Al-Aaraj v Commissioner of Police, NSW Police Force

(1) the appellant's application for an extension of time in which to file the Notice of Appeal is dismissed; and

(2) the appeal is otherwise dismissed.

1. The appellant's Notice of Appeal was filed on 10 December 2024. This was one day after it should have been filed under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules). We shall return to that subject later in these reasons.
2. The Notice of Appeal contained eight grounds of appeal, but these were amended in the appellant's submissions filed 3 March 2025. The grounds of appeal are now:

1. Failure to identify the Senior Adjudicator as suitably qualified to conduct the internal review as well as the refusal to produce that person for cross-examination was a denial of natural justice and procedural unfairness.

2. Failure to provide information about the qualifications of the Senior Adjudicator who conducted the internal review was also a denial of natural justice and procedural unfairness.

3. Failure by the Tribunal to refuse Ms Michelle Mattar, Barrister to give evidence on character of the applicant despite the fact she was physically in attendance was also a denial of natural justice and procedural unfairness.

4. Failure to correctly apply the standard of proof outlined in Briginshaw v Briginshaw in the context of the paucity of the Police investigation was a denial of natural justice.

5. Failure to allow the defence of honest and reasonable mistake in respect of the applicant's response to questions on the application was a denial of natural justice and procedural unfairness.

6. The paucity and incompleteness of the Police investigation presented by the respondent in respect of the tape recorded conversations has led to a manifestly unreasonable determination.

7. The decision to characterise the applicant as being not a fit and proper person is unreasonable and against the evidence in view of time lapse since the initial incidents.

8. The decision the applicant should not be granted a firearms licence is contrary to the public interest is also manifestly unreasonable and against the evidence.

1. The appellant filed 6 pages of submissions with a further 16 pages of attachments, being the "Modified Grounds for Appeal" and a partial transcript of the proceedings before the Tribunal.

1. The Commissioner filed her Reply to Appeal on 31 January 2025.
2. In summary, the Commissioner submits that:

(1) the appellant's Notice of Appeal was filed out of time and that leave to extend the time for filing the Notice of Appeal should be refused;

(2) the appellant's asserted questions of law are not questions of law within the meaning of s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), and involve mixed questions of fact and law requiring leave to appeal.

1. The Commissioner then addresses each of the appellant's eight grounds of appeal.

1. In addition, the Commissioner filed lengthy submissions on 31 March 2025.

1. Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without exhaustively listing possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. These included:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were amplified by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204, where the Appeal Panel stated (references omitted):

32 To the above list [referring to the list in Prendergast extracted above] might be added the following (some of which are nuanced aspects of the categories in Prendergast):

(1) Whether the Tribunal drew inferences that were not available from the facts as found (an extension of item 7 [of Prendergast]) ...

(2) The construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way: ...

(3) Whether the Tribunal's decision was vitiated by bias, or a reasonable apprehension of bias, relates to and intersects with the fair hearing rule, and may encompass or be related to the procedural fairness question: ...

(4) Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: ...

(5) Whether the facts as found necessarily satisfied the statute or necessarily did not: ...

1. The Appeal Panel concluded at [33], "[p]lainly, the categories are not closed".

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Administrative and Equal Opportunity Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84] that:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

(a) issues of principle;

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

1. In order to understand the appellant's grounds of appeal, it is necessary to summarise the Tribunal's Primary Decision.
2. The Primary Decision is approximately 35 pages in length and comprises 210 numbered paragraphs. It is a lengthy, detailed and well-organised consideration of the relevant issues.
3. The first relevant section of the Primary Decision (at [3] - [11]) sets out the appellant's firearms licensing history and criminal charges. In summary:

(1) on 30 October 2001, the appellant was issued with a Category AB firearms licence;

(2) on 20 December 2006, the Category AB firearms licence was reissued;

(3) on 10 December 2008, the appellant was issued with a probationary pistol licence.

