Wilson v Commissioner of Police, NSW Police Force

[2025] NSWCATAD 177

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Wilson v Commissioner of Police, NSW Police Force [2025] NSWCATAD 177

Hearing dates:

29 January 2024, 30 January 2024, 21 March 2024, 30 April 2024 and 7 May 2024.

Date of orders:

23 July 2025

Decision date:

23 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Rogers, Senior Member

Decision:

(1) The decision of the Commissioner of Police to refuse Mr Wilson’s application for a Category ABH firearms licence is affirmed.

(2) Mr Wilson is to pay the costs of the Commissioner in the fixed amount of $1,275.

Catchwords:

ADMINISTRATIVE REVIEW - Firearms Act 1996 – refusal of a Category ABH firearms licence – fit and proper person - continuous and responsible control – way of living or domestic circumstances – public interest – conduct of Applicant and his son – treatment of confidential evidence

COSTS – special circumstances – late filing of material by the Applicant – costs order made

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Crimes (Sentencing Procedure) Act 1999

Evidence Act 1995

Firearms Act 1996

Cases Cited:

203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29

AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5

Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321

Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254

Briginshaw v Briginshaw (1938) 60 CLR 336

Commissioner of Police v Toleafoa [1999] NSWCATAP 9

Commissioner of Police, New South Wales Police v Mercer [2005] NSWADTAP 55

Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16

Conway v Commissioner of Police [2023] NSWCATAD 183

Cripps and Anor v G & M Dawson Pty Ltd and Anor; G & M Dawson Pty Ltd and Anor v Cripps and Anor [2006] NSWCA 81

Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50

CXZ v Children’s Guardian [2020] NSWCA 338

Dale v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 134

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

El-Chamy PSM v Commissioner of Police, NSW Police Force [2023] NSWCATAD 242

Emery v Commissioner of Police [2022] NSWCATAD 122

Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127

Joseph v NSW Commissioner of Police [2017] NSWCA 31

Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273

LY v Commissioner of Police, NSW Police [2004] NSWADT 115

M v M (1988) 166 CLR 69; [1988] HCA 68

Martin v Commissioner of Police, New South Police Force [2017] NSWCATAD 97

McDonald v Director-General of Social Security (1984) 1 FCR 354

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62, 68; [1980] FCA 85

Pendrick v Commissioner of Police, NSW Police Force (No 2) [2022] NSWCATAD 27

Petas v Commissioner of Police, NSW Police [2013] NSWADT 137

Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247

Ryan v Commissioner of Police [2021] NSWCATAD 23

Spuds Surf Chatswood Pty Ltd v PT Ltd (No 4) [2015] NSWCATAP 11

Styles v Wollondilly Shire Council [2017] NSWCATAP 108

Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93

Tolley v Commissioner of Police, NSW Police [2006] NSWADT 149

Ward v Commissioner of Police, New South Police Service [2000] NSWADT 28

Webb v Commissioner of Police New South Wales Police [2004] NSWADT 110

Wilson v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 127

Wilson v Commissioner of Police, New South Wales Police Force [2015] NSWCATAP 248

Wilson v Commissioner of Police, NSW Police Force [2023] NSWCATAD 271

Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85

Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115

Category:

Principal judgment

Parties:

Glenn Wilson (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Applicant (self-represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00085252

Publication restriction:

(1) Publication of the Confidential Material, Confidential Affidavit and matters contained in the Confidential Material and Confidential Affidavit is prohibited. This order is made pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 2013.
(2) Publication of the Second Confidential Bundle or of the matters contained in the Second Confidential Bundle is prohibited. This order is made pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 2013.
(3) Disclosure of the Confidential Material, Confidential Affidavit and matters contained in the Confidential Material and Confidential Affidavit is restricted to the Respondent, the Respondent’s legal representatives and the Tribunal. This order is made pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013.
(4) Disclosure of the Second Confidential Bundle or of matters contained in the Second Confidential Bundle is restricted to the Respondent, the Respondent’s legal representatives and the Tribunal. This order is made pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013.
(5) Publication or reporting of the two private hearings, including any evidence given in both private sessions, is prohibited. That order was made under section 64(1)(b) and (c) Civil and Administrative Tribunal Act 2013.
(6) Publication of the material in those paragraphs marked ‘[NOT FOR PUBLICATION]’ is prohibited.

REASONS FOR DECISION

1. Mr Wilson applied for a Category ABH firearms licence but on 25 September 2022 the Commissioner of Police decided to refuse him the licence.

2. Mr Wilson sought administrative review of that decision and it falls to the Tribunal to decide what is the correct and preferable decision.

Background

Early licence history, 2012 charge and 2013 revocation

3. Mr Wilson held a Category ABH firearms licence (licence) from 1998.

4. On 18 December 2012 the Commissioner of Police (Commissioner) suspended Mr Wilson’s firearms licence when he was charged with ‘possess or use a prohibited weapon without permit’ in connection with the possession of six Glock pistol magazines with a capacity exceeding 10 rounds
   (2012 charge).

5. On 20 June 2013 the Commissioner of Police (Commissioner) revoked Mr Wilson’s firearms licence and this decision was later affirmed on internal review.

2014 licence application and Appeal Panel decision in 2015

6. Mr Wilson made a fresh application for a firearms licence in February 2014. The Commissioner refused the application and that decision was affirmed on internal review.

7. Mr Wilson made an administrative review application and the Tribunal affirmed the decision to refuse Mr Wilson a firearms licence (refer to Wilson v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 127). However, on appeal the Appeal Panel set aside the order below and made the decision that Mr Wilson be granted a Category ABH licence (refer to Wilson v Commissioner of Police, New South Wales Police Force [2015] NSWCATAP 248) (2015 Appeal).

2021 licence renewal application and decision under review

8. The licence granted following the 2015 Appeal was due to expire and so on 25 March 2021 Mr Wilson made an application to renew his Category ABH firearms licence.

9. The Commissioner refused the application on 25 September 2022 on the basis of the following:

1. In 2013 Mr Wilson was found guilty in the Local Court of ‘possess or use a prohibited weapon without permit’ (2012 charge) in respect of six Glock magazines which exceeded the permitted capacity of 10 rounds, refer to [4] above.

2. In 2018 Mr Wilson and his son were in a car accident and Mr Wilson said he was the driver of the car. A witness told Police Mr Wilson was not the driver and he was charged with ‘responsible person/custodian not disclose driver’s details’ and ‘knowingly make false/misleading statement’ (2018 Charges). At the time of the Commissioner’s decision to refuse Mr Wilson’s 2021 licence application these charges were yet to be dealt with in the Local Court.

3. In May 2022 Mr Wilson was charged with ‘drive while licence cancelled’ (2022 Charge) and that charge was also not yet determined in the Local Court as the time of the refusal of the 2021 licence application.

10. The Team Leader who made the decision to refuse the application said that Mr Wilson was a “dishonest person who knowingly disobeys licensing laws” and concluded that he was not a fit and proper person to be granted a firearms licence.

11. The Commissioner’s 25 September 2022 decision to refuse Mr Wilson’s application for a Category ABH firearms licence is the decision under review in this proceeding.

Internal review

12. After the Commissioner made the 25 September 2022 refusal decision, Mr Wilson exercised his right to an internal review.

13. On 16 February 2023, the Senior Adjudicator conducted an internal review and affirmed the decision on varied grounds. The Senior Adjudicator considered the following aspects:

1. The Magistrate found Mr Wilson guilty of the 2012 charge, but the charge was dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999.

2. The 2015 Appeal resulted in Mr Wilson being granted a firearms licence.

3. The charges laid in 2018 of ‘responsible person/custodian not disclose driver’s details’ and ‘knowingly make false/misleading statement’.

14. The Senior Adjudicator considered that Mr Wilson had “expressed no understanding…that [he was] guilty of breaching prohibited weapons legislation”. The Senior Adjudicator said that the “current charge” was for “prescribed offences involving dishonesty” and were not yet determined by the Local Court. However, the Senior Adjudicator was satisfied on the balance of probabilities that the offences occurred as alleged by Police. The Senior Adjudicator ultimately decided that the issue of the licence to Mr Wilson would be contrary to the public interest and so affirmed the refusal decision.

Outcomes of criminal charges

15. It is helpful at this point to note from Mr Wilson’s Criminal History that:

1. The 2012 prohibited weapons charge was dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999. This means that the Magistrate found Mr Wilson guilty of the offence, but did not proceed to conviction. According to the transcript of the Local Court, Mr Wilson entered a pleas of guilty to that charge.

2. The charges laid in 2018 consisted of the following:

1. ‘Resist or hinder police officer in the execution of duty’ – this charge was withdrawn.

2. ‘Do act etc intending to pervert the course of justice’ – this charge was withdrawn.

3. ‘Knowingly make false/misleading statement’ – this charge went to hearing and Mr Wilson was found not guilty.

4. ‘Responsible person/custodian not disclose driver’s details’ – this charge went to hearing and Mr Wilson was found not guilty.

3. The 2022 Charge of ‘drive while licence cancelled’ was ultimately dismissed.

16. It should be noted that at the date of the internal review on 16 February 2023 the charges referred to at [15(2)(c)] and [15(2)(d)] had not yet been determined by the Local Court. The charge referred to at [15(3)] had been determined.

Current application to NCAT for administrative review and extension of time

17. Mr Wilson lodged an application for administrative review at a Service NSW office on 14 March 2023. The application was received in the Tribunal’s Registry on 30 March 2023. The Tribunal extended time for Mr Wilson to file the application for administrative review to 30 March 2023, by order made on 30 January 2024.

Interlocutory applications made prior to the substantive hearing

18. Both parties made applications under section 64 of the Civil and Administrative Tribunal Act 2013.

19. The Tribunal granted the Commissioner’s application on 2 August 2023 and made an order under section 59 of the Administrative Decisions Review Act 1997 that the Commissioner not lodge a copy of the Confidential Material as specified in the Confidential Affidavit with the Tribunal as would have ordinarily been required under section 58 of the Administrative Decisions Review Act 1997. The Tribunal also made orders under section 64 of the Civil and Administrative Tribunal Act 2013 which included orders that:

1. Prohibited the publication of the Confidential Material and Confidential Affidavit and matters contained in the Confidential Material and Confidential Affidavit, pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 2013; and

2. Restricted disclosure of the Confidential Material and Confidential Affidavit and matters contained in the Confidential Material and Confidential Affidavit to the Respondent, the Respondent’s legal representatives and the Tribunal, pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013.

