Bilanenko v Commissioner of Police

NCAT Administrative and Equal Opportunity|2022-02-11

Reasons for Decsion

This is an application, made by Mr Bilanenko (the applicant) for review of a decision made by the Commissioner of Police (the Commissioner) revoking a firearms licence.
The Tribunal has decided to affirm the Commissioner's decision to revoke the firearms license.

Material relied on

In reviewing the matter and making the correct and preferable decision, the Tribunal is obliged to reconsider all the material considered by the original decision maker together with any further relevant material before it. Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77.
The applicant relies on: 1. Statement of Boyd Bilanenko dated 3 December 2021 (Exhibit 1) 2. Statement of Boyd Bilanenko dated 31 January 2022 (Exhibit 2) 3. Statement of Melissa Bilanenko dated 30 January 2022 (Exhibit 3) 4. Further statement of Melissa Bilanenko dated 30 January 2022 (Exhibit 4)
The Commissioner relies on: 1. Documents lodged pursuant to s58 of the Administrative Decisions Review Act 1997 1997 (ADR Act) (Exhibit 5) 2. Supplementary documents lodged pursuant to s58 of the ADR Act (Exhibit 6) 3. A statement from Sergeant White dated 22 December 2021 (Exhibit 7). (subject to the objections that were allowed) 4. A statement from Constable Bayliss dated 7 December 2021 (Exhibit 8). (subject to the objections that were allowed) 5. A statement from Sergeant Wilson dated 17 December 2021 (Exhibit 9)

Background

The applicant had a firearms licence before the Firearms Act 1996 (the Firearms Act) came into force. He has owned a firearm since childhood. He was issued with a firearms licence in February 1998. Following an alleged assault on 15 January 2001, the applicant became subject to a two-year Apprehended Violence Order (AVO) and as a result of the AVO, on 14 March 2002 his licence was revoked. The applicant was later issued with a firearms licence on 7 October 2009. On 30 June 2021, following a dispute with his neighbour, a decision was made to revoke the applicant's firearms licence.
An internal review of the decision to revoke the license was conducted on 6 August 2021 by a delegate of the Commissioner. The decision to revoke the license was upheld and a firearms prohibition order was imposed against the applicant. The reasons for the decision indicate that a review of the applicant's history demonstrates that he has great difficulty in containing his anger and a "distinct pattern of cantankerous and combative behaviour". That includes assaults, aggressive behaviour, and disputes with customers over payments which have resulted in police reports.

The Legislative Framework

Pursuant to s 75 (1) (c) of the Firearms Act the applicant may apply to the Tribunal to review the decision to revoke his license.
In accordance with s 63 of the ADR Act the Tribunal is empowered to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any law, and may exercise all relevant functions conferred or imposed on the Commissioner. In determining the application, the Tribunal may affirm, vary or set aside the decision and make a decision in its place, or set aside the decision and remit the matter for reconsideration by the Commissioner in accordance with any directions or recommendations of the Tribunal.
The underlying principles of the Firearms Act are outlined in s 3. Relevantly they are; 1. to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 2. to improve public safety - 1. by imposing strict controls on the possession and use of firearms, and 2. by promoting the safe and responsible storage and use of firearms.
Section 24 of the Firearms Act prescribes that a license may be revoked if the licensee is determined to no longer be a fit and proper person to hold such a license (s 24(2)(c)) or for reasons prescribed by the regulations including that it is no longer in the public interest for the licensee to hold the license (s 24(2)(d)). The Commissioner relies on both grounds for revocation of the licence in in this matter, that is, the 'public interest' ground and that the applicant is no longer a 'fit and proper person' to hold a licence.

Consideration

The Commissioner refers to a series of incidents to demonstrate that the applicant has exhibited behaviour and a pattern of behaviour that in the context of a firearms licence holder warrants the revocation of the applicant's firearms licence.
Having considered the incidents I find that they do reveal a pattern of behaviour in which the applicant is combative, aggressive, provocative and lacks insight into that behaviour.