(4) on 19 November 2008, following of the establishment of Strike Force Comrie to investigate the possession and supply of illegal firearms, NSW Police commenced surveillance of the appellant's mobile phone ;

(5) on 13 February 2009, the appellant was arrested for offering to supply an SKS firearm, and the appellant's Category AB firearms licence and probationary pistol licence were both suspended. The police alleged that intercepted telephone conversations between the appellant and another were coded conversations about the sourcing and sale of prohibited firearms;

(6) on 29 January 2010, the appellant's probationary pistol licence expired;

(7) on 12 August 2011, the appellant was convicted and sentenced in the District Court of NSW;

(8) on 29 August 2011 the Commissioner revoked the appellant's Category AB firearms licence;

(9) on 28 September 2012, the appellant sought the issuing of a Category AB firearms licence from the Commissioner;

(10) on 2 November 2012, the Commissioner refused that application;

(11) on 22 August 2014, the appellant made a further application for a Category AB firearms licence;

(12) on 2 September 2014, that application was refused on 2 September 2014;

(13) an internal review was sought, and the Commissioner affirmed the refusal decision on 20 November 2014;

(14) on 1 March 2023, the Commissioner issued the appellant with a Firearms General Permit. This permit expired on 1 April 2023;

(15) on 26 March 2023, the appellant made a further application for a Category AB firearms licence;

(16) on 3 May 2023, this application was refused. The is the decision under review.

1. The second relevant section of the Primary Decision (at [12] - [13]) sets out a summary of the charges and allegations against the appellant and the outcomes. The Primary Decision states:

12 Some of the charges changed or were added to as Mr Al-Aaraj's case progressed through the criminal courts. However, in summary, there were:

(1) Three possess prohibited weapon charges: Police alleged they found a set of handcuffs, an extendable baton and a taser device during the search of Mr Al-Aaraj's home.

(2) A possess ammunition charge: Police alleged they found .45 calibre ammunition during the same search and that this ammunition was for a firearm that Mr Al-Aaraj did not hold licence for.

(3) A sell prohibited firearm to person unauthorised to possess it charge: Police alleged that Mr Al-Aaraj offered to sell a prohibited firearm, namely an SKS rifle, to a person named 'Elias' and another person named Chris El-Azzi and also he offered to sell a prohibited firearm, an AK 47 rifle, to Mr El-Azzi.

13 The sell prohibited firearms charge was ultimately withdrawn. On 12 August 2011 the District Court sentenced Mr Al-Aaraj by imposing a section 9 bond for one year and a fine of $1,100 for each of the extendable baton and taser device offences. He received a fine of $550 for the handcuffs offence. The ammunition charge was dealt with on a Form 1, meaning that it was taken into account on sentencing for the other charges.

1. At [14] of the Primary Decision the Tribunal noted that:

(1) it was not in dispute that the weapons offences for which the appellant was convicted are prescribed offences for the purpose of s 11(5)(b) of the Firearms Act 1996 (NSW);

(2) the effect of this provision, together with cl 5(1)(a) of the Firearms Regulation 2017 (NSW), is that the Commissioner must refuse any firearms licence application made by the appellant until 12 August 2021.

1. At [16] - [19], the Tribunal discusses the refusal of the Commissioner on 3 May 2023 refuse the Category AB firearms licence, on the basis of false statements the Commissioner said the appellant made on the 2023 application form and also the 2011 convictions.
2. The Adjudication Officer observed that the appellant proffered as the genuine reason for his firearms licence application, "Recreational Hunting - Hunting Club", must be outweighed by the interests of public safety and public interest grounds: Primary Decision at [19].
3. At [20] - [24], the Tribunal discusses the internal review of the Commissioner's decision to refuse the Category AB firearms licence. The Tribunal notes that the internal reviewer:

(1) expressed concern that the appellant was not a fit and proper person because of a lack of honesty: Weckert v Commissioner of Police, NSW Police Force [2011] NSWADT 197;

(2) considered that the appellant's history of firearms and weapons offences and the false information provided on the application form led to concerns that it would not be in the public interest for the Commissioner to issue to firearms licence;

(3) took into account alleged conduct by the appellant of attempting to sell a prohibited firearm using coded language;

(4) despite the passage of time since the alleged conduct, considered the alleged conduct to be so serious as to lead to an "erosion of public confidence in the administration of the firearms licensing system" if the appellant was to be issued with a Category AB firearms licence in those circumstances;

(5) found that the appellant had provided false information on his application form and rejected the explanation given by the appellant that course instructor for the Firearms Safety Training Course he undertook, advised him that the Firearms General Permit granted to him in order to do the course "effectively allowed [him] to say that [his] licence has never been revoked" and he was placed in a "fresh position" and he should answer "no" on the form;

(6) considered that the appellant's prior conduct raised concerns for public safety and that the appellant displayed a lack of regard for the law.