20. On 19 October 2023 the Tribunal refused the application made by the Mr Wilson for orders under section 64 over certain material. The Tribunal published reasons for its decision: refer to Wilson v Commissioner of Police, NSW Police Force [2023] NSWCATAD 271.

Administrative review jurisdiction

21. The case came before me to hear and determine the substantive application for administrative review of the decision made by the Commissioner on 25 September 2022 to refuse Mr Wilson a Category ABH firearms licence.

22. The Tribunal’s jurisdiction to review a decision of the Commissioner of Police to refuse to issue a firearms licence is derived from section 75(1)(a) of the Firearms Act 1996. That jurisdiction is exercised under the Administrative Decisions Review Act 1997.

23. When determining an application for administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: section 63 of the Administrative Decisions Review Act 1997.

24. The Tribunal is not confined to only considering the material that was before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

25. The Tribunal is to approach the issue of whether the firearms licence should be granted to the Applicant afresh, without any presumption as to the correctness of the decision under review: see McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357.

Relevant legislation

26. The Firearms Act 1996 establishes a licensing and permit scheme for the possession and use of firearms in NSW. Unless otherwise stated, all references to legislative provisions in these reasons for decision are to the Firearms Act 1996.

27. The underlying principles set out in section 3(1) the Firearms Act 1996 include:

…(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…

28. The objects of the Firearms Act 1996 in section 3(2) include

…(b)  to establish an integrated licensing and registration scheme for all firearms,

(c)  to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(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…

29. On receipt of an application for a firearms licence, the Commissioner has the discretion to issue the licence or to refuse the application: refer to section 11(1) of the Firearms Act 1996.

30. A licence must not be issued unless the Commissioner is satisfied that the applicant is “a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace”: section 11(3)(a) of the Firearms Act 1996.

31. Section 11(4) of the Firearms Act 1996 states that a licence must not be issued if the Commissioner has reasonable cause to believe the applicant may not personally exercise continuous and responsible control over firearms because of:

(a)  the applicant’s way of living or domestic circumstances, or

(b)  any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or

(c)  the applicant’s intemperate habits or being of unsound mind.

32. The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be “contrary to the public interest”: section 11(7) of the Firearms Act 1996.

The hearing

The use of names in these reasons for decision

33. To avoid confusion, in these reasons I will refer to the Applicant, Mr Glenn Wilson, as Mr Wilson. I will refer to his sons, Mr Christopher Wilson and Mr Scott Wilson, by their first names, Christopher and Scott, or full names, Christoper Wilson and Scott Wilson (but not as Mr Wilson).

Interlocutory orders and other procedural issues at hearing

Parts of hearing conducted in private

34. When the substantive hearing of the administrative review came before me on 29 January 2024, I determined that I should conduct part of the hearing as a hearing in private under section 49(2) of the Civil and Administrative Tribunal Act 2013.

35. Previous orders had been made by the Tribunal restricting disclosure and publication of the Confidential Material and Confidential Affidavit (refer to [19] above). In order to deal with this confidential material, I was satisfied that it was desirable to conduct part of the hearing in private to hear the Commissioner’s representative about nature of the Confidential Material, whether it should be admitted into evidence and if so, its relevance and probative value to the issues before the Tribunal. Part of the hearing on 21 March 2024 was conducted in private, that is, in the absence of Mr Wilson and the public.

36. The Respondent later sought a second private session and for the same reasons I decided to make an order under section 49(2) of the Civil and Administrative Tribunal Act 2013 that there be second session conducted in private. This session was conducted on 7 May 2024 in the absence of Mr Wilson and the public.

37. I made orders prohibiting the publication or reporting of the two private hearings, including any evidence given in both private sessions. That order was made under section 64(1)(b) and (c) Civil and Administrative Tribunal Act 2013.

38. I also made orders in respect of eight pages of documents (Second Confidential Bundle) handed up by the Respondent at the second confidential hearing. Those orders were as follows:

1. The disclosure of the Second Confidential Bundle or of matters contained in the Second Confidential Bundle is restricted to the Respondent, the Respondent’s legal representatives and the Tribunal, pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013.

2. Publication of the Second Confidential Bundle or of the matters contained in the Second Confidential Bundle is prohibited, pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 2013

39. The reason I made these orders was that the material filed in the second confidential hearing explains terms used in the existing Confidential Material and Confidential Affidavit and if the orders were not made then there would be disclosure of information which is referred to in the Confidential Material and Confidential Affidavit.

Leave given to Mr Wilson to file further evidence

40. When I reconvened the hearing on 21 March 2024, the third day of hearing, Mr Wilson sought to reopen the evidence. At that point Mr Wilson had already presented his case and completed making his oral closing submissions. The legal representative for the Respondent was part way through closing submissions. Mr Wilson sought to tender additional documents, including 345 pages of transcript and other documents from various other proceedings.

40. Mr Madden, on behalf of the Commissioner, objected to the application to reopen the evidence.

41. I granted leave for Mr Wilson to file the following material:

1. Copies of the transcripts and the Supreme Court consent order that Mr Wilson had provided to the Tribunal and the Respondent’s lawyer by email on 19 March 2024.

2. The written submissions of both the prosecution and the defence in the Local Court proceedings which were prepared for the Local Court hearing on 20 February 2023.

3. Transcript of the Local Court hearing on 20 February 2023.

4. The charge sheet from the Local Court proceedings.

43. The material which Mr Wilson wished to file was served outside the procedural timetable and at a late stage in the proceeding. Mr Wilson had already completed his closing address, which would ordinarily signal the completion of his case. As set out in the directions I made on 30 January 2024, what I anticipated would occur on 21 March 2024 was that the Commissioner’s representative would complete closing submissions and Mr Wilson would have an opportunity to respond to those closing oral submissions. Then the confidential hearing would take place and the hearing would then conclude.

44. What in fact occurred is that on 19 March 2024 Mr Wilson sent an email to the Tribunal Registry to which he attached documents including court transcript.

45. Mr Madden argued that there would be significant prejudice to the Commissioner if I were to allow the reopening of the evidence at that late stage. He said Mr Wilson was aware of the Commissioner’s case in respect of the 2018 driver-swapping allegation which was the subject of that new material. Mr Madden argued that it was only when Mr Wilson’s evidence was impugned, that Mr Wilson sought to file additional evidence seeking to show the evidence of Mr Gabell, a witness in the criminal proceeding was false or unreliable (refer to the discussion below under the heading ‘Evidence’ and then ‘The 22 May 2018 car accident’).

46. I had asked Mr Wilson at the hearing on 30 January 2024 why he had not filed the transcripts. When Mr Wilson later sought to reopen the evidence, I asked him why, if he filed evidence in response to my question about the transcripts, it took him to 21 March 2024 to file a copy of that material. That was about six weeks after 30 January 2024. He said he had been flat out with a Supreme Court case he is involved in.

47. Mr Wilson said that it was not until the Respondent’s closing address started that he was aware the Commissioner’s case was that there was no evidence for the claims he made in the witness box. I told Mr Wilson that it was his obligation to prepare his own case.

48. After hearing both party’s arguments, I decided to allow the reopening of the evidence on the basis that the material was relevant to the decision under review and any factual findings I might make about one of the key parts of the Respondent’s case, that is whether or not Mr Wilson substituted himself as the driver in the 22 May 2018 car accident. I considered the guiding principle in section 36 of the Civil and Administrative Tribunal Act 2013, which is to facilitate the just, quick and cheap resolution of the real issues in proceedings and whether the cost to the parties and the Tribunal of allowing the reopening of the evidence was proportionate to the importance and complexity of the subject-matter of the proceedings: section 36(4) of the Civil and Administrative Tribunal Act 2013. I ultimately decided that I should allow this further material as it was directly relevant to the decision I had to make and the issues in dispute. I set out the specific documents I would allow Mr Wilson to file and refused his request to file the entire brief of evidence in the criminal proceedings. I also set a timetable for any costs application the Respondent wished to make. I provided the Commissioner with an opportunity to prepare any brief written submissions on the question of whether the Respondent would request that Mr Wilson be recalled for cross-examination.

49. At the commencement of the hearing on 30 April 2024, Mr Wilson again sought to tender the entire brief of evidence filed in the 2018 Local Court criminal proceedings. I refused this request. I had made orders on 21 March 2024 allowing for the filing of further evidence including the charge sheet from the Local Court proceedings. I refused the request to file the entire brief of evidence as Mr Wilson did not provide reasons as to why the whole brief would be relevant to this administrative review proceeding. I was also satisfied that I should refuse to allow this further material as it would be contrary to the guiding principle in section 36 of the Civil and Administrative Tribunal Act 2013 and in particular, because of the costs imposed in connection with preparation and hearing time and would not be proportionate to the importance and complexity of the issues in this proceeding.

50. At the hearing on 30 April 2024, I granted leave to Mr Wilson to file a letter from his doctor which he said would support his evidence that he had ceased taking anti-depressants. I admitted this document into evidence but struck out the final sentence. I did this because this sentence did not provide the basis of the expert opinion given and the Respondent did not have the opportunity to summons the doctor in order to cross-examine him about this opinion, given the late filing of that document on 7 May 2024.

Section 128 certificate

51. I issued Mr Wilson with a certificate under section 128 of the Evidence Act 1995 in respect of certain oral evidence he gave at the hearing on 29 January 2024. The certificate covered certain answers Mr Wilson gave under cross-examination set out at under the hearing ‘Evidence’ and then ‘Other information’ below about moneys Mr Wilson said were held in a solicitor’s trust account that Mr Wilson may not have declared as income to Centrelink.

Costs application and timing of hearing of that application

52. The Commissioner made a costs application in this proceeding. I refused the Commissioner’s request to hear the costs application prior to the conclusion of the substantive hearing. The Commissioner requested a stay of the hearing of the substantive application pending the making of the costs order and the giving of security for costs.