Incident of 25 February 2021

On 25 February 2021, the applicant was involved in an incident with his neighbour, Mr Guy Bright. Video footage of the incident was taken by Mr Bright and has been provided as an annexure to the statement of Constable Bayliss (exhibit 8).
The s 58 documents (exhibit 5) contain a COPS Event E149771901 entry. In the event details Constable Bayliss notes: … the POI has driven the bobcat forward causing the raised bucket to go over the fence into the VIC [Mr Bright's] property. The bobcat has hit the fence causing fence panels to buckle and one panel to fall off. In total, six panels have been damaged. The POI has driven off and the VIC has contacted the police."
In cross examination the applicant acknowledged that he drove the bobcat towards his neighbours' fence and knew his neighbour Mr Bright was there and agreed that he wanted Mr Bright to stop filming. However, he stated that it was a fabrication that he was driving the bobcat towards Mr Bright to intimidate him.
In his statement (exhibit 1), the applicant also explains the damage to the fence which occurred on 25 February 2021. 36. At approximately 5.30pm on 25 February I was completing work on my property and in my skid steer machine when I noticed two hands over the boundary fence of Mr Bright's property, one holding a phone and the other waving a can of beer. Mr Bright has recently sold his property and by his actions with the beer I assumed he wanted to chat to me as he was moving to Coal Point. I turned off the machine, approached the fence and spoke to Mr Bright. It was at that point he proceeded to abuse me. 37. I decided to restart the skid steer machine to put it away. I did not damage the fence by lifting the bucket over and crushing it down as stated. When I spun the machine around to pack it away it accidentally clipped the panel causing sideways damage.
In his subsequent statement (exhibit 2) the applicant relevantly responds in relation to Constable Bayliss' statement: 4. I maintain that the damage caused to the fence is accidental. The photos of the damage attached to Constable Bayliss' statement should the railings of the fence to be intact. The damage to the fence as shown in the photos is consistent with me clipping the fence panelling. I deny the allegation that I drove toward Mr Bright and damage the fence as alleged in paragraph 9 Of constable Bayliss' statement.
The applicant also explains in that statement that he was operating his bobcat for his benefit, to complete work on his property and for his son's entertainment.
The video footage does not depict some of the things referred to by Constable Bayliss in her statement. Similarly, Constable Bayliss' statement also leaves out some of the things that are depicted in the video footage, including the names and swearing called out by Mr Bright. The applicant submits that on that basis, the statement of Constable Bayliss is not an accurate record of the events and the Tribunal should find that where the video footage does not show something that is contained in Constable Bayliss' statement, it did not occur
I have viewed the video footage. It commences by showing the applicant in a bobcat faced towards his neighbour's fence, beeping his horn and clanging the bucket and moving towards the fence where Mr Bright is (knowing he is there filming). The applicant is then seen moving away from the fence and turning the bobcat around continuing to clank the bobcat bucket. Mr Bright can be heard to be yelling "you childish cunt". The applicant continues driving around on a small patch on his property nearby the fence with no readily apparent purpose and clanking his bucket. Mr Bright continues to call the applicant names including "you're a wanker' at which point the applicant turns off the bobcat and takes out earphones from his ears so he can hear what Mr Bright is saying. After hearing what Mr Bright has said, the applicant replies, "you're the biggest wanker in the world mate". Mr Bright then tells him that "I have just videoed you carry on like a fucking fruit loop" and the video ends shortly after with further inaudible comments made by the applicant.
It is apparent that the parties have a history of dispute. Annexed to Constable Bayliss' statement are photographs which show the following words sprayed on containers on the applicant's property: FACE SHED TO YOUR HOUSE NOT OURS #5YEARS OF HELL
In those circumstances I am not satisfied that the applicant would have assumed, seeing Mr Bright over the fence that he "he wanted to chat" with him about his move. Further, I find that the writing of those words as a message on a container aimed at a neighbour is behaviour which is provocative.
In his statement (exhibit 2), the applicant confirms that the words … are written on the container in response to Mr Bright constructing a shed, with the roller doors to the shed facing my property. Mr Bright constructed the shed without proper approval and, due to operating a business from the property, would work and make significant noise that impacted my peace and enjoyment of the property.
Taking into consideration the words on the container and the nature in which the applicant is driving the bobcat in the video footage, I find that the applicant was driving the bobcat nearby his neighbour's fence in retaliation to Mr Bright filming him and as part of the ongoing dispute between the parties and not simply for work or the applicant's son's entertainment. He reacted that way in circumstances where he knew his neighbour's house had been sold and that Mr Bright would soon be leaving.
I also find that as a result of driving the bobcat in the manner he did, he has damaged the fence. The applicant states that the repair to the damage in the fence cost him approximately $100 in parts and about an hour to repair which he did himself. The applicant included an invoice for the materials used dated 3 March 2021. This is seemingly to imply that the damage to the fence was of a minor nature and he had repaired it. There are photos of the damage to the fence attached to Constable Bayliss' statement. The photos show the top rail of the fence as undamaged, however they do show that at least one panel of the fence has fallen off and another is indented and the side rail is damaged. The applicant disputes that the fence was damaged in the way described by Constable Bayliss in her statement.
I accept that the fence was not damaged in the way described by Constable Bayliss in her statement, that is by lifting the bucket over the fence. The lack of damage to the top railing is not consistent with the damage caused by lifting the bucket over the fence. However, the applicant concedes the fence was damaged by him at the time of the incident by "clipping" the fence. I find it relevant to the matter that the applicants conduct in his dispute with his neighbour has led to him clipping the fence. It is demonstrative of the lack of care taken in driving his bobcat and the consequences of his action, even if they were not intended, as a result of the dispute.
While this incident did not lead to criminal charges, I find that the words on the container, the manner of driving the bobcat and resultant damage of the fence, demonstrate that applicant did react to his neighbour in a way that was combative, provocative, argumentative and aggressive. Of added concern, is the lack of insight the applicant has in relation to his actions and the denial of his behaviour, including the reasons he provided to police and the Tribunal as to why he was driving the bobcat in the manner he was.

