29 March 2016 to consider the Respondent’s application of 16 March.

6. 29 March 2016 - Deputy President Hennessy heard the application by the Respondent. The Applicant did not attend the hearing. The Respondent’s application was dismissed and the Application was relisted for hearing on 8 April. However, D P Hennessy ordered that the matter be determined on the basis of evidence already filed and the Applicant could not rely on evidence not already provided.

9. During the course of the hearing on 8 April, which the Applicant attended by phone, the Applicant sought to give oral evidence. Having regard to the above chronology, except where the oral evidence provided by the Applicant clarified evidence already before the Tribunal, the Applicant’s additional evidence was not admitted.

Factual background

10. On 19 February 2015 two police officers, Sgt G Keevers and Senior Constable M Schmidt (Snr Cst Schmidt) attended a residential property at Lake Heights (the Property) to conduct a firearms safe storage inspection. A Data Spreadsheet printed from the NSW Firearms Registry Database stated that firearms in the possession of each of the Applicant and his father (Mr R D Thams) were stored at the Property.

11. The Revocation Notice sets out a factual background of events leading to the decision of 1 June 2015 to revoke the Licence. Excerpts from that background include:

Information maintained by the NSW Police Force, specifically COPS Event …, reveals police attended your residence on 19 February 2015 to conduct a safe storage inspection of firearms belonging to you and your father. You were not present at the time however your father showed police the two separate receptacles located ….

During the inspection police discovered the receptacle in which your category AB firearms (sic) were stored was not secured appropriately to the brick wall. The concrete fasteners were loose and could be pulled from the wall by hand. The whole receptacle was loose and could easily be moved or pulled from the brick wall. The inspection was therefore deemed non-compliant. Subsequently, all firearms at the location were seized by police

Further firearm breaches were detected at the location. A …pistol … registered to your father, was found unsecured inside the master bedroom of the house where you and your wife sleep. Your wife has told police she did not know the pistol was there. Your father told police the pistol was not in the safe as he had been cleaning it approximately 50 minutes prior to their arrival. At the time your father had consumed an unknown quantity of alcohol and it is an offence to handle firearms while under the influence of alcohol pursuant to section 64(a) of the Firearms Act 1996 (the Act).

However, police doubt the veracity of this statement as there was no cleaning equipment evident in the room and your father could not locate the pistol when called upon to do so. He told police he put the pistol under the bed but police searched under the bed without success, eventually locating it hidden beneath slippers on a shelf in your bedside table….

You do not hold a Category H licence to authorise the possession of this type of firearm. When questioned later by police, both you and your father would not elaborate any further on how the pistol came to be next to your bed….of further concern… young children … live at the house and their safety could have been severely compromised by the pistol being left unsecured and easily accessible in your unlocked bedroom.

You attended Lake Illawarra Police Station on 21 February 2015, demanding the return of your seized firearms. You told police they had no right to seize your firearms and demanded that they be given back. When the Duty Officer explained the firearms would not be returned to you at that time you reportedly became abusive and aggressive towards police. You further informed police that if the firearms were not returned you wished to report them stolen.

Police were concerned about your behaviour and state of mind at the time of this incident and consequently submitted a report to the Firearms Registry… The report recommended that your firearms licence be revoked due to public interest concerns raised by the circumstances in how your father's pistol came to be stored in your bedroom, your past criminal history, and your aggressive behaviour towards police…

12. The Internal Review sets out a factual background at item B entitled Material Findings of Fact. That background includes the following:

That in the last ten years you have been issued with 19 traffic infringements;

That on 1 June 2001, you came before the Wollongong District Court where you were convicted of the offence 'Demand money with menaces with intent to steal'. You were sentenced to 18 months imprisonment which was suspended upon entering a good behaviour bond for 18 months pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999…. the District Court took into account…the following offences;

Receive stolen property …Charge date 13 December 1999

Good in/on premises reasonably suspected stolen — Charge date 13 December 1999

Possess housebreaking implements… Charge date 3 January 2000

Enter prescribed premises of any person w/o lawful excuse — Charge date 3 January 2000

Custody of knife in public place — Charge date 3 January 2000

Goods in/on premises reasonably suspected stolen — Charge date 28 January 2000

Receive stolen property… Charge date 7 February 2000

Self administer/attempt self administer prohibited drug (2 counts) — Charge date 7 February 2000

B&E Bldg commit felony (steal)… Charge date 7 February 2000

B&E Bldg commit felony (steal)… (2 counts) — Charge date 7 February 2000

Possess unregistered firearm - not proh firearm/pistol…Charge date 7 February 2000

Not keep firearm safely - not prohibited firearm/pistol — Charge date 7 February 2000

Self administer/attempt self administer prohibited drug — Charge date 8 May 2000;