53. Mr Madden submitted on 30 April 2024 that I should hear the costs application at that time rather than at the conclusion of the substantive hearing because Mr Wilson had given evidence that he had divested himself of assets and was a “man of straw”. Mr Madden suggested that Mr Wilson would therefore avoid the operation of any costs order. Mr Madden suggested that would be an ”abuse of process”. He said the Commissioner’s position was that the matter should be adjourned until the Commissioner had security for costs.

54. Mr Wilson said he had a large legal bill in other proceedings and had sold assets for that purpose. He argued that if the Tribunal was to temporarily stay the proceedings in order to require security for costs, he would incur further costs as he had to travel to Sydney from a regional area in order to appear in person at the hearing. Mr Wilson thought the Respondent’s request was designed to stall the proceeding.

55. I rejected the Respondent’s request to determine the costs application on 30 April 2024, prior to the conclusion of the substantive hearing on the basis that there was no guarantee that any such order would be made, given the requirement in section 60 of the Civil and Administrative Tribunal Act 2013 that there be special circumstances warranting an award of costs. I considered that I would be better able to determine that application at the conclusion of the entire proceeding, given the considerations I was required to take into account under that provision, for example, how a party conducted the proceedings or whether a party was responsible for prolonging unreasonable the time taken to complete the proceedings. Those considerations were better assessed at the end of the proceeding and for that reason I refused the Respondent’s request to determine the costs order prior to the conclusion of the substantive hearing.

56. I heard the costs application in the open session on 7 May 2024. A second confidential hearing followed and I then reserved my decision on the substantive application and the costs application. My decision on the Respondent’s costs application can be found below under the hearing ‘Consideration’ and then ‘Costs application’.

Error in Respondent’s written submissions

57. Mr Wilson pointed out errors in the Commissioner’s written submissions at [65] of those submissions, where part of his traffic record is said to be set out. Mr Madden, solicitor for the Respondent conceded the errors. Further reference is made to this aspect of the case at [207] below.

Opening submissions

The Respondent

58. Mr Madden argued that the Tribunal must be satisfied that Mr Wilson is a fit and proper person and if the Tribunal does not make that finding, the firearms licence must not be issued. He submitted that the Tribunal must be positively satisfied of that fact.

59. Mr Madden argued that Mr Wilson’s relationship with his son, Christopher Wilson, would lead the Tribunal to conclude that there is reasonable cause to believe Mr Wilson may not personally exercise continuous and responsible control over firearms because of his domestic circumstances. Mr Madden focussed on the wording of the provision and submitted that the Tribunal need not find that there is reasonable cause to believe that it is likely that Mr Wilson will not exercise that control over firearms. Rather, the section says may not personally exercise continuous and responsible control. Mr Madden suggested that all that was required was for the Tribunal to have reasonable cause to believe that Mr Wilson may not exercise the control, which he said was an “extraordinarily low” hurdle to meet to make such a finding.

60. Mr Madden said that the discretion the Commissioner has to refuse the issue a licence if she considers that to do so would be contrary to the public interest captures a broad range of considerations. He said that the private interests, that is, the interests of Mr Wilson in holding a firearms licence, are not to be taken into account unless they overlap with the public interest.

61. Mr Madden identified that there was a factual dispute between the parties about certain incidents that occurred. He explained that some of the factual matters on which the Commissioner relied did not result in a criminal conviction, either because the charges were withdrawn or they were dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999. Some convictions followed guilty pleas. However, he submitted that there are situations where the Tribunal need not reach a positive finding about factual matters but the evidence still contributes to the Tribunal’s conclusions on risk to public safety. He said that the risk is the issue for determination in dealing with firearms licence applications.

62. Mr Madden cited the case of Emery v Commissioner of Police [2022] NSWCATAD 122. In that case the concern was that there might be a risk that applicant’s son may access firearms in order to self-harm. Mr Madden said there was no evidence in that case that the son knew how to access the applicant’s firearms but the Tribunal was nevertheless satisfied there was a risk that he may do so.

63. Mr Madden also referred to the High Court case of M v M (1988) 166 CLR 69 which he submitted stood for the proposition that the Tribunal must consider all of the evidence in assessing risk, including the possibility that events may have occurred. This may be sufficient to demonstrate a risk. He said in respect of those allegations that did not result in findings beyond reasonable doubt in a criminal court, the Tribunal might nevertheless consider those allegations and find they occurred, or if it did not make those positive findings, the allegations can form part of the circumstances which the Tribunal must consider for the assessment of risk.

The Applicant

64. Mr Wilson pointed out that he was successful in the 2015 Appeal, with the result that the Appeal Panel ordered that he be issued with a firearms licence. For five years following that decision he said he had no problem. When it came to the time to renew his licence he applied again and after 18 months the Commissioner then refused the application.

65. Mr Wilson argued that there was nothing that would cause the Tribunal to affirm the licence refusal decision. Rather, he suggested that Police had “sour grapes” and that was why they opposed the application. The circumstances of his possession of the pistol magazines with a capacity exceeding 10 rounds (referred to at [4]) were considered by the Local Court with the result that the charge was dismissed under section 10. The Appeal Panel also considered the same circumstances and determined there was no risk. The 2018 charges that proceeded to trial were all dismissed. He said the Magistrate said the Police had no evidence against him and it was all pure suspicion.

66. Mr Wilson argued that there was nothing on his criminal record or any incidents which showed he should not be issued with a firearms licence. He said he is a fit and proper person and no threat to public safety or the peace.

67. Reference was made during opening arguments to the Tribunal standing in the shoes of the Commissioner in determining the administrative review. Mr Wilson said it was not the Tribunal’s job to stand in the Commissioner’s shoes. I took time to explain to Mr Wilson, who was self-represented at hearing, that this phrase refers to the fact that the Tribunal is an independent body charged with remaking the decision the Commissioner had to make. It comes to the decision afresh and considers the evidence presented to it in order to determine what is the correct and preferable decision about whether or not Mr Wilson should be issued with a firearms licence.

68. Mr Wilson said that the information the Commissioner relied on from the Computerised Operational Policing System (COPS) was a “broken jigsaw” and “just guesswork”. He contended that there were no real facts but a “conglomeration in COPS of guesswork”.

69. Mr Wilson said that the concerns the Commissioner raised about his relationship with his son, Christopher Wilson , were a “long bow” to draw. There were no problems between himself and his son and he remarked that people should not “paint everyone with the same brush”.

70. Mr Wilson submitted that a finding there was reasonable cause to believe that he may not personally exercise continuous and responsible control over firearms must be based on facts, not hearsay, assumptions and inferences. He said that there was “masses and masses of misinformation” and the Appeal Panel decision confirmed that. He later said the Tribunal must be satisfied of the facts and not make a decision based on hearsay or secret information. He suggested there was bias from Police and that Police were “not happy with someone who stands up against them”. He said that Police have an “attitude problem” and have “got it in for [him]”. He alleged that Police misinformed the courts and their case was wrong and false and “guesswork”. This led to the charges falling over.

71. Mr Wilson argued that if what the Respondent refers to was enough for a refusal decision, then no-one would get a firearms licence. He said that just because a person is charged with a criminal offence does not mean they are guilty. He said he had never been convicted of anything. In fact, every jurisdiction that has considered his case has disagreed with the Police.

72. Mr Wilson said that he was being painted as a criminal and not trustworthy and of poor character. He considered the case to be a fight over his good name.

73. Mr Wilson submitted that the Tribunal should look at all the information and reach conclusions on real facts and his history. He argued that any confidential evidence would involve claims that are assumed and no clear evidence at all. He said the Commissioner had “lump[ed] [his] son into the situation” and he should not have to prove someone in his family was good.

74. Mr Wilson said there was no evidence that he would be influenced by anyone in his family, including his two sons. He believed that Police were seeking to characterise Christopher as “some super criminal”. He said his son had been charged over the improper transport of a pistol. Christopher was having problems at the time and should have removed the slide and put it in the boot. If he had done that it would not have been a problem. Christopher lost his firearms licence and also got help. His son is not a bad person. Mr Wilson said that he does not associate with any criminals.

75. Mr Wilson said that the Commissioner’s case was comprised of “smoke and haze and mud and fairy tales”. It involved “mass misinformation” and “twisting of the facts”.

Evidence

76. Mr Wilson gave lengthy oral evidence and was cross-examined for some time at hearing. The parties also relied on the documentary evidence.

77. At times Mr Wilson presented what were legal submissions while giving his evidence. In order to assist him to present his case, I permitted his evidence and submissions to be intermingled in the giving of his oral evidence, given he was self-represented.

Genuine reason and interest in firearms

78. Mr Wilson said that he had been a member of a pistol club for three decades. He said he was still a financial member of the club. He also needed a firearm for shooting pest animals, such as rabbits and foxes on properties belonging to his family or other farmers.

79. Mr Wilson said he became interested in firearms when in 1984 there was a change in the law and his grandmother had to get a firearms licence. His father had experience with weapons in the military. Mr Wilson started target shooting with rifles about the age of 18.

80. Mr Wilson said he became interested in skeet shooting with a shotgun and had engaged in metallic silhouette shooting, which involves shooting at a metal plate shaped as an animal in order to knock it over.

81. Mr Wilson said that he did not shoot as often following the reinstatement of his licence after the 2015 Appeal Panel decision. He has used his father’s firearms and does not have any firearms in his own name.

Circumstances giving rise to the 2012 charge – pistol magazines

82. It is not in dispute that on 19 September 2012 Police executed a search warrant at Mr Wilson’s home and found six Glock magazines with capacity of more than 10 rounds.

83. According to the COPS Event report, Police alleged that Mr Wilson had purchased a “large number of firearms parts” and that the purchase would enable Mr Wilson to manufacture up to 20 Glock pistols. Police also said that Mr Wilson had been a club armourer in the past and at the time had only two Glock pistols. Police formed the view that Mr Wilson intended to manufacture Glock pistols.

84. Mr Wilson declined a formal Police interview, as is his right, but he is recorded in the COPS report to have stated he thought that as long as the magazines were not loaded or in a firearm, they were able to be lawfully possessed. The COPS record also stated that Mr Wilson said he was not aware that the magazines were prohibited weapons.

85. The COPS record notes that when Mr Wilson attended the police station to be charged, Police searched him, and allegedly found Mr Wilson had a device on which he was recording his conversation with Police.