Interactions with Police

The Commissioner makes submissions that in a series of interactions with police, the applicant's behaviour demonstrates that he is uncooperative, dishonest, aggressive and combative.
The Commissioner refers to the applicant's conduct when police attended his premises following the incident with his neighbour on the evening of 25 February 2021. Constable Bayliss' has described the attendance in her statement and has also provided body worn video footage from that evening.
The footage shows that Senior Constable Kassis and Constable Bayliss attended the home of the applicant at about 11pm that evening. Police ask the applicant a series of question in relation to the incident which had occurred with Mr Bright earlier that day and about how the fence was damaged. Constable Bayliss then serves the applicant with the provisional Apprehended Personal Violence Order (APVO) and informs him "the difficulty this raises for you is that you are a firearms owner", to which the applicant responds, "who said this?". In response to being advised that his firearms would be temporarily seized the applicant makes comments swearing "fuck me", "for fucks sake" and "fuck". When Constable Bayliss asks the applicant where his firearms safe is located, he replies, "I could say it's at Goodooga but it's here in the shed". When Senior Constable Kassis asks "Do you know how many guns you got?" the applicant responds, "I wouldn't fucking have a clue". The Firearms Registry had a record of 25 registered firearms at the time. The applicant also tells the police officers he would take action against them, stating "I will make a complaint against you guys" and "I'm going to sue you".
Having viewed the video and considered the parties submissions it is clear that the applicant was frustrated in his dealings with police on the night they attended on 25 February 2021, including by his use of swear words. Perhaps if the swearing had occurred on its own, the words would amount to no more than frustration. However, the applicant's threats to sue the police officers and make complaints against them were without basis at that the time when he made them. Having previously been required to surrender his guns because of an AVO, it should not have been surprising to the applicant that he may be asked to surrender his guns in circumstances where he had been served with an ADVO. Having not even attended the gun safe at stage, there was no apparent basis for the applicant to have told police that he would "sue" them or "make a complaint". I find that this was a done by the applicant to influence police not to seize his guns. Police in the video up at that point had been courteous and remained calm. That behaviour on the applicant's behalf is behaviour which is combative and aggressive towards police.
On 8 March 2021 the applicant did make a complaint against Constable Bayliss and Senior Constable Kassis, on the basis that the police officers had stolen $20,000 cash from the safe when they removed the guns on 25 February 2021. Detective Sergeant Wilson's investigation subsequently found the applicant's complaint was "without basis" and he formed the view that the complaint was "instigated to seek the revocation of the AVO and obtain seized firearms back from police". Detective Sergeant Wilson found the applicant was unable to support his claim by providing any evidence of the existence of the money. It is also alleged that the applicant repeatedly asked Detective Sergeant Wilson when the AVO would be revoked and or firearms returned. Ultimately the complaint was withdrawn. The Commissioner submits that the complaint was without basis and appears to have been instigated for an ulterior purpose to achieve the revocation of the AVO and seize his firearms back from police.
It was not put to the applicant in cross examination that the allegation of the theft was a lie. The applicant's wife, Ms Bilanenko states (exhibit 3) that while she does not have access to the safe, she was "aware" that they had at least $80,000 cash (minus $5000 that was paid to an excavator in mid-January 2021). The applicant submits that this supports the fact that the cash existed. The applicant states that he withdrew the complaint because he was being asked by Sergeant Wilson for the details of the people who had given him cash and he did not want those people being contacted by police. He also felt that the investigation was going nowhere because it was a police officer from the same police station investigating other police officers.