That on 4 September 2001, at the Moss Vale Local Court you were convicted of the offence `Larceny…You were sentenced to 18 months’ imprisonment which was suspended on entering a good behaviour bond for 18 months pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999;

That you applied for a Category AB firearms licence on 9 June 2010 for the genuine reason of Recreational Hunting and Vermin Control however this licence was refused on 26 July 2010 due to your conviction for a prescribed offence;

You applied for a Category AB firearms licence on 26 November 2012 and this licence was issued on 12 February 2013 for the genuine reason of Recreational Hunting and Vermin Control based on permission from owner or occupier of rural land and club membership. One firearm was registered to this licence;

On 19 February 2015, your firearms licence was suspended and your firearm seized after a failed Category AB safe storage inspection at (the Property) Your firearm was also seized due to public interest concerns as police located your father's registered handgun unsecured in the bedroom where you and your wife sleep.

Consideration

Public interest versus private interest

13. The Applicant submitted during the hearing that he wanted the Licence in order to participate in a sport with his son and his father. He wanted the Licence for hunting and he had spent $10,000 on his sport.

14. Clause 19 of the Firearms Regulation 2006 (the Regulations) provides “The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.” Accordingly, a discretion exists in relation to a revocation decision by the Commissioner on public interest grounds. In this matter that discretion lies with the Tribunal.

15. The Respondent submitted at [4] in RS:

A discussion of relevant case law with respect to public interest was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276 at paragraph 69:

69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681:

"The purpose of the reference to 'public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation."

71 There is discretion with respect to whether to revoke the licence in this case. The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter.

16. Martin’ case also referred to Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59. In that decision D P Hennessy said at [25]:

As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. The improvement of public safety by promoting the safe and responsible storage of firearms is identified as one of the underlying principles of the Act. As is made clear from Part 4 of the Firearms Act Parliament did not leave the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licensees.

17. The principles and objects of the Act are set out in s 3 which relevantly states:

(1)  The underlying principles of this Act are:

(a)  to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b)  to improve public safety:

(i)  by imposing strict controls on the possession and use of firearms, and

(ii)  by promoting the safe and responsible storage and use of firearms, and

(c)…

(2)  The objects of this Act are as follows:

(a)…

(d)  to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e)  to ensure that firearms are stored and conveyed in a safe and secure manner,

(f)….

Safe storage of firearms

18. Part 4 of the Act, comprising ss 39 to 42A, relates to safe keeping of firearms. Section 39 is a general requirement to the effect that a person who possesses a firearm must take all reasonable precautions to ensure its safe keeping and that the Regulations may specify the precautions that are taken to be reasonable precautions for the purposes of the section.

19. There is no dispute that the Licence relates to firearm categories A and B (Category AB). Section 40 requires that the holder of a category A or category B licence must comply with the following requirements in respect of any firearm to which the licence applies:

(a)  when any such firearm is not actually being used or carried, it must be stored in a locked receptacle of a type approved by the

Commissioner and that is constructed of hard wood or steel and not easily penetrable,

(b)  if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal

20. The evidence of Sgt Keevers and Snr Cst Schmidt who inspected the receptacle at the Property in which the Applicant’s firearm was stored (the Safe) was to the effect that the Safe weighed less than 150 kg when empty. Sgt Keevers’ oral evidence was that he had 14 years’ firearms licensing experience and in his opinion the Safe weighed less than 40 kg. That evidence was not disputed by the Applicant and I accept it.

21. The COPS Event which appears at pages 24 to 33 of the s 58 documents, part of which was prepared by Sgt Keevers and the remainder by Snr Cst Schmidt states that on 19 February 2015, while seizing the firearms from the Safe, the police shook it to ascertain if it was fixed to prevent its easy removal. They found the Safe moved and easily twisted indicating that it was loose. The Safe was attached to the adjacent wall by one Dyna-Bolt (a brick/concrete fastening bolt) which Snr Cst Schmidt pulled partly out of the wall with his hand and one “roof type text screw”. A photograph of the partly dislodged Dyna Bolt appears at page 66 of the Commissioner’s Evidence. The COPS Event states that there were no other securing points or bolts fixing the Safe to the wall or floor to prevent its removal

22. The Applicant’s relevant evidence was that:

… police were only there to inspect my father’s firearms and his safe storage NOT MINE, however I do agree that one bolt in the safe was loose and the safe did wobble from sided (sic) to side a little due to the undulate floor it most certainly could not be pulled from the wall, however I have since had someone come and fix it in a different location with 8 self-expanding bolts to the wall.

23. The Applicant does not dispute that the Safe weighed less than 150 kg and concedes that one bolt in the Safe was loose and the Safe did wobble from side to side.