86. At the administrative review hearing, Mr Wilson agreed he purchased a large quantity of firearm parts. He spent $25,000 on firearms parts and components. The more he bought, the cheaper they were.

87. Mr Wilson said that he bought the parts to do metallic silhouette shooting. He planned to have some firearms made by a licenced dealer and to have enough spare parts to last himself a lifetime. He said he looked to make about six pistols to use in metallic silhouette shooting and to keep the rest as spare parts. He needed to purchase frames for the firearms to be made. Mr Wilson rejected any suggestion that he wanted to use the large number of parts for any criminal activities.

82. Mr Wilson agreed that he had six pistol magazines which each held more than 10 rounds, consisting of two 15-round magazines, two 17-round magazines and two 30-round magazines. He agreed that the 30-round magazines were not standard Glock magazines, but they were extended magazines.

83. Mr Wilson said he bought the extended magazines as a collector’s item, describing them as “something different”. He said he did not know that they were prohibited weapons and was unaware of the relevant regulation to that effect. He explained that he bought the magazines openly at a gun show.

84. Mr Wilson entered a guilty plea to the charge of ‘possess or use a prohibited weapon without permit’. He said that he had possessed the magazines, but did not use them or plan to use them.

2015 Appeal Panel decision, licence reissue and the ensuing five years

91. Mr Wilson said the Member conducting the administrative review of the subsequent 2014 licence refusal decision believed there was a breach of the requirements for safe storage. Mr Wilson said that on appeal, he methodically corrected the Commissioner’s assertions and was successful before the Appeal Panel.

92. Mr Wilson said that in the five years that followed the granting of his licence after that appeal, there were no issues or problems.

The evidence about various cars

93. Mr Madden had asked Mr Wilson about various cars. Mr Wilson agreed that he had a white Ford XR6 turbo, a Maroon Nissan Patrol and a blue Ford Falcon. The white XR6 was registered to Scott Wilson and the blue Ford Falcon was registered in Mr Wilson’s name. The Maroon Nissan Patrol was the one involved in the accident on 22 May 2018 (which is discussed below).

The 22 May 2018 car accident

94. It is not in dispute that on 22 May 2018 a vehicle owned by Mr Wilson was involved in a collision with another car. The 2018 Charges arose from this incident.

95. According to the Police COPS Event record, a red Nissan Patrol registered to Mr Wilson failed to stop at a give way sign and collided with another vehicle. Police alleged that the driver of the Nissan Patrol did not stop “and render assistance or exchange particulars” and that following the accident the driver was “struggling to keep the vehicle on the road due to the impact of the collision”. The driver of the other vehicle was reported to have a right hip injury and he was conveyed to hospital and his car was towed home. Police noted that the injuries sustained by the other driver were “not considered to be significant or life threatening”.

96. According to the COPS record, following the accident Police located the Nissan Patrol and Mr Wilson was in the driver seat. The record states that Mr Wilson “claimed to be injured, suffering chest pains”. Mr Wilson’s son, Scott Wilson, said he had an injury to his left arm or shoulder. Both Mr Wilson and Scott Wilson were taken to hospital.

97. The COPS entry stated that while Police waited for a tow truck for the Nissan Patrol, they were approached by a witness who told them that Mr Wilson was not the driver when the Nissan Patrol came to a stop. Rather, a young male was driving at that time. The witness said that prior to Police arriving “a blue FordSedan [sic] arrived and items were removed from the Patrol and placed into the Forbes [sic] vehicle. The driver of the Patrol then drove off in the blue sedan” and Mr Wilson sat in the driver’s seat of the Nissan Patrol.

98. At this point I should note that, Mr Wilson objects to any reliance on the COPS Event report because Senior Constable Stephen’s evidence in the criminal proceedings was that the COPS entry was completed after 22 May 2018 and not on 22 May 2018. I reject Mr Wilson’s argument that the information cannot therefore be reliable or taken into account in these proceedings despite the fact it was completed after 22 May 2018.

99. The Respondent’s case is that Mr Wilson was involved in what the Commissioner has described as “substitute driver conduct”. The Respondent asserts that Mr Wilson’s son, Christopher Wilson, was the driver of the car when the accident occurred. The Respondent alleges that following the accident, Mr Wilson received a call from his other son, Scott Wilson, who was a passenger in the car. It is alleged that Mr Wilson attended the scene, assisted Christopher Wilson to remove “contraband” from the vehicle and that Mr Wilson then placed himself in the driver seat. The Respondent alleged that Christopher Wilson left the scene prior to the arrival of Police.

100. Mr Wilson agreed that he told Police that he was the driver of the vehicle. His son, Scott, was the passenger in the vehicle.

101. Mr Wilson said he continued driving after the accident as Scott was screaming about his arm. He said he was more concerned about Scott and he was going to the hospital. He said he drove about 900m further after the accident. He said he recalled he had to pull over as he had pain in his chest and trouble breathing. Mr Wilson said that in hindsight, it would have been smarter to stop. He could not think properly as Scott was screaming in pain.

102. Mr Wilson said that there were two witnesses who were present when the accident occurred. He said Police did not come back to speak to the witnesses again. He happened to bump into these witnesses in November 2019. One of the witnesses identified him as the driver of the car in the accident and gave evidence to this effect at the criminal trial.

103. Mr Wilson contended that there was no proof that he had swapped drivers. Both of the 2018 Charges that went to trial were ultimately dismissed. Mr Wilson said that the only witness the Crown had to prove those allegations was the evidence of a Mr Gabell. He said Mr Gabell admitted that he had bipolar disorder and other mental problems. He said that Mr Gabell did not in fact see what Police claimed he did. Rather Police had contaminated his evidence. Mr Gabell was unable to see what occurred because there was a NSW State Emergency Service (SES) truck blocking the view from his loungeroom window and he could not see much. Mr Gabell admitted some things he told Police were deleted from his statement and Police added in certain terms. Mr Gabell also was incorrect about items being removed from the Nissan Patrol. In fact, things were removed by Police and these were some bolt cutters wrapped in a towel.

104. Mr Wilson argued that Police had “groomed” their witness. He said that Mr Gabell had bipolar disorder and was easily misled. He said that Mr Gabell’s account “all came apart” and he never saw “a fraction” of what was claimed by Police. He argued that Police had no evidence and relied on “pure suspicion” only.

105. In cross-examination, Mr Madden squarely put to Mr Wilson the following suggestions:

106. Mr Wilson did not give a true account to Police about who was the driver at the time of the accident.

107. It was in fact Chris Wilson who was the driver.

108. Scott Wilson called Mr Wilson and Mr Wilson arrived in a blue Ford Falcon.

109. Long items wrapped in a blanket were removed from the Nissan Patrol and put into the Ford Falcon.

110. Chris Wilson left in the Ford Falcon and Mr Wilson sat in the driver seat of the Nissan Patrol.

111. Mr Wilson sought to take the blame for the accident instead of Chris Wilson.

112. Mr Wilson denied all these suggestions and explained that he had shown the Police evidence was incorrect at the criminal trial when Police claimed that Scott Wilson rang Mr Wilson’s phone number.

113. The Statement of Senior Constable Stephenson prepared for the criminal trial suggested that the accident occurred at 9:20am and at 9:26am Mr Wilson received a call from Scott Wilson. Mr Wilson said that this was incorrect and the mobile number the source of the call was one that Chris Wilson was using. He referred to evidence that Police recorded a different number for Scott Wilson on 25 March 2018 in a record of a triple 0 call made on that date.

114. Mr Wilson said the police officer admitted there was a text message from Christopher to Mr Wilson at the time of the accident which indicated Christopher was loading road base onto a truck some 20 kilometres away from where the accident occurred. Mr Wilson said there was an independent witness to the loading of the truck and a docket was signed after loading the truck. Mr Wilson argued that it was physically impossible for Christopher Wilson to be the driver in the accident.

115. I note from the subscriber check relied on by Police in the criminal trial that the mobile phone used for the 9:26am call was owned by a concrete company that Mr Wilson and his sons operate. The phone was in the name of Mr Wilson’s father.

116. Mr Madden asked Mr Wilson about calls in the phone call records for Mr Wilson’s phone which show that his son, Scott Wilson, called Mr Wilson at 9:21am the same day for 147 seconds. Mr Wilson said that he did not recall that. Mr Madden suggested that Scott called and they spoke and Scott told Mr Wilson there had been a car accident. Mr Wilson denied that was the case.

117. Mr Madden asked Mr Wilson for an explanation as to why Scott Wilson had called him for more than two minutes if he was sitting in the same vehicle at the time. Mr Wilson said that it could be that Scott accidentally called that number. He could have been playing with his phone.

118. Mr Wilson said he believed that Police charged him because they had a “vendetta” against him. He expressed the view that Police had “set [him] up” and he alleged there was police “corruption”. He said he did not trust most police, although some were honest.

119. Mr Wilson also alleged that on 7 June 2018 police officers ended the police interview recording and proceeded to call him a low life and to suggest he was lying and taking the blame for Christopher. He alleged that police officers said his son had left people involved in the car accident for dead and that Mr Wilson and his family would the subject of police attention for anything including traffic tickets.

Query raised by the Tribunal about tender of transcripts from the trial

120. On 30 January 2024 after Mr Wilson’s evidence about why he said Mr Gabell’s evidence was not reliable, I asked Mr Wilson why he had not tendered the transcripts of the criminal trial. Mr Wilson responded that he did not do so because the Tribunal would be “flooded with material”.

121. I will return to this when dealing with the costs application.

2021 renewal application

122. Mr Wilson said he applied to renew his firearms licence and there were delays. He was concerned the Police were deliberately sitting on the renewal application.

123. Mr Wilson said he applied for a permit to acquire a handgun and two weeks after he received the letter notifying him his firearms licence application had been refused.

Relationship with Christopher and 2018 report of stolen vehicle

12 September 2016 – Christopher pulled over by Police

124. It is not in dispute that on 12 September 2016 Christopher Wilson was driving the white Ford Falcon XR6 registered to Scott Wilson. Police pulled Christopher over for speeding.

125. The Police COPS record states that Police conducted roadside testing and Christopher tested positive for methylamphetamine. Police placed Christopher under arrest and told him they would conduct a search of the vehicle. Police allege in the Event record that Christopher told Police there was a pistol registered to him under the driver’s seat. Chrstopher said he had taken the pistol to Sydney in case he located a pistol club.