The video footage from Constable Bayliss does not continue past the point where the applicant directs the police officers towards the safe where the guns are. It certainly does not reveal that the police officers stole any money. However, I do not find because the applicant later withdrew the claim that the applicant was dishonest in making it in the first place. I have given no weight to the making of the complaint in my determination of the matter.
The Commissioner had also initially made submissions that relevant to whether the applicant was a "fit and proper person" was that he purported to have $75,000 cash in his firearms safe working "cash job" in the trades and that an inference may be drawn that the applicant had done so to evade his taxation obligations. That submission was not pressed at hearing and I have not considered it in my determination.
The Commissioner submits that the applicant was dishonest and uncooperative because after Constable Bayliss informed the applicant that she had only found 24 of the 25 firearms, the applicant said, "I have another one" and then Senior Constable Kassis found and seized the final firearm from the applicant's residence. I also do not find that this amounts to dishonesty or the applicant being uncooperative and have given it no weight in my determination.
The Commissioner refers to another dealing with police on 28 April 2013. The Commissioner alleges that the applicant was dishonest with Sergeant White about the disposal of his firearms in 2004 and police involvement in and APVO against Mr Tony Issa. It is alleged the applicant asserted that Sergeant White had given evidence in relation to the APVO when she hadn't. While I am not satisfied that those allegations amount to dishonesty, it is the balance of the interaction with Sergeant White during the course of that conversation which is of greater concern.
Sergeant White states (exhibit 7) that in the conversation with the applicant on 28 April 2013, she advised the applicant that the earlier APVO had not been taken out by police and that he himself had disposed of his firearms. He then became very aggressive and started yelling at her, calling her a "cunt" and "corrupt". He also threatened Sergeant White with words to the effect of "you're going to cop it" and "I'm going to take you to court". A COPS information report has been provided with the s 58 documents (exhibit 6) and Sergeant White sets out in her statement: I would not usually record my conversation with individuals in the form of a COPS information report. However, I recorded this integration with the Applicant and provided a brief background because the Applicant was extremely aggressive, made threats against me and was dishonest about the disposal of his firearms and police involvement in the APVO.
In his statement the applicant denies abusing or making derogatory comments to Sergeant White. However, on the basis that a contemporaneous record was made by Sergeant White at the time of the call, I prefer her version of events and I find that the applicant did threaten and abuse her as is described by her in the paragraph above.
The applicant's language and threats towards Sergeant White about taking her to court and that "you're going to cop it" demonstrates he is argumentative, aggressive and confrontational in his dealings with police in the course of performing their usual duties.
The Commissioner also refers to an interaction with police on 1 June 2021. COPS event recording E 149771901 contained in the s58 documents, notes that the applicant attended Windsor Police Station requesting his firearms be returned. Police explained that they were unable to do so without the Firearms Registry permission. The applicant later called Senior Constable Hall at the station and said he had been advised by the Firearms Registry to go back to the police station and fill a form. Police contacted the Registry who confirmed there was no such form. The applicant was then called and advised that it may take several months for his suspension to be reviewed and once completed a letter would be sent. Constable Bayliss also makes reference to this interaction in her statement and states that she believes that this demonstrates that the applicant was not being honest with police. The applicant states (exhibit 2) that he attended Windsor Police Station as the AVO had been revoked and he believed he was able to recover his firearms. I find that is a plausible explanation from the applicant. He may have wrongly understood that he was entitled to his firearms, but that does not amount to dishonesty.