1. At [25] - [32], the Tribunal sets out the procedural history of the appellant's application for administrative review.
2. At [33] - [43], the Tribunal sets out the relevant legislation and the principles regarding administrative review.
3. At [44] - [160], the Tribunal then summarises the course of the hearing and:
   • sets out preliminary issues raised (being the qualifications of the officer who conducted the internal review and character referees unavailable for cross-examination), and gives its decision on those matters;
   • summarises the parties' opening arguments;
   • notes that an ERISP video recording of the appellant's police interview on 13 February 2009 which included parts of intercepted phone calls made on 7 January 2009, 12 January 2009 and 6 February 2009 was played following the opening addresses;
   • summarises the evidence and other materials relied on by the appellant; and
   • summarises the evidence and other materials relied on by the Commissioner.
4. At [142] to [147], the Tribunal summarises the appellant's submissions.
5. At [148] to [160], the Tribunal summarises the Commissioner's submissions.
6. The Tribunal's consideration of the appellant's application for review commences at [161] of the Primary Decision.
7. In its findings in relation to the appellant's weapons charges, the Tribunal:

(1) was satisfied that the appellant was convicted of possess prohibited weapon offences in the District Court on 12 August 2011, and accepted that the appellant received a section 9 bond for one year and a fine of $1,100 for each of the extendable baton and taser device offences and a fine of $550 for the handcuffs offence;

(2) rejected the appellant's evidence that the taser device never worked as a taser and that it was more of a torch;

(3) found that on that on 13 February 2009 the appellant was found in possession of .45 calibre ammunition and that this ammunition was for a firearm that the appellant did not hold a licence for.

1. In its findings in relation to the intercepted phone calls, the Tribunal stated:

167 ... I had regard to the discussion of the case law in Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [34]- [40] and [43]-[45], which can be summarised as follows. In administrative review proceedings neither party has an onus of proof. Rather, it is the Tribunal that must consider all relevant material. The Tribunal must base its findings of fact on logically probative material and not mere suspicion or speculation. However, the Tribunal can have regard to the gravity of any allegations and the consequences that may flow from making a finding or decision when assessing the evidence.

168 In making findings of fact about the intercepted phone calls, I have reached a level of reasonable satisfaction, taking into account the seriousness of the allegations and the consequences that flow from such a finding. It is a very serious finding to make that Mr Al-Aaraj engaged in the procurement and sale of prohibited firearms. While I am not bound to do so, I have had regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 as a guide.

169 The evidence before me has led me to a level of reasonable satisfaction that on 7 January 2009 Mr Al-Aaraj intended to source an AK 47 rifle and an SKS rifle from Mr El-Azzi. I accept that the intercepted conversation had this meaning. I also find and am reasonably satisfied that on 6 February 2009 Mr Al-Aaraj intended to sell an SKS rifle with a 30-round ammunition magazine for $20,000 to Mr El-Azzi and that the intercepted conversation had that meaning.

170 I reached a level of actual persuasion as to the meaning of the phone calls. I find no other interpretation could be given to the meaning of the intercepted calls. I found Mr Al-Aaraj's evidence that what he said in the calls was "rubbish talk" unconvincing. I also found Mr Al-Aaraj's explanation that he was young and that he was talking this way to fit in with the crowd unconvincing. Rather, I consider that Mr Al-Aaraj refused to offer an honest response about the meaning of the calls, despite the fact that a section 128 certificate was granted. ...