126. On searching the vehicle Police found an unloaded 9mm Glock pistol, in a Cordura holster. Police also found a Glock pistol magazine containing 7 rounds of 9mm ammunition, wedged beside the passenger seat and the centre console. Also found in the vehicle was a further two Glock pistol magazines containing 10 rounds each and two .22 calibre rounds of ammunition in a locked grey metal case in a rear passenger footwell. Police also record finding three pills they allege were ecstasy or MDMA, a single .22 calibre round in a cooler bag and various items of drug paraphernalia.

127. Under questioning, Mr Wilson agreed that Christopher had permission to use the car on 12 September 2016.

The 19 February 2018 police pursuit

128. It is not in dispute that the same white Ford XR6 vehicle involved in the 12 September 2016 incident was involved in a high-speed police pursuit on 19 February 2018.

129. The COPS report states that the vehicle was observed speeding and Police commenced a high-speed pursuit, ending it due to safety concerns. Police later found the vehicle and located two live .22 rounds in the centre console of the car, and a large hunting knife and hammer jammed between the seats.

130. That same day Police made enquiries with Scott Wilson about the whereabouts of Christopher Wilson and Mr Wilson. Scott told Police that he did not know where Christopher was and that Mr Wilson was out of town and not able to be contacted.

131. That same afternoon Mr Wilson spoke to Police and reported that his house had been broken into and his car key for the vehicle had been stolen. Mr Wilson is recorded as attending the police station on 2 March 2018 to report the vehicle as stolen.

132. Mr Wilson said that someone forced the bedroom window and took his spare keys to take the car. He said he had no reason to disbelieve Christopher when he said he wasn’t the driver. The two live .22 rounds in the centre console of the car when it was found on 19 February 2018 must have been put there by whoever stole the car. Mr Wilson denied leaving any ammunition in that car and said that he never used the car for shooting.

133. Mr Wilson said that the vehicle was registered in Scott Wilson’s name. This was so because Scott received free registration because he is on a disability pension.

134. Police COPS records stated that on 22 February 2018, Christopher Wilson attended the police station and denied being the driver of the vehicle. Police record a “suspicion” that the driver may have been Chris Wilson but recommended that the investigation be closed due to lack of proof.

Domestic circumstances

135. Mr Wilson said that he has two addresses, the second one being his father’s place. Mr Wilson said that Christopher frequents the address at which Mr Wilson lives. He said Christopher “mainly lives there” and that he thinks it is his “main address”. Both Scott and Christopher work at the quarry, which is a family business.

Mr Wilson’s traffic history including the 26 August 2021 infringement notice and suspension of driver’s licence

136. Mr Wilson’s traffic history can be summarised as follows:

1. 1996 and 1998: Cautions given for ‘not wear seat belt’.

2. 2005: Section 10 dismissal given for ‘exceed speed limit by more than 15 km/h but not more than 30 km/h’.

3. 2007: ‘Disobey left turn/right turn/no turns sign at intersection’.

4. 2008: ‘Driver not wearing seatbelt’.

5. 2009: ‘Exceed speed limit by more than 15 km/h but not more than 30 km/h and demerit point warning letter sent.

6. 2014: ‘Exceed speed limit by more than 20 km/h but not more than 30 km/h’.

137. There is a further traffic infringement in 2021. Mr Wilson’s driver’s licence was suspended by Police for ‘exceed speed limit by more than 45 km/h’. Mr Wilson succeeded in having the conviction and fine annulled on 21 July 2022. It appears that matter was then heard again in the Local Court on 21 June 2023 and a $2,500 fine imposed. According to Mr Wilson’s written statement, dated 17 July 2023, he has appealed this matter to the District Court.

138. In a written statement, dated 6 September 2023, Mr Wilson said that on 26 August 2021 Police alleged he was driving at 153 kilometres per hour and they suspended his driver’s licence until 25 February 2022. Mr Wilson said he subpoenaed the calibration reports for the radar unit, the police manual on the radar unit and the Police in-car video. He alleged that the in-car video had been “altered” and corruptly tampered with. He also alleged that the wrong police car had been identified in two police officer statements used at court. He alleged that this was a “corrupt action” and suggested that Police had swapped these vehicles “to cover some sort of problem with the radar in the original vehicle”…”or some other sinister/corrupt reason”.

2022 charge - driving while licence cancelled

139. According to the Police Facts Sheet, Mr Wilson was subject to a driver licence disqualification period which ended on 6 May 2022. Police alleged that Mr Wilson was driving on 29 May 2022 while his licence was cancelled because he did not attend the Roads and Maritime Services Centre (RMS) to have his driver licence reinstated.

140. Mr Wilson said that on 29 May 2022 a Police officer drove past, did a U-turn and pulled him over and conducted a driver licence check. The officer told him his driver’s licence was suspended.

141. At hearing, Mr Wilson agreed that his licence was cancelled. He explained that he had been found guilty in his absence and convicted and sentenced to a six month suspension of his driver licence. Mr Wilson filed an annulment application. When the matter went back to court the Magistrate accepted his case and the charge was dismissed. This is confirmed by the Criminal History from the Respondent, which shows the charge was dismissed on 10 February 2023.

Other information

Mr Wilson’s evidence about his assets

142. Mr Wilson told the hearing that he is a “man of straw” and has no assets. He does not draw an income from the family business. He receives a Centrelink pension. He is a Local Councillor but the income he received from this is held in a solicitor’s trust account. I issued a section 128 Certificate over answers given about the moneys held in this account, refer to [52] above.

143. Mr Wilson said that he does not own a fridge or TV. The property he lives in is owned by a company controlled by another family member. He drives different vehicles. He bought one car in his name but he is no longer the owner. He thought the registered owner is now Scott Wilson.

Mr Wilson’s submissions about the confidential material and about alleged police harassment

144. Mr Wilson said any suggestion contained in the confidential material that he is involved in any criminal conduct is false and part of what he alleged was a campaign of “intimidation and harassment and threats” waged against him by Police. Two people known to him had acted as Police informants and one was responsible for damage to Mr Wilson’s property, including spray painting graffiti onto his truck cab. He suspected this person is a “venomous provoctor [sic]” and was “making false claims to cause trouble”. He argued that information received from police informants is unreliable due to an informant’s tendency to lie. He also argued that without knowing the identity of source of information, there is no way to determine whether the information is true.

145. Mr Wilson’s other allegations about Police conduct towards him included:

146. Impounding a vehicle, not conducting any forensic testing and not returning the vehicle for more than a year.

147. Tampering with Police In Car Video (ICV) concerning an incident on 26 August 2021 in which Police alleged Mr Wilson was speeding.

148. Mr Wilson said that “…it is easy for the police to generate more lies, and false claims, and just plant it on the COP”s [sic] computer records, They only need a willing informant, or even a imaginary one to generate fairytales, After all it is all kept a big secret to prying eyes…”.

149. Mr Wilson argued that after being pulled over for breath testing by Senior Constable Matters on 9 March 2018, the Senior Constable engaged him in a discussion about the events of 19 February 2018. Mr Wilson alleged that Senior Constable Matters suggested to him it was Christopher driving the car during the police pursuit on 19 February 2018. Mr Matters then said both he and another officer involved were “not going away” and that Mr Wilson’s “gut tell’s [him]” it was Christopher driving the car.

150. Mr Wilson alleged that Senior Constable Matters said if Christopher did not hand himself in to Police, Mr Wilson would be charged for not disclosing the identity of the driver. Mr Wilson also alleged that Senior Constable Matters said that because Mr Wilson’s vehicle had been in a Police pursuit, Police could seize the vehicle for three months and that would cost Mr Wilson $21 per day. He alleged Senior Constable Matters said he had spoken to Chief Inspector Rayner about that. He alleged Mr Matters said there would also be a fee to tow the vehicle and this could cost him $2,500 to get his car out of the impound.

144. Mr Wilson alleges that Senior Constable Matters said that if Christopher turned himself in Mr Wilson would get his car back the same week or even the next day. He alleged that the Senior Constable said Mr Wilson could have his car back within two days and it would save him thousands of dollars if Christopher handed himself in. Otherwise, the car would be in the Police holding yard for three to four months and Police could forfeit it to the Crown and Mr Wilson would lose his car. He alleged that Senior Constable Matters suggested if Christopher handed himself in before lunch he would be out by 1 or 2 pm and Mr Wilson might be able to have his car back the next day. Mr Wilson also alleges that the Senior Constable said Christopher would not have to worry about Police following him around. Mr Wilson alleges that Senior Constable urged him to have a father son talk to get Christopher to hand himself in.

145. The conclusions Mr Wilson came to about this conversation were that there was a threat of continual police harassment and also that there “may have been an offer to pay a bribe”.

146. Mr Wilson said that what occurred was that car was impounded for almost a year.

Mr Wilson’s evidence about treatment with anti-depressants

154. Mr Wilson said he had been on anti-depressant medication since late 2018 and he would stay on the medication a bit longer. When asked why he had not disclosed any treatment for mental disorder or illness in his 2021 firearms licence renewal form, Mr Wilson said that he did not consider he had answered incorrectly. He was feeling depressed about what was happening to him and did not consider himself to have a mental disorder.

Private hearings – Respondent’s evidence and submissions

155. I conducted two private sessions, one on 21 March 2024 and one on 7 May 2024, in order to deal with the two bundles of material which were the subject of orders restricting disclosure and prohibiting publication.

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Submissions made by the parties - open hearing

The parties’ submissions – form and timing

187. Both parties provided detailed written submissions.

188. Mr Wilson had two opportunities to give oral closing submissions. He did so at the conclusion of his case on 30 January 2024. Mr Wilson had a further opportunity to provide oral closing submissions after the giving of the Respondent’s oral closing submissions on 30 April 2024, following the reopening of the evidence.

189. Ample time was allowed to the parties on 30 April 2024 to give their closing addresses, these oral submissions taking almost the entire hearing day.

The parties’ submissions

The 2012 charge concerning six pistol magazines

190. Mr Wilson said the Respondent agreed in the 2015 NCAT administrative review proceedings that there was no evidence he had engaged in criminal activity or intended to manufacture firearms illegally or had any contact with criminal organisations.