History of other behaviour

The Commissioner refers to other conduct of the applicant over the period from 2001 to 2015 and submits it reveals a pattern of conduct which is also combative and demonstrates aggression and a lack of insight into his conduct. Details are contained in COPS entries in the s58 documents and in the applicant's statements.
The first relates to conduct involving an incident with Mr Tony Issa in 2001. Entries in COPS Events E11127767 and E14449408, refer to an incident said to have occurred on 15 January 2001 and in which the applicant was involved in a verbal and physical altercation with Mr Issa. It was reported to police that the applicant threatened Mr Issa's family and grabbed Mr Issa's left arm with both hands and pushed him. Mr Issa applied for an AVO, naming the applicant as the defendant. The final AVO was granted on 30 November 2001 for a period of two years.
In his statement (Exhibit 1) the applicant acknowledges that the AVO was granted after a contested hearing with Mr Issa and states he later applied to have the AVO revoked and it was revoked on 12 August 2009. However, the applicant denies assaulting or threatening Mr Issa. He states he completed a job at Mr Issa's property and Mr Issa did not pay a fee of $1,100.00 owing. He commenced Court proceedings against Mr Issa and on 22 August 2000 obtained a judgment in his favour for the amount. Mr Issa also commenced Tribunal proceedings against the applicant in the Consumer Trader and Tenancy Tribunal. From the Consumer, Trader and Tenancy Tribunal reasons for decision annexed to the statement it appears that the applicant also made a cross application and both Mr Issa's application and the cross-application were dismissed.
The applicant submits that because of the revocation of the AVO and the fact that the applicant was granted a firearms licence after the AVO was revoked, the incident should be given little weight in determination of this matter.
I accept that I do not have before me the grounds and findings which led to the making of the AVO. However, I am satisfied that I can infer that by granting the AVO after a contested hearing, Mr Issa had reasonable grounds to fear, or did fear personal violence. The making of the AVO does not appear to have been appealed by the applicant and the fact that he applied to have it revoked some 8 years later does not impact on the fact that the Court initially granted the AVO. On that basis I find that together with other matters outlined in this decision, it should be given weight in determination of this matter.
Entries in COPS Event E29498056 describe an incident said to have occurred between the applicant and Mr Bruce Carroll. The applicant states that he completed work for Mr Carroll and there was a dispute in relation to unpaid amounts which were allegedly owing to the applicant. The works appear to have commenced in December 2003 and the incident has occurred sometime later in 2007. The COPS entry describes two different versions of events in relation to a physical altercation that broke out between the applicant and Mr Carroll and his son. Both versions describe that on 2 March 2007 it was the applicant who attended at the property the subject of the work. Both parties agree that Mr Carroll did not initially recognise the applicant. Each party then goes on to describe that a physical altercation occurred which was instigated by the other. Ultimately it is noted that in the entry that: Police are of the opinion that the son made attempts to assault the POI [Bilanenko] first and the POI was acting in self-defence. Police feel that the victim and son would corroborate each other's story. However can't be relied upon due to them not being independent witnesses and the rather large civil matter that is happening between the POI and the victim's family at this stage.
The applicant states that he commenced proceedings against Mr Carrol and obtained judgement against him.
A COPS entry Event E42967337 refers to another incident involving a work dispute for the payment of monies between the applicant and Hector Garcia. The report indicates that Mr Garcia contacted police on 22 January 2011 stating he would like to make a report of threats from the applicant to him. The applicant had carried out air conditioning repairs at Mr Garcia's house and was demanding money. The applicant later attended the police station to inform police that Mr Garcia had failed to pay his invoice and was avoiding his calls. The applicant denies he made the threats to Mr Garcia and states that he attended the police station as Mr Garcia was avoiding his calls. He told police he did not threaten Mr Garcia and that Mr Garcia owed him $550 and that the applicant told Mr Garcia not to be a "scrooge". The entry indicates that police spoke to both parties who agreed they would only contact each other through legal representatives in the future.
Although both these incidents did not result in criminal charges, they are consistent with a pattern that emerges in relation to disputes the applicant has over money in relation to work. The works for Mr Carroll had commenced in 2003 and the incident occurred sometime later in 2007. No reason is provided as to why the applicant decided to attend Mr Carroll's property and it is clear from his experience with Mr Issa that he is familiar with commencing civil proceedings to recover monies. Further, it is unclear why the applicant would have needed to report that Mr Garcia was avoiding his calls or that he owed him $550 to police. The applicant was well aware of the civil process to recover monies.