1. In its findings in relation to the firearms licence applications, the Tribunal found the appellant's explanations about the incorrect answers given on the 2023 form unsatisfactory.
2. In its findings in relation to the appellant's traffic record, the Tribunal found that:

(1) the appellant had some 23 traffic infringements over the period from 1996 to 2022 including negligent driving in 2000 and a burnout in 2005;

(2) the appellant's licence was suspended for three months in 2000;

(3) the appellant's NSW visiting driver privileges were suspended for three months in 2006, and that

(4) many of the infringements were for speeding and disregarding street signs.

1. At [189] - [193], the Tribunal reviews the character references relied on by the appellant. This consisted of the evidence of two Police officers who gave evidence and were cross-examined who were generally firm in their assessment of the appellant's character. Both conceded they may have reconsidered giving evidence if all the allegations against the appellant were correct. The Tribunal gave no weight to "two other written character references" references as the Commissioner did not have the opportunity to examine those two witnesses.
2. At [194]ff, the Tribunal then comes to apply the relevant law to the facts. The first issue was whether or not the appellant is a fit and proper person to be issued with a Category AB firearms licence. The Tribunal considered that he was not, stating:

200 I consider Mr Al-Aaraj is not a fit and proper person to be issued a firearms licence and I am not satisfied that he can be trusted to have possession of firearms without danger to public safety or the peace: refer to section 11(3)(a) of the Firearms Act 1996. In coming to that determination, I considered the following facts:

(1) Mr Al-Aaraj was convicted of weapons offences in the District Court in 2011 arising from the 2009 possession of an extendable baton, taser device and handcuffs. The taser device was a prohibited weapon.

(2) The 10 year period during which the Commissioner must refuse any firearms licence application in respect of Mr Al-Aaraj because of the convictions for weapons offences expired on 12 August 2021.

(3) In 2009 Mr Al-Aaraj was found in possession of .45 calibre ammunition and this ammunition was for a firearm that Mr Al-Aaraj did not hold licence for. This ammunition was found unsecured at his home.

(4) On 7 January 2009 Mr Al-Aaraj intended to source an AK 47 rifle and an SKS rifle from Mr El-Azzi and on 6 February 2009 Mr Al-Aaraj intended to sell an SKS rifle with a 30-round ammunition magazine for $20,000 to Mr El-Azzi. Both rifles are prohibited firearms.

(5) Mr Al-Aaraj gave false answers on his 2014 and 2023 licence applications.

(6) Mr Al-Aaraj has a lengthy traffic history.

201 I agree with the Respondent that the attempt by Mr Al-Aaraj to obtain and sell prohibited firearms in a covert manner by coded telephone conversations is a very serious matter. It is so serious that it cannot be overlooked and there is nothing in the factual circumstances of this matter that lead me to any other conclusion than Mr Al-Aaraj is not a fit and proper person. The character referees do not assist greatly in this regard as those referees, when confronted with the full gamut of Mr Al-Aaraj's conduct, unreasonably clung to a view that Mr Al-Aaraj was a "family man" and "nice guy" and I do not believe that the two witnesses were a good judge of character.

202 In addition, Mr Al-Aaraj's provision of incorrect information on this firearms application forms as recently as 2023 shows that he is not a fit and proper person to be granted a licence.

1. At [203]ff, the Tribunal then considered the Commissioner's submission that the appellant should not be granted a firearms licence because it would be contrary to the public interest: Firearms Act 1996 (NSW), s 11(7).
2. The Tribunal found:

206 Having made factual findings that Mr Al-Aaraj engaged in conversations for the purpose of sourcing and selling prohibited firearms, I am satisfied that, standing in the shoes of the Commissioner, the discretion to refuse Mr Al-Aaraj a firearms licence should be exercised as it would be contrary to the public interest for Mr Al-Aaraj to be issued with a licence.

207 The AK 47 and SKS rifles are military grade firearms and when in or modified to be in automatic mode can discharge a very large number of cartridges per minute. They are firearms that are prohibited from entering the community and it is of very serious concern that Mr Al-Aaraj was engaged in the procurement and sale of these types of firearms.

208 Of particular concern is Mr Al-Aaraj's false answers on the two firearms application forms, which goes to the issue of public confidence in the administration of the licensing system.