191. Mr Wilson said his barrister, Mr Waterstreet, submitted as is recorded in the transcript of the 10 May 2013 Local Court hearing, that the purchase of the pistol magazines occurred in such a way that showed there was no nefarious purpose for buying them (refer to page 132 of the section 58 documents). Mr Wilson said the prosecution agreed with that statement. Mr Wilson submitted that he was not found guilty. In fact, what occurred was the charge was dismissed under section 10.

192. Mr Madden argued that in the present administrative review, the Tribunal is not bound by the findings of the 2015 Appeal Panel decision. He said that there is additional material in this proceeding that casts all the material in a different light.

193. Mr Madden said it may be open to the Tribunal on the evidence to make positive factual findings even if they were not made in the criminal proceedings because the criminal standard of proof is beyond reasonable doubt. He said the Tribunal could also take matters into account where positive factual findings cannot be reached.

194. Mr Madden said despite the section 10 dismissal, it remains the case that Mr Wilson has a history of weapon-related conduct as a result of the possession of the pistol magazines.

195. Mr Wilson’s position was that he did not know that the Glock magazines were prohibited weapons. Mr Madden submitted that the prohibition had been in place for nine years when Mr Wilson was charged. He suggested an alternative explanation was that Mr Wilson was in fact aware the magazines were prohibited but disregarded that fact. He argued that Mr Wilson unwilling or incapable of complying with the firearms legislation.

Christopher pulled over by Police in 2016

196. Mr Wilson referred to the Police interaction with Christopher on 12 September 2016 when Christopher was found to have a pistol under the driver’s seat of the vehicle he was driving. Mr Wilson said Christopher was “stupid” to have transported the pistol in such a way. He argued that Christopher was experiencing personal problems at the time and pointed out that the firearm discovered by Police was not loaded.

197. Mr Wilson said Christopher’s firearms licence was suspended and he no longer had a firearms licence. He said this incident led to the only time his son had ever been to court.

198. Mr Wilson said that when he got his firearms licence back following the 2015 Appeal Panel decision, there were firearms registered his father. The safe storage address continued to be at his father’s place as it always had been. Mr Wilson said he does not store firearms at his own address. Christopher has no key to Mr Wilson’s father’s house and there were two safes there. The first safe was not opened by a key but rather by dials and the combinations known to Mr Wilson and his father. Keys to the second safe are locked in the first safe. Police had inspected the safe storage arrangements and were satisfied with them. Mr Wilson said Christopher has no access to the locked room containing the safes.

199. Mr Madden said that Christopher was found in 2016 driving with an unsecured firearm under the influence of ice and with easy access to loaded magazines. He submitted it was difficult to imagine a more serious example of irresponsible control over firearms.

The 19 February 2018 police pursuit and Mr Wilson’s stolen vehicle report

200. Mr Wilson argued that Police did not know who the driver was in the police pursuit. He referred to the transcript he had prepared of what was said on 9 March 2018 when he was pulled over by Senior Constable Matters. Mr Wilson suggested this was evidence that Police only held suspicions that Christopher was the driver but had no evidence whatsoever. He said a door at his home had been forced open but Police never came to his house to investigate the break in.

201. Mr Madden argued that Mr Wilson made the 2018 stolen vehicle report to prevent Christopher from coming to the attention of Police. He said either Mr Wilson knew or wilfully ignored the fact that Christopher was the driver in the police pursuit. Mr Wilson said Christopher told him he was not the driver, but conceded under questioning that there was a possibility Christopher was.

202. Mr Madden said that the car was found with two live rounds in the console and a large hunting knife and hammer jammed between the seats. He sought to draw parallels with the incident on 12 September 2016 when Christopher was pulled over driving the same car two years prior and when Police found a Glock pistol magazine containing seven rounds of ammunition wedged between the passenger seat and the centre console, which Mr Madden said was stored in the same manner as the items in later incident.

203. Mr Madden said that the Tribunal could reach a factual finding on the balance of probabilities that Christopher was the driver in the police pursuit. He said it matters little if Mr Wilson was aware Christopher had taken the car, given Christopher’s character and Mr Wilson conceded in his evidence that Christopher would use that vehicle. Mr Madden submitted that Christopher had a demonstrated history of making use of that vehicle.

204. Mr Madden also made the submission that Mr Wilson did not make a genuine attempt to answer questions put to him.

The 22 May 2018 car accident

205. Mr Wilson submitted that the Local Court Magistrate found that all the Police had was suspicion about what had occurred on 22 May 2018. He alleged that the police officer in charge made false written statements to the Court. He said that the witness, Mr Gabell, was groomed by Police and lived with a mental illness. Mr Gabell gave evidence in the trial that Police had deleted some information and put in other information into his witness statement. Mr Gabell had not observed any swapping of drivers. The two other witnesses were spoken to by Police on the day of the accident but Police never returned to speak with them again. He said one of these witnesses was able to identify him as the driver of the vehicle in the Local Court proceedings.

206. Mr Wilson said that some of the COPS entry for the 22 May 2018 incident was not entered on that date, but rather later. He submitted that these records had been altered, backdated or changed.

207. Mr Madden referred to the transcript of Magistrate McCarron’s judgment on 20 February 2023 in relation to the charges that went to trial arising from Mr Wilson’s alleged conduct following the car accident. The Magistrate decided that the prosecution had not proved its case in circumstances where the Magistrate could not be satisfied about the reliability and accuracy of the witness evidence, including the evidence of Mr Gabell. She then stated at page 8:

My inability to reject the evidence of the accused even though I do not positively accept it, in all respects suspicion, even grave suspicion, is no substitute for proof beyond reasonable doubt.

208. Mr Madden submitted there was a large amount of primary evidence about this incident, including the transcript from the Local Court case. He said Mr Wilson’s explanation for what occurred was a widespread and ongoing Police conspiracy against him. This would necessarily involve Police from two towns and the disproportionate use of Police resources to harass Mr Wilson. Mr Wilson also alleged Police had falsified evidence in respect of the 26 August 2021 speeding infringement notice and suspension of his licence. He referred to Mr Wilson’s suggestion that the Commissioner was motivated by sour grapes over his successful 2015 Appeal Panel case.

209. Mr Madden suggested that Mr Wilson was clearly lying to the Tribunal about his involvement in what the Respondent has referred to as the 2018 substitute driver conduct. He referred to the COPS Event entry that said that Mr Gabell approached Police while they waited for a tow truck to arrive. He described a blue Ford sedan arriving. Mr Wilson had a car of the same colour, make and model and he received a ticket when driving the same vehicle. I note at this point that perhaps Mr Madden was referring to the COPS record on 3 January 2009 which stated that Mr Wilson was issued with a traffic infringement notice for speeding and he was noted to be driving a blue 2001 Ford Falcon sedan.

210. Mr Madden said that the Tribunal could reach a positive finding that Mr Wilson attended the scene of the accident in order to remove contraband and given Christopher Wilson’s history of transporting firearms unsafely there is a possibility that the items removed were firearms. He said that the phone records corroborate the offence.

211. Mr Madden submitted that the alleged substitute driver conduct showed Mr Wilson to be dishonest. He contended that Mr Wilson had lied to Police and given false evidence before the Tribunal. He said Mr Wilson’s evidence is therefore unreliable and that his lack of honesty goes to whether he is a fit and proper person to be issued with a firearms licence.

212. Mr Madden referred the Tribunal to the transcript of the evidence given at the criminal trial by a Mr Tomlinson about the loading of a truck. Mr Wilson’s case was that Christopher was loading the truck and therefore could not have been the driver involved in the car accident. Mr Tomlinson said that he made three trips to the quarry on 22 May 2018 and that three dockets showing the times 9:22am, 10:45am and 11:58am were copies from an invoice book. He said he signed those invoices on 22 May 2018. He disputed the prosecutor’s suggestion that the dockets were fake. He said he recalled speaking with Christopher Wilson when he was there picking up the first load that morning.

213. Mr Tomlinson said that Mr Wilson had given the invoices to him when Mr Wilson found he had to go to court. He presumed that Mr Wilson had got copies from his employer Mr Nash, the purchaser of the road base.

214. Mr Madden submitted that the copies of invoices Mr Tomlinson had were not a copy of the invoices provided to him when he loaded up the truck, which were then given to Mr Nash. Mr Madden said Mr Tomlinson had a copy of a document given to him by Mr Wilson and there was not a reliable chain of custody.

Mr Wilson’s traffic record and 2022 driving charge

215. Mr Wilson submitted given the long distances he drives his driving record is not that bad. He clarified that paragraphs [65a.] and [65b.] of the Respondent’s written submissions refer to the same traffic infringement for driving more than 15 kilometres per hour but less than 30 kilometres per hour over the speed limit. He observed that the charge was ultimately dismissed in the Local Court. I note at this point from Mr Wilson’s traffic record report that this charge was found proven but dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999.

216. Mr Wilson provided explanations for the other traffic infringements set out at [65c.] - [65i.] of the Respondent’s written submissions including:

1. He was driving at night and did not see a road sign just put up that day by the council.

2. He was issued with an infringement failing to wear a seat belt because he got into a truck and it rolled a foot or two.

3. He was booked for driving more than 15 kilometres per hour over the speed limit when he was in fact slowing down to the 80 kilometre speed limit and he was not supposed to be booked.

4. He appealed the 2021 infringement for driving more than 45 kilometres over the speed limit to the District Court. Mr Wilson suggested that the police car referred to by Senior Constable Bolam in her statement dated 17 February 2022 as being involved in the incident cannot be correct as the number plate for the police vehicle was for a 2022 model and the incident occurred in 2021. He also suggested that Police had spliced together the in-car video footage and alleged he could prove that Police had corruptly modified this evidence.

217. Mr Wilson submitted that the 2022 ‘drive while licence cancelled’ charge was dismissed because he proved he had renewed his licence twice.

Mr Wilson’s mental health

218. Mr Madden said that Mr Wilson had been prescribed anti-depressant medication for depression. He submitted that Mr Wilson had not disclosed he had been treated for mental illness in the past twelve months on the 21 March 2021 firearms licence renewal form. Mr Madden argued that the issue of Mr Wilson’s mental health had been raised and could not be ignored. He also suggested that Mr Wilson might have an undiagnosed mental illness as, in Mr Madden’s submission, Mr Wilson held delusional beliefs about police officers being engaged in a conspiracy against him.