A further incident involving a dispute over work is contained in COPS entry Event E49710561. The dispute is said to have occurred in July 2012 with Mr John Polokov. The work related to fixing the air conditioner for Mr Polokov. The notes in the entry indicate that a series of messages were sent between the parties and after those exchanges the applicant received a call from Mr Polokov stating he was going to seek an AVO which prompted the applicant to contact police. The applicant states that he told Mr Polokov he would not do the job for him and no further action was taken by police.
However, COPS entry Event E859517390 details a further incident with Mr Polokov that occurred in 2015. The applicant became involved in a physical altercation with Mr Polokov at a cafe. Police interviewed both the applicant and Mr Polokav. In his statement the applicant states that the COPS event entry contains an accurate account of events from 15 January 2015. Police ultimately decided to charge Mr Polokov with an offence. The applicant submits that he was not charged in relation to the incident, and so the Tribunal can be satisfied that Mr Polokov was the aggressor. I note in the interview with police, the applicant told them that he entered the café and observed Mr Polokov and his son seated in the rear of the store located approximately 5 meters from the front counter and he greeted Mr Polakov and said, "Hi John, how are you going?". This resulted in Mr Polokov standing up from his seat and going over to the applicant and the altercation then occurred. Police note that the two parties have had a civil disagreement over 15 years and more recently three years ago (presumably a reference to the incident referred to in the July 2012 in the paragraph above). According to the entry a witness working at the café relevantly gave the following account: The witness states that the POI and his son were seated at the rear of the café, with the POI facing the front of the shop, the VIC [Mr Bilanenko] has walked into the store and the witness states that she thought the two males must have been friends as they spoke to each other. The POI [Mr Polokov] has left his seat where his son was seated and walked over to where the VIC was standing. The POI has stood in front of the VIC so close that they were touching, the POI with both hands has pushed the VIOC to the chest area causing him to fall backwards into the glass fridge of the store. The VIC has retaliated and punch the POI to the mouth area. The Poi at this stage has turned to the witness and said "Did you see that he hit me first" The POI has then punched the VIC and the WIT has heard the young boy screaming, she walked over to where the boy was and yelled at the two males "Stop it and get out of the shop." The two males continued to fight out of the store. The WIT called the Police who arrived a short time later.
The applicant states he punched Mr Polokov in self-defence. What is concerning about this incident is that that although the parties had a dispute over work previously, the applicant did not choose to avoid Mr Polokov when he saw him, but rather greeted him and from that followed a physical altercation between the parties. There is a pattern of his work disputes resulting in threats and physical altercations and at very least the applicants conduct demonstrates an inability for him to extract himself or avoid situations that will result in dispute.
This also occurs in situation that do not involve work disputes. A COPS entry Event E33251145 details a complaint that was made by the applicant to police on 17 March 2008. The applicant states he was attending a friend's buck's night at the Mean Fiddler on 16 March 2008. He saw two security guards' approach one of the males in his group and have a discussion and he said, "what's the problem". The report notes that security then had a short conversation with the applicant and he was asked to leave the premises. He had a full drink and he asked if he could finish it. The report states that two security guards then approached him and grabbed his wrists with two hands putting the victim in an armhole. He was then escorted from the premises into the car park of the Mean Fiddler and asked to leave. He subsequently left in a taxi. The next day he saw his GP complaining of soreness to his fingers and wrists and was diagnosed with carpal tunnel. Police interviewed staff at the Mean Fiddler and were advised that at least 8 people had to be removed using reasonable force on the night in questions and the security guard could not remember any particular person.
The entry notes that police did not proceed with charges due to insufficient evidence and because security is permitted to use reasonable force to remove a patron if they feel threatened. The applicant was also told he could seek legal advice for a civil action. The applicant confirms in his statement that the entry is an accurate account of events.
I note that the security guards had not approached the applicant in the first instance, they had approached his friend. Rather than extract himself from the situation he became involved by asking the security guards "what's the problem", again demonstrating that the applicant does not have insight into avoiding situations of conflict.
The Commissioner also refers to an incident which is detailed in COPS entry Event E52424820. The applicant telephoned police in 2013 in relation to what he perceived to be dangerous motorcycle riding by three children. The applicant states that the COPS entry is an accurate record of events. The applicant states that he called the police after his wife was confronted by a Mr Mark Attard. When Mr Attard was questioned by police, he stated that the applicant had thrown rocks at the riders. No further actions appear to be taken by police in relation to this matter. Having considered the evidence in relation this incident, I am not satisfied that the applicant threw rocks at riders or was at fault in any way and have not given this incident any weight in my determination.