209 The public would be very concerned that a person who had attempted to source and sell prohibited firearms and who gave false information on applications for firearms licences would have access to firearms. There is no other conclusion to reach other than that a firearms licence application should be refused as to the issue of a licence to Mr Al-Aaraj would be contrary to the public interest.

(1) found that the correct and preferable decision is that the appellant should not be issued with a firearms licence as he was not a fit and proper person and the issue of a licence to him would be contrary to the public interest; and

(2) affirmed the decision of the Commissioner to refuse the appellant's application for a Category AB firearms licence.

1. We note at the outset that there was a real question as to whether any of the grounds of appeal raised a question of law. Mr Laycock, for the appellant, asserted that they did, particularly in their amended form which invoked denials of natural justice and procedural fairness.
2. The appellant's task was not assisted by his failure to submit that any ground of appeal that raised a question of law consistent with the statements of principle of the Appeal Panel in Prendergast and Cusumano. Nor was the appellant's task assisted by his refusal to recognise that grounds 1, 2 and 3 related to interlocutory decisions, for which leave to appeal is required, regardless of whether or not a question of law was raised.
3. Mr Coffey, who appeared for the Commissioner, submitted that none of the appellant's grounds raised a question of law, and that therefore leave was required for each ground and that, for the reasons set out in his written submissions, leave should not be granted.
4. In response, Mr Laycock, submitted that if any ground did not raise a question of law, the appellant sought leave in respect of those grounds.
5. We had the benefit of written and oral submissions of the parties. We think the best course is simply to consider each of the appeal grounds by reference to the parties' submissions.
6. The grounds are set out above at [4].

1. Failure to identify the Senior Adjudicator as suitably qualified to conduct the internal review as well as the refusal to produce that person for cross-examination was a denial of natural justice and procedural unfairness.

2. Failure to provide information about the qualifications of the Senior Adjudicator who conducted the internal review was also a denial of natural justice and procedural unfairness.

1. The appellant deals with these two grounds together and we agree that that is the appropriate course.

(1) not only did the Tribunal decline to have the internal reviewer available for the hearing, it also declined to have the internal reviewer identified;

(2) this prevented the appellant from issuing a subpoena "to test the decision making process and the capacity of the decision making process and the capacity of the decision maker to make that decision";

(3) the internal reviewer is a "Grade 5 Public servant operating in an administrative capacity" and would not have the capacity nor expertise to make decisions concerning "such a complex and serious legal and operational matter";

(4) the appellant was denied the opportunity to cross-examine the internal reviewer on their qualifications and expertise in deciding on a matter carrying 20 years' imprisonment;

(5) the appellant does not concede that this was an interlocutory issue but rather a denial of procedural fairness and therefore a question of law for which leave is not required;

(6) the evidence of the internal reviewer is relevant "to the extent that decisions made could be seen to taint the whole process".

(1) these grounds seek to raise appeals in respect of interlocutory decisions made at the Tribunal hearing for which leave is required under s 80(2)(a) of the NCAT Act; see too NCAT Act, ss 4(1)(e) and (i);

(2) the amendment to the grounds of appeal by the addition of the reference to "procedural unfairness" does not permit the ground of appeal to be characterised as a question of law;

(3) where a decision that is challenged on the appeal was an interlocutory decision, an appeal lies only by leave, even where the appeal is brought in respect of a question of law;

(4) applications for leave concerning matters of practice and procedure must be approached with restraint at the appellant level: Newton v Ellis [2012] NSWCA 106 at [17];

(5) the principles which apply to leave to appeal an interlocutory decision were considered by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54.

1. We see no error in the Tribunal not requiring the internal reviewer to be identified, let alone required for cross-examination, and no precedent or authority was cited for this proposition. The experience of the Appeal Panel, as we put to Mr Laycock, was that internal reviewers are never identified and never cross-examined at a later hearing about their reasons for decision.
2. In any event, as put to Mr Laycock by both the Tribunal and the Appeal Panel, what would be the relevance of such an exercise when the Tribunal was hearing the appellant's application for a Category AB firearms licence afresh? An internal review founds the Tribunal's review jurisdiction, it is not a judicial review of errors in the internal reviewer's decision.
3. In Champion Homes Pty Ltd v Guirgis, the Appeal Panel stated at [34] that there was no specification in the NCAT Act as to the circumstances in which leave should be granted in respect of interlocutory decisions. Rather, there is a discretion to be exercised and general principles apply to the grant of leave to appeal such decisions. At [35], the Appeal Panel stated that those principles included:

2 ... the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ;

3 Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; [2000] 104 FCR 564;

4 Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. ...