219. Mr Wilson argued that his doctor had told him that it was time to get off the anti-depressants and he had been weaned off them. The letter from Mr Wilson’s general practitioner, Dr Oreb, dated 30 January 2024, confirms Dr Oreb’s advice was that Mr Wilson could slowly stop his anti-depressants due to significant improvement in his mental state.

Scott Wilson

220. Mr Wilson agreed that Scott Wilson has a disability. He referred to the COPS Event record dated 15 December 2018 (found at Tab 24 of the Respondent’s Further section 58 documents) and said that Sam Ringk had been a false friend to Scott. Police alleged that Scott was being used to collect drugs for Sam Ringk but no drugs were found when Police searched Scott. Mr Wilson said he had persuaded Scott not to have anything further to do with Sam Ringk. He argued that Police had harassed Scott and stopped and searched him many times.

221. I note at this point that in the Event report dated 15 December 2018 Scott Wilson is alleged to have made an admission that he was given $250 from the other boys in the vehicle to “go pick up drugs from [a named individual].”

222. Mr Madden said that Scott Wilson lives with Mr Wilson and the reference to the interaction with Sam Ringk is exactly the kind of risk that concerns the Commissioner.

Confidential material

223. Mr Wilson submitted that any information obtained from registered police informants should not be accepted. He said these informants should be in prison but they make up fairy stories and get paid for it.

224. Mr Wilson said that he was not a criminal and did not associate with criminals. He said that if Police did have actual evidence, they would have charged him.

Overarching submissions

225. Mr Wilson’s case is that the charges laid against him in 2012, 2018 and 2022 have all been dismissed. The only thing Police had against him was old evidence that had been considered by the Appeal Panel in 2015 when he was then granted the licence. He submitted that he had an unblemished record from 2015 to 2022.

226. Mr Wilson argued that Police now seek to introduce “secret evidence” alleging his involvement in criminal activity but he has never been involved in criminal activity. He questioned what connection any information about his sons has to the question of whether he himself is a threat to public safety.

227. Mr Wilson suggested Police “have conducted a long term continuous campaign of intimidation and threats and harassment” which included the bringing of the charges against him. He alleged Police had given “incorrect or outright false evidence” at court “in an attempt to gain a conviction” and had “misinformed” the court.

228. Mr Wilson also referred to the comments of his Honour Justice Ierace in the Supreme Court transcript dated 13 February 2024. Justice Ierace asked whether the recording of what is alleged to be a conversation between the two interviewing officers and Mr Wilson after the tape recorder was turned off had been referred to the Police Integrity Commission.

229. Mr Wilson argued that there was no evidence that he was a threat to public safety or to the peace. He said there was nothing from his domestic circumstances that suggested he should not be granted a firearms licence. He said that the Tribunal should consider the evidence and not engage in “secret crystal ball gazing” or take into account “assumptions and fairy tales” to determine whether the issue of a firearms licence to Mr Wilson would be contrary to the public interest. Mr Wilson suggested that the “secret evidence is rubbish” and that police informants would not give truthful evidence.

230. Mr Madden argued that Mr Wilson held a degree of animus towards Police. He suggested that Mr Wilson’s reliance on the idea that Police are corrupt reduces the reliability of his evidence as it cannot be the case that there is a conspiracy involving a large number of police. He also highlighted the fact that Mr Wilson had made covert recordings of police officers and suggested that the Tribunal would find that Mr Wilson would not answer Police questions or comply with Police directions if he thought he wasn’t doing anything wrong. He said Mr Wilson would show no deference to the firearms licensing scheme or the efforts made by police to ensure his compliance with that scheme. Mr Madden argued that the Tribunal would hold serious concerns about Mr Wilson’s level of co-operation with Police.

321. Considerations can include public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16.

322. There is a discretion in section 11(7) as to whether, in this case, I affirm the Commissioner’s decision to refuse Mr Wilson a firearms licence if I consider that the issue of the licence would be contrary to the public interest. In determining how to exercise that discretion, I considered what result might best achieve the promotion of the principles and objects of the Firearms Act 1996 (refer to Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23]), including the promotion of safe and responsible storage and use of firearms.

323. Mr Wilson’s main interest in obtaining a firearms licence is so he can participate in target shooting and he said he also needed a firearm to shoot pest animals on properties belonging to his family or other farmers.

324. The pursuit of a hobby or interest activity is not itself something that provides any broader benefit to the public and so must be considered a private interest. As such, it cannot outweigh the public interest including the public’s right to safety: Kammoun v Commissioner of Police, NSW Police Force [2021] NSWCATAD 273 at [97].

325. As stated in Dale v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 134, the firearms licensing regime is about protecting the public and identifying the possible risks to the public and then making decisions that are consistent with the need to reduce any risks to a minimum. In the present case, the overriding need is to ensure public safety (section 3(1)(a) of the Firearms Act 1996) and this prevails over the interest Mr Wilson has in obtaining a firearms licence.

326. The facts I found in this case weighed in favour of the refusal of Mr Wilson’s application on public interest grounds. It cannot be in the public interest for Mr Wilson to be issued with a firearms licence in circumstances where Mr Wilson was involved in an incident where he lied to Police about swapping drivers following the car accident on 22 May 2018 car accident and where the information at [308]-[310] is considered. To grant a licence to Mr Wilson in those circumstances would be contrary to the overriding need to ensure public safety described in the underlying principles of the Firearms Act 1996.

Costs application

327. On 21 March 2024 I set a procedural timetable for the making of the costs application and filing of evidence and submissions about any such application. I heard the parties on the issue of costs on 7 May 2024.

328. The Commissioner made a costs application on 16 April 2024 for the Commissioner’s costs of the half day hearing on 21 March 2024, except for the confidential session conducted that day, as well as the costs of preparation for that appearance. A fixed amount of $1,275 was sought.

Relevant legislation about the granting of costs

329. An application for costs is made under section 60 of the Civil and Administrative Tribunal Act 2013, which reads:

(1)  Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2)  The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3)  In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

(a)  whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b)  whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c)  the relative 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,

(d)  the nature and complexity of the proceedings,

(e)  whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g)  any other matter that the Tribunal considers relevant.

(4)  If costs are to be awarded by the Tribunal, the Tribunal may—

(a)  determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(5)  In this section—

costs includes—

(a)  the costs of, or incidental to, proceedings in the Tribunal, and

(b)  the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

330. The effect of this provision is that ordinarily the parties are to bear their own costs in this proceeding. It is only where the Tribunal is satisfied there are special circumstances warranting an award of costs, the discretion to make a costs order is enlivened. The question of whether there are special circumstances warranting the award of costs may involve consideration of the section 60(3) factors as set out above. This is not an exclusive list, given paragraph (g), nor are those section 60(3) factors mandatory considerations, given the wording of “may have regard to” in the subsection.

Parties evidence and submissions on costs

The Commissioner

331. The Commissioner argued that Mr Wilson served 345 pages of material on the Respondent on 19 March 2024, six weeks after the evidence had closed and two days before the final hearing date set for the completion of the hearing.

332. The basis of the Commissioner’s application is that by filing this material at the stage he did, Mr Wilson has been responsible for prolonging unreasonably the time taken to complete the proceedings and that the Commissioner has incurred costs as a result of this unreasonable conduct.

333. The Commissioner referred to the fact that at the hearing on 30 January 2024 I asked Mr Wilson why he had not filed the transcripts of the Local Court criminal proceedings. Mr Madden said Mr Wilson had the transcripts with him but in response to the question about filing that material Mr Wilson said to do so would mean there would be a flood of material. Mr Madden said there was no indication at that stage that Mr Wilson would file the transcripts.

334. The Commissioner submits that at no time between the hearing on 29 or 30 January 2024 nor up to 16 February 2024, when the matter was relisted by the Tribunal’s Registry, did Mr Wilson indicate he wished to file any further material.

335. It was on 19 March 2024 that Mr Wilson emailed the Administrative and Equal Opportunity Division Registry and Mr Madden with seven attachments, including six days of transcript from Local Court and Supreme Court proceedings.

336. The Commissioner submitted that Mr Wilson simply gave no adequate explanation as to why it was that he did not serve or foreshadow service of the material between 30 January 2024 and 19 March 2024. He claimed he had other commitments.

337. The Commissioner said that Mr Wilson had an opportunity to raise the fact that he intended to file further evidence in his communications with Mr Madden and the Tribunal Registry in order to find a date suitable to the parties for the completion of the hearing of the substantive proceeding. This followed the Tribunal directly raising the issue of whether the transcripts would be filed with Mr Wilson on 30 January 2024 before Mr Wilson proceeded to close his case and give his closing address.

338. The Commissioner also argued that Mr Wilson was aware that the question of whether or not he swapped drivers was clearly in issue in the proceedings.

339. The Commissioner submitted that the filing of the 345 pages of material on 19 March 2024, two days prior to the recommencement of the substantive hearing on 21 March 2024 provided an entirely inadequate period of time for the Commissioner to consider the material.

340. The Commissioner submitted that an adjournment of the open hearing would not have been required on 21 March 2024 to provide the Commissioner time to consider the 345 pages of material if Mr Wilson had served his additional evidence at any of the following points in time:

1. By 9 January 2024 in accordance with the procedural timetable set prior to the commencement of the substantive hearing for the filing of Mr Wilson’s evidence in reply;

2. Before the hearing on 29 and 30 January 2024; or

3. On 31 January 2024, the day after Mr Wilson says he was alerted to the need to rely on the additional evidence.

341. The Commissioner also submitted that an adjournment of the 21 March 2024 hearing would not have been required if Mr Wilson had foreshadowed that he intended to rely on the additional evidence with sufficient time for the parties to seek to vacate the 21 March 2024 hearing date and relist the matter at another date by which time the Commissioner could have considered the further evidence.

342. Mr Madden submitted that by failing to take any of the steps outlined at [332] and [333], Mr Wilson acted unreasonably. It also denied the Commissioner an opportunity to seek to vacate the 21 March 2024 hearing date.