24. In cross-examination Sgt Keevers was asked whether the Safe moved and his answer was that Snr Cst Schmidt moved it easily. Later during the hearing Snr Cst Schmidt was cross-examined and his evidence was not challenged in respect of his movement of the Safe.

25. Having regard to the evidence before me, including photographs of the Safe in the context of the room where it was stored, the interior of the Safe and photographs of a loose Dyna Bolt protruding through a wall of the Safe, I prefer the Respondent’s evidence to that of the Applicant in respect of the security of the Safe. Accordingly, I find that the Safe, being the receptacle in which the Applicant stored his firearm when not in use or being carried, weighed less than 150 kg when empty and was not fixed in order to prevent its easy removal.

26. I observe that the undisputed evidence is that both the Applicant and his father stored their registered firearms at the Property. There is no evidence nor any submission that the inspection of the Safe on 19 February 2015 was illegal. Having regard to the statutory obligations on licensees to store their firearms safely I find that it is irrelevant whether the purpose of the inspection was to inspect Mr R D Thams’ firearms and their safe storage, rather than inspect the firearm and storage of the Applicant. I also find that it is not relevant that the Applicant was not at the Property at the time the inspection took place.

Factors other than safe storage and private interest

27. At [25] in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Appeal Panel said:

The “public interest” is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual

Likelihood of risk

28. Section 3 provides that the first of the underlying principles of the Act is that firearm possession “is conditional on the overriding need to ensure public safety”.

29. In the often quoted decision of Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, DP Hennessy said at [28]:

The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.

30. In Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 the Tribunal said at [41]:

The principal issue that I have to decide is whether there is a risk to the safety of the public if Mr. Brosowski's licence is reinstated. Before a licence is issued, the Commissioner must conclude that there is virtually no risk to the public associated with the issue of the licence. The likelihood of risk must be assessed by reference to the applicant's prior conduct. Mr. Brosowski has breached certain provisions of the Act in relation to storage of firearms even though he was not convicted of those offences.

31. In Bottomley v Commissioner of Police, New South Wales Police [2005] NSWADT 211 the Tribunal said at [19]:

One of the underlying principles of the Act is the improvement of public safety by imposing strict controls on the possession and use of firearms, and promoting the safe and responsible storage of firearms. Ensuring that only permitted firearms are in the possession of licensees and that those firearms are stored in a safe and secure manner decreases the likelihood that they may be used in committing serious offences against the community. It is clear from the legislation that Parliament has identified these matters as central and critical objectives of the legislation. Those principles and objectives have been reinforced in numerous decisions of this Tribunal…Parliament did not leave the matter of the manner in which firearms are to be stored to the discretion of licence holders but instead elected to impose detailed and prescriptive requirements on all licences.

Relevant prior conduct

32. The Applicant’s written evidence included:

Police say there was no cleaning equipment in the room, this is totally untrue because on the other side of the room there is a table and on that table is a vice (used to hold long arms for cleaning) and multiple boxes of cleaning kits as well as assorted bottles and spray packs, this is wear (sic) both myself and my father ALWAYS clean our firearms and this also was proven beyond reasonable doubt when dad attended court…

33. On the material before me I prefer the sworn evidence of Sgt Keevers and Snr Cst Schmidt to the unsworn statement by the Applicant as to whether or not firearm cleaning equipment was on a table in the bedroom where Mr R D Thams’ pistol was located by police on 19 February 2015.

34. I reject the evidence that Mr R D Thams was cleaning his pistol in the bedroom and placed it under the bed immediately before the police inspection. I make no finding as to whether or not the Applicant was aware at the time of the inspection that his father’s pistol was in his bedroom at the relevant time. However, I find the Applicant’s evidence in support of his father highly implausible.

35. I am not persuaded that a judicial officer would have indicated that any factual background such as the extracted statement in [32] would have been found to have been “proven beyond reasonable doubt”.

36. No other evidence was brought to my attention during the hearing concerning the result of any charges against the Applicant’s father arising from the events of 19 February 2015. However, at page 72 of the Commissioner’s Evidence is a Criminal History – Bail Report in respect of Mr R D Thams which provides that on 18 June 2015, in respect of a charge of category C, D or H licensee not comply with storage needs on 19 February 2015, the outcome was a 12 month bond pursuant to s 10. I take it that this is a reference to the relevant offence having been proven and a 12 month good behaviour bond having been imposed on Mr R D Thams pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 without a conviction having been recorded.

37. After the Applicant’s written statement extracted at [32] above the Applicant continued:

as for the police saying that I wouldn’t elaborate any further that is not the case I told them that dad was cleaning it but they did not believe me however it turns out that was the truth they just wouldn’t accept it, and a magistrate was more than satisfied that was the truth

38. There is no corroborative evidence before me supporting the Applicant’s statement. It may be that particular aspects of charges against Mr R D Thams were not held by the magistrate to be proven beyond reasonable doubt. However, this would be speculation on my part and I make no findings as to what may have occurred in the Local Court.