5 There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318 at 323;

6 Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation [1988] FCA 398; (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 225-6;

7 In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec);

8 Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9;

9 Lastly, subject to the above, the matters set out in Collins at [84(1)-(2)] are also relevant to the exercise of a discretion to grant leave.

1. We have set out [84] of Collins above at [15].
2. We asked Mr Laycock why leave should be granted given these principles. Mr Laycock submitted that the internal reviewer had made a decision was which was "completely wrong" thus disadvantaging the appellant, and that the lack of cross-examination of the internal reviewer had "tainted" their decision.
3. We find that response unpersuasive, and we see no basis why leave should be granted in respect of Grounds 1 and 2. We do not accept that there are substantial reasons to do so, and we do not accept that there was any error of principle by the Tribunal resulting in substantial injustice warranting a grant of leave. We also note that this was not the exercise of a discretion that determined substantive rights of the parties.

Failure by the Tribunal to refuse Ms Michelle Mattar, Barrister to give evidence on character of the applicant despite the fact she was physically in attendance was also a denial of natural justice and procedural unfairness.

1. The appellant submitted that the Tribunal refused to allow Ms Michelle Mattar, a barrister, who had provided a reference in support of the appellant, "from giving evidence despite being present at the Tribunal hearing".
2. That submission mischaracterises what in fact occurred at the hearing. In the Primary Decision, the Tribunal records:

Character referees unavailable for cross-examination

Ms Mattar

47 Ms Moses, solicitor for the Respondent, objected to the tender by the Applicant of a character reference from Ms Michelle Mattar, a barrister, dated 15 September 2023. The Respondent did so because Ms Mattar was unavailable for cross-examination on 19 February 2024, the original date set for the hearing of the administrative review. Ms Moses said that she wished to question Ms Mattar about what was said in the reference. Ms Mattar said she was "of the belief that parts [of Mr Al-Aaraj's criminal history] are in dispute". Ms Moses said she also wished to ask Ms Mattar about what she said were "some complications in relation to his legal representations at the time [of Mr Al-Aaraj's charge for the possession of handcuffs] in relation to other offences". Ms Moses also wished to ask Ms Mattar about the fact that Mr Al-Aaraj's first language is not English and a suggestion he required assistance from his wife in order to fill out forms.

48 I allowed the tender of the document into evidence but the fact that this witness was not made available for cross-examination is considered below.

49 When the hearing resumed on Monday 4 March 2024 Mr Laycock informed me that Ms Mattar was available to give evidence. The Respondent opposed allowing Mr Laycock to now call Ms Mattar to give evidence as Ms Moses had only been informed on Friday 1 March 2024 that she would be available. Ms Moses argued that the Respondent would be disadvantaged by this very late request to now call this witness.

50 After hearing from the parties, I refused the request to call Ms Mattar to give evidence on the basis that it would be a denial of procedural fairness to the Respondent to now allow this witness to give evidence.

1. We asked what Mr Laycock had intended would occur on the second day of the hearing, were Ms Mattar permitted to give additional evidence. Mr Laycock said that "there were further topics to be discussed". Mr Laycock conceded that the Commissioner was not on notice that he wished to adduce further oral evidence in chief from Ms Mattar, and that the appellant had not provided any form of statement of Ms Mattar setting out the further evidence she proposed to give.
2. In those circumstances, where Ms Mattar's character reference had been admitted into evidence on the first day of the hearing, we find the appellant's submission that the proposed evidence of Ms Mattar "goes to the heart of the appeal", was without merit.
3. We pause to ask rhetorically, how could it, when it is not known what that evidence was to be.
4. We further find that the appellant's submission that the Tribunal erred by not allowing Ms Mattar to give oral evidence in chief on the second day of the hearing, in circumstances where her character reference was admitted into evidence on the first day, to be without substance.
5. Finally, while the appellant sought leave in the event that we did not accept that this ground raised a question of law, as the appellant's submissions do not engage in any way with the principles concerning leave to appeal set out above, we would not grant leave in respect of Ground 3.