343. The Commissioner does not claim the costs of reviewing the additional 345 pages, but only seeks the costs generated by the timing of the service of that material. The Commissioner’s legal representative prepared for and appeared on 21 March 2024 and then had to address Mr Wilson’s application to reopen the evidence. Mr Madden asserts that none of these costs would have been incurred by the Commissioner but for the late filing of this further evidence.

344. The Commissioner submitted that the Tribunal should make a fixed costs order. Mr Madden argued that I had sufficient information in the affidavit annexed to the Commissioner’s submissions on costs to determine the amount of costs and to assess the reasonableness of those costs. He submitted that a fixed costs order would avoid the need for costs assessment, which involved additional expense in circumstances where the costs sought are modest. He also argued that the evidence Mr Wilson gave about divesting himself of assets would mean that Mr Wilson would not be capable of meeting the costs of any costs assessment.

Mr Wilson

345. Mr Wilson said that in the last ten to twelve minutes of the hearing day on 30 January 2024 the Respondent’s legal representative stated in closing submissions that Mr Wilson was “clearly lying” about the alleged substitute driver conduct. The Respondent claimed that the Tribunal should find that it was actually true that the following in fact occurred:

1. That Mr Wilson had arrived in a blue Ford; and

2. The phone records corroborate the offence.

346. Mr Wilson said that the Respondent then said there was no evidence other than what Mr Wilson said occurred and this may be hearsay. Mr Wilson said:

9. Up to this point in the proceedings the Respondent has only ever stated reference to the police claims of the brief of evidence. The Respondent has never made statements that any of those mentioned claims were ever proven to have actually “FACTUALLY OCCURED” [sic], At least in the “OPEN HEARINGS”.

10. The Respondent has never supplied any evidence at any time that any of the claims made by the police in the original police brief or COP’s [sic] event have been found by a Court to be true.

347. Mr Wilson argued that in the closing address the Respondent raised a new claim that he was in fact lying about the evidence in the criminal proceedings and the Court’s factual findings in those proceedings. He suggested that this was a deliberate approach taken by the Respondent in order to mislead this Tribunal. Mr Wilson believed that any decision-maker, when faced with the evidence produced at the criminal trial, would come to the same factual conclusions and that the Magistrate’s decision “speaks for itself”. Mr Wilson argued that the Commissioner sought only to rely on the Crown case in the criminal proceedings and ignore what happened in those proceedings, including the evidence and findings made by the Court. He suggested that the Respondent should have provided material from the criminal proceedings in this proceeding.

348. Mr Wilson argued that the costs application should be refused as the Respondent should have looked into the evidence in the criminal trial if the Respondent then wished to make claims about that evidence, including claims that Mr Wilson was lying in these proceedings.

349. Mr Wilson’s explanation for the timing of the filing of the further evidence was that he was involved in other legal proceedings and had to meet the procedural timetables in those proceedings as well, and this “unfortunately left [him] extremely short of time”.

Consideration of the costs application

Are there special circumstances warranting an award of costs and should the discretion to award costs be exercised?

350. It is useful at this point to address Mr Wilson’s point outlined at [337]-[339] above. The Magistrate did find Mr Wilson not guilty at trial in respect of the charges that arose from the 22 May 2018 car accident. However, as I have set out above, despite this outcome, this Tribunal can look at the underlying conduct and make factual findings about that conduct in the administrative review proceeding. I have made such factual findings. Refer to the discussion at [257]-[258] above.

351. I do not agree with Mr Wilson’s argument that it was unforeseen that the Respondent would suggest that he was “clearly lying” about the alleged substitute driver conduct or argue that in fact it was true he did swap drivers following the accident on 22 May 2018. One of the main arguments advanced by the Respondent, including in written submissions filed on 16 January 2024, was that Mr Wilson was involved in what the Respondent termed substitute driver conduct. The Commissioner argued in those submissions that the Tribunal should infer from the available evidence that Mr Wilson attended the accident after receiving a call from Scott Wilson, that Christopher was the driver in the accident and that Mr Wilson helped Christopher remove “contraband” from the Nissan and prevented Christopher coming to the attention of police. If Mr Wilson gave evidence that he in fact was the driver in the accident and that he did not arrive in a blue Ford as suggested by the Respondent, it is entirely open to the Respondent to submit in closing submissions that this evidence is not truthful.

352. I also do not agree that it was incumbent on the Commissioner to obtain and produce the transcripts from the criminal proceedings. That was evidence Mr Wilson should obtain in order to support his case that he did not swap drivers. The obligation that falls on the Commissioner is to produce those documents in the Commissioner’s possession or under her control that the Commissioner considers relevant to the determination of the administrative review: section 58 of the Administrative Decisions Review Act 1997. The additional material fell outside that provision. There is a practical onus on Mr Wilson to obtain and produce the documents on which he seeks to rely.

353. In respect of the costs application, the onus of making out special circumstances warranting an award of costs falls on the Commissioner: refer to Styles v Wollondilly Shire Council [2017] NSWCATAP 108 – refer to [5] under the hearing ‘Costs’ in those reasons.

354. Special circumstances are those that are out of the ordinary, but they do not need to be circumstances that are extraordinary or exceptional: refer to Cripps and Anor v G & M Dawson Pty Ltd and Anor; G & M Dawson Pty Ltd and Anor v Cripps and Anor [2006] NSWCA 81 at [60].

355. If special circumstances are found, there remains a discretion as to whether or not a costs order should be made, as the wording of subsection 60(2) is that the Tribunal “may” award costs. It does not automatically follow that a costs order should be made if I am satisfied that one or more of the factors in s 60(3) are made out and I am satisfied this amounts to special circumstances. I must further be satisfied that they are circumstances “warranting an award of costs”: refer to Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 cited in Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [108].

356. I am satisfied that Mr Wilson’s actions by filing 345 pages of material after he had closed his case on the basis that the Respondent’s legal representative, in closing submissions, argued his evidence was false and that in fact Mr Wilson had engaged in the driver swapping conduct, did unreasonably prolong the proceedings.

357. It was apparent from the Respondent’s case, as argued in written submissions filed on 16 January 2024 and prior to the commencement of the first hearing day on 29 January 2024, that the Respondent’s case was that the Tribunal could draw a conclusion that the driver swapping conduct in fact occurred.

358. Mr Wilson should have filed the additional material shortly after 16 January 2024 or after 30 January 2024 when I asked him why he had not filed the transcripts of the Local Court criminal proceedings. I agree that Mr Wilson could also have foreshadowed that he intended to make an application to reopen the evidence prior to the 21 March 2024 listing and requested that the 21 March 2024 date be vacated.

359. Instead, what Mr Wilson did was file the large amount of further evidence two days before 21 March 2024.
     The effect of that was that the hearing could not proceed with the remainder of the Respondent’s closing submissions in the open part of the hearing. The Tribunal had to hear an application to reopen the evidence and then allow Mr Wilson a further opportunity to make closing submissions following the reopening of the evidence. Part of the 21 March 2024 hearing date was able to be used as I was able to conduct the first confidential hearing and I note that the Respondent’s costs claim excludes this confidential hearing.

360. Mr Wilson’s actions in filing further evidence at such a late stage in the proceeding had the effect of derailing the proceeding and causing additional costs to the Respondent. He also took no steps to minimise the costs by seeking to vacate the hearing date. I am satisfied that Mr Wilson has been responsible for prolonging unreasonably the time taken to complete the proceedings.

361. The Respondent also relies on ground (f), that is that Mr Wilson refused or failed to comply with the duty imposed by section 36(3) of the Civil and Administrative Tribunal Act 2013. That subsection refers to the guiding principle in section 36(1) for that Act and the procedural rules, in their application to proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The duty referred to is that parties to proceedings are under a duty to co-operate with the Tribunal to give effect to the guiding principle and participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal.

362. The procedural timetable set by the Tribunal required Mr Wilson to file his material in chief on or before 21 November 2023 and his evidence in response to the Respondent’s material on or before 9 January 2023.

363. It is simply inadequate for Mr Wilson to claim that the fact he has other legal proceedings on foot means he was left “extremely short of time”. Mr Wilson was self-represented in this proceeding but he had the opportunity to file the material in the period commencing 31 January 2024. To then file it two days prior to the 21 March 2024 hearing date, more than six weeks after 30 January 2024, when he was asked directly by the Tribunal why he had not filed that material, leads me to a finding that Mr Wilson failed to comply with the duty imposed by section 36(3), that is to co-operate with the Tribunal in order give effect to the guiding principle in the way in which he participated in the Tribunal’s processes.

350. On the basis of my findings above in respect of section 60(3)(b) and section 60(3)(f), I am satisfied that there are special circumstances warranting an award of costs. I am also satisfied that the circumstances are such that the discretion to make an order for costs should be exercised. The conduct of Mr Wilson in filing the material so late when he had been asked directly by the Tribunal about why he had not filed the material and then waiting more than six weeks to in fact file the material was conduct I consider to be out of the ordinary and grossly unreasonable and so I have decided to make an order for costs: refer to Cripps and Anor v G & M Dawson Pty Ltd and Anor; G & M Dawson Pty Ltd and Anor v Cripps and Anor [2006] NSWCA 81 at [55].

What order for costs should be made?

365. The Respondent relies on the affidavit of Christina Ray, solicitor, dated 15 April 2024 in which Ms Ray sets out the legal costs incurred by the Respondent. Ms Ray stated that she consulted the Crown Solicitor’s Office legal practice management software to calculate the time entries wholly or partly attributable to the late service of Mr Wilson’s material on 19 March 2024. Ms Ray goes through the entries to determine what parts of those entries was solely due to the late service of the material, including preparation and part of the attendance at hearing on 21 March 2024. The amount arrived at is $1,275.

366. I consider that I should make an order for fixed costs as the sum is a relatively modest one and I am confident that sufficient detail has been provided by the Crown Solicitor about how that amount was reached. I consider that the costs claimed are reasonable: refer to 203 Castlereagh Street Pty Limited v Skybloo Holdings Pty Limited [2017] NSWCATAP 29 at [39]-[40].

367. I made the costs order as sought in the Commissioner’s application.

ORDERS

1. The decision of the Commissioner of Police on 25 September 2022 to refuse Mr Wilson’s application for a Category ABH firearms licence is affirmed.

2. Mr Wilson is to pay the costs of the Commissioner in the fixed amount of $1,275.

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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

Decision last updated: 23 July 2025