39. In his request for an internal review the Applicant wrote:

As far as my past criminal history goes it was well over ten years ago, i was young and heavily dependent on drugs, i was not a nice person, however I chose to change my ways and become a person of good character someone that is honest and well respected in the community as far as my low range PCA offence in 2013 i work as a D.J for a living and therefore i work in pubs and clubs unfortunately on this occasion i had 1 beer to many as my blood alcohol content was 0.05, i am not a violent or aggressive person it simply not in my character and i have many friends with firearms licences that would be more than willing to give character references to that effect. (sic)

40. I observe that notwithstanding:

1. the above statement to the effect that the Applicant had many friends with firearms licences who would be willing to give character references for him;

2. the statement by the Applicant to the Tribunal on 11 February 2014 that he would obtain and provide to the Tribunal several relevant references by 3 March; and

3. the statement by the Applicant to Mr Zoppo that he would provide evidence by 11 March,

no evidence was provided to the Tribunal other than the Applicant’s statement in his request for an internal review.

41. The Applicant did not dispute any of the traffic infringement or criminal history set out at [12] above. In his closing submissions the Applicant said that although he had been a criminal person it was now 10 years later and he had reformed. He also said that he did nothing wrong in relation to the storage of his firearm and that an occasion in which he drove while disqualified occurred as he was trying to work for his family rather than go on the dole. He sought to justify his action by saying he works late at night, there is no public transport and there is no other traffic on the road.

42. The Applicant submitted that I should accept that he was a changed character.

43. I accept that there is no evidence before me of recent criminal convictions of the Applicant. However, I also observe that in addition to the Applicant’s admission of driving while disqualified, the Internal Review referred to 2 additional traffic offences committed since the Applicant was issued with the Licence a little over 3 years ago.

44. Section 36 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) provides the guiding principle to be applied to proceedings in the Tribunal and that is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. I observe that subsection 36 (3) provides that each party to the Tribunal is under a duty to co-operate with the Tribunal to give effect to the guiding principle and for that purpose to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal.

45. I also observe that multiple failures by the Applicant to comply with the Tribunal’s directions in respect of the provision of evidence and submissions, his failed undertaking to the Tribunal on 11 February 2016 that he would provide statements by several witnesses and his failed undertaking to Mr Zoppo to provide evidence by 11 March 2016 do not indicate that the Applicant was co-operating with the Tribunal or complying with the directions and orders of the Tribunal.

46. The Applicant’s lengthy criminal history, his numerous, including recent, traffic infringements, his statement as to the reason for driving while disqualified and his failure to comply with the Tribunal’s directions in relation to evidence and submissions indicates a propensity to disregard the law when it is convenient for him to do so. He has failed to acknowledge responsibility in respect of the firearm storage infringement and submitted that he should retain the Licence for his personal sporting pleasure.

47. Section 3 of the Act provides that an underlying principle of the Act is to confirm that firearm possession and use is a privilege which is conditional on the overriding need to ensure public safety. The Act imposes strict controls on the safe and responsible storage of firearms. The Applicant’s long and continuing history of failing to comply with the law when it suits him does not enable me to be satisfied that there is virtually no risk to the public should he retain his Licence.

Decision

48. In the circumstances the correct and preferable decision is that the Tribunal affirms the revocation of the Licence.

Application for costs

49. The Respondent indicated that he would seek an order for costs incurred in these proceedings. Section 60 of the CAT Act provides a general rule that each party to proceedings in the Tribunal is to pay their own costs and that the Tribunal may award costs only if it is satisfied that there are special circumstances warranting an award of costs. Subsection 60 (3) provides that the Tribunal may have regard to certain matters in determining whether there are special circumstances warranting an award of costs.

50. I informed the Respondent that I would consider an application for costs after my decision in these proceedings was published. If the Respondent intends to press an application for costs I direct that 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. The Respondent shall have regard in his evidence and submissions to such of the matters in subsection 60 (3) as the Respondent believes are relevant. The Applicant shall have 14 days from the end of the 21 day period to file and serve his evidence and submissions in reply. The Respondent shall have 14 days after the end of the 14 day period to file and serve any evidence and submissions in reply.

51. I propose to dispense with a hearing pursuant to s 50 of the CAT Act subject to any relevant written submissions the Respondent may file and serve by the end of the 21 day period and any relevant written submissions the Applicant may file and serve by the end of the first 14 day period.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

22 August 2016 - Publication restriction removed (appeared in error).

Decision last updated: 22 August 2016