4. Failure to correctly apply the standard of proof outlined in Briginshaw v Briginshaw in the context of the paucity of the Police investigation was a denial of natural justice.

6. The paucity and incompleteness of the Police investigation presented by the respondent in respect of the tape recorded conversations has led to a manifestly unreasonable determination.

1. Both parties agreed that these grounds could be considered together, as both grounds concern the Police investigation, the paucity and incompleteness of which the appellant complains, including the failure of the Tribunal to "correctly apply the standard of proof outlined in Briginshaw v Briginshaw".[1]
2. We note that it is incorrect to refer a Briginshaw standard of proof. This was made clear in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, where Mason CJ, Brennan, Deane and Gaudron JJ stated at [2], (authorities omitted, save for Briginshaw):

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud ...

On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear ((2) Briginshaw v. Briginshaw [1938] HCA 34; ...

Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct. ...

(emphasis added)

1. In other words, it is incorrect to talk about a Briginshaw standard, the correct descriptor is the Briginshaw principle.
2. All that said, this issue was correctly dealt with by the Tribunal at [167] - [168] of the Primary Decision, which we have set out above.
3. As to the "paucity" and "incompleteness" of the police investigation, again, given that the role of the Tribunal is to reconsider the appellant's application for a Category AB firearms licence afresh, as the Commissioner correctly submits, the appellant's submissions concerning the adequacy of the police investigation misunderstands the role of the Tribunal, as the Tribunal is not looking at the integrity of the criminal investigation.
4. In the written submissions, the appellant stated that leave to appeal was requested. However, in oral submissions, in response to questions from the Appeal Panel, Mr Laycock submitted that a question of law was raised as the appellant was denied natural justice in that the Tribunal decision was based on false or erroneous premises arising from the inadequate and insufficient Police investigation
5. We see no substance in this ground of appeal. In our view, no question of law is raised consistent with the statements Prendergast and Cusumano or otherwise.
6. Again, as the appellant's submissions do not engage in any way with the principles concerning leave to appeal set out above, we would not grant leave in respect of Ground 3.

Failure to allow the defence of honest and reasonable mistake in respect of the applicant's response to questions on the application was a denial of natural justice and procedural unfairness.

1. In essence, the appellant's written submission can be reduced to the proposition that "[f]ailure by the Tribunal ... to allow this defence (honest and reasonable belief in a state of facts that would mean the accused was innocent) is a denial of natural justice and is a question of law for which to appeal is sought".
2. On its face, this ground of appeal lacks any substance. The appellant simply appears to be asserting that the Primary Decision was wrong, but no reasons are identified at all for why that is the case. No explanation has been advanced for how the criminal defence to a strict liability offence based on Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536; (1941) ALR 64 is applicable in merits review proceedings. Indeed, if it were, there is no submission indicating what the honest and reasonable belief was.
3. Again, we see no substance in this ground of appeal, and no question of law consistent with the statements in Prendergast and Cusumano or otherwise.
4. Again, as the appellant's submissions do not engage in any way with the principles concerning leave to appeal set out above, we would not grant leave in respect of Ground 5.

7. The decision to characterise the applicant as being not a fit and proper person is unreasonable and against the evidence in view of time lapse since the initial incidents.

8. The decision the applicant should not be granted a firearms licence is contrary to the public interest is also manifestly unreasonable and against the evidence.

1. These grounds can also be considered together. They are assertions by the appellant that he disagreed with the overall outcome of the Primary Decision, that is that he was not a fit and proper person to hold a Category AB firearms licence and that it is not the public interest for him to do so.
2. These grounds do not raise questions of law, either consistent with the statements in Prendergast and Cusumano or otherwise.
3. At the appeal hearing, Mr Laycock submitted that these conclusions were against the weight of the evidence, and that the internal reviewer had failed to take into account the passage of time since any of the appellant's convictions, and that the Tribunal's decision was "manifestly unreasonable". When questioned by the Appeal Panel why this was the case, Mr Laycock referred to the appellant's "unblemished record" since 2009 and that the appellant had "paid the price" for his offences.
4. Again, as the appellant's submissions do not engage in any way with the principles concerning leave to appeal, we would not grant leave in respect of either of Grounds 7 or 8.