Fit and Proper Person and Public Interest

In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence: 25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
The 'public interest' may include concerns in relation to 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.
In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 at paragraph [28] Hennessy DP said that in terms of a "fit and proper person" and public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would never pose any risk to public safety.
In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
They went on to say at 388: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
In relation to whether the applicant is a fit and proper person, the applicant submits that the pattern of combative and aggressive behaviour alleged by the Commissioner is overblown, insofar as there was no allegation or consideration of wrongdoing on his part with respect to some incidents, and there was at least a gap in relation to any incidents from 2015 to 2021. The applicant submits that there is nothing overly concerning from the perspective of firearms regulation about a citizen going to the police in relation to allegations that he believes are worth reporting and instead it shows a respect for the authority of law enforcement officers. The applicant also submits that payment disputes are common enough for business owners, and the fact that the police are involved from time to time does not itself show that the applicant has "great difficulty containing [his] anger", as was suggested by the internal review decision.
I disagree and I find that the applicant is not a fit and proper person to hold a firearms license. The incidents referred to with Mr Issa, Mr Polokov, Mr Bright, police, the applicant's other work clients and even in the pub demonstrate that the applicant is aggressive, provocative and combative. More concerning is the applicant appears to have no insight into that behaviour and often denies or minimises his responsibility. Further, he has no insight about how his conduct may lead to damage, including in relation to the damage to the fence that arose out of the manner he was driving his bobcat in his dispute with his neighbour. That is a particularly concerning trait in relation to the applicant's perspective about safety and for the holder of a firearms license. The applicant is also provocative and this is demonstrated by his writing the sign to his neighbour on the container on his property, and in his dealings with police and others. The applicant allows himself to get into situations which result in disputes such as becoming involved in the incident at the Mean Fiddler when security guards were talking to someone else in the group and by greeting Mr Polokov at the café when he had previously had disputes with him. That lack of judgement has led him to situations of dispute.
While I accept that there was a period of 5 years between 2015 and 2021 when there is no reported police incident, the applicants conduct in his dispute with Mr Bright in 2021 is indicative that the pattern of behaviour, that is that he is provocative, aggressive and combative has not been resolved. The applicant does not acknowledge he has those issues and has not provided any evidence that he is taking steps to remedy them. Having considered the evidence, I find the applicant is not a fit and proper person to hold a firearms licence, in particular because the applicant finds himself in situations that do lead to physical altercations and threats and has no insight into how he may avoid them.
I also find that it is not in the public interest that the applicant be given a firearms licence. Considering the object of the Firearms Act to ensure public safety and my findings in relation to the applicants conduct, I am not satisfied that there would be virtually no risk to public safety if he were given a firearms licence.
Accordingly, the correct and preferable decision is to affirm the decision to revoke the license impose a firearms prohibition order on the applicant

Order 1. The decision under review is affirmed

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 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2022

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (1)

Cited By (7)