1. We noted above that the Notice of Appeal was filed a day late. Mr Coffey confirmed at the appeal hearing that leave to extend the time for the filing of the Notice of Appeal was opposed, and that the Commissioner sought orders that leave to extend time be refused, and that the appeal otherwise be dismissed.
2. Where an extension of time is sought and leave to extend time is opposed, we are required to consider the length of the delay, the reason for the delay, the appellant's prospects of success, and the extent of any prejudice suffered by the respondent to the appeal: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
3. The length of the delay was a day (Mr Laycock submitting that the delay was in fact half a day), a default that was entirely his fault. While Mr Coffey noted as a formality that there was no evidence before the Appeal Panel on that matter, we accept the statement of Mr Laycock given from the Bar Table.
4. Clearly, the length of delay was minimal and that factor supports an extension of time.
5. As for the reason for delay, this was the fault of Mr Laycock personally, and not the appellant himself. In our view, this factor supports an extension of time.
6. As to whether the appellant's prospects of success, in Jackson the Appeal Panel explained that this usually means "whether the applicant has a fairly arguable case".
7. For the reasons given above, we do not consider that the appellant has a fairly arguable case. The appellant's initial arguments were that eight questions of law were raised. We disagree. We see no questions of law being raised, either consistent with the statements in Prendergast and Cusumano or otherwise.
8. As to leave to appeal, we did not see any basis on which leave should be granted for any ground, do not accept that any ground of appeal involved issues of principle, questions of public importance or matters of administration or policy, which might have general application an injustice which is reasonably clear, or a factual error that was unreasonably arrived at and clearly mistaken.
9. We further note that in respect of grounds 1, 2 and 3, all of which in our view raised questions of practice and procedure, no attempt was made by the appellant to address the principles for leave in such matters set out in Champion Homes v Guirgis.
10. In these circumstances, the appellant's lack of prospects of success strongly militates against granting an extension of time.
11. In the light of these matters, the Appeal Panel is satisfied that the appellant has not shown that strict compliance with the rules would work an injustice upon him, given his lack of prospects of success on any of the grounds of appeal on which he relies.
12. For these reasons, it follows that the Appeal Panel is not prepared to grant the appellant an extension of time in which to appeal.
13. Therefore, we propose to dismiss the application for the extension of time in which to file the Notice of Appeal, and to otherwise dismiss the appeal.

1. The Commissioner has provided written submissions on costs. If the Commissioner wishes to supplement those submissions (or to provide any evidence on costs), she may do so within 14 days of the publication of these reasons.
2. The appellant may respond within a further 14 days, and the Commissioner may reply within a further 7 days.
3. Submissions are to be limited to 5 pages.
4. We propose to deal with the question of costs on the papers and without a hearing. Either party opposing that course must address that issue in their submissions. Attention is drawn to the statement of the Appeal Panel in **Westweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 at [85], that "**costs decisions in the Administrative and Equal Opportunity Division and on appeal (unless dealt with at the time of the hearing) are routinely considered "on the papers", and without a hearing".

(1) The appellant's application for an extension of time in which to file the Notice of Appeal is dismissed.

(2) Leave to appeal is refused.

(3) The appeal is otherwise dismissed.

(4) Any further submissions on costs are to be filed by the respondent within 14 days of the publication of these reasons.

(5) The appellant may respond within a further 14 days of the publication of these reasons.

(6) The respondent may reply within a further 7 days of the publication of these reasons.

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.

08 May 2025 - Par 1, 14 and 94 - the words "Consumer and Commercial Division" replaced with "Administrative and Equal Opportunity Division"

Par 9, 22, 42, 48, 78 and 91 - the word "Commission" replaced with "Commissioner".

[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336