Chavoush v Commissioner of Police, NSW Police Force

The Appeal

1. The appellant lodged the appeal on 4 November 2022. Decisions of the Tribunal are internally appealable decisions and an appeal can be made from them as of right, where there is a question of law and with the leave of the appeal panel on specified grounds: see, s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW). The appellant is appealing both on the basis that the appeal raises a question of law and seeks leave to appeal.
2. The appellant submits that relying on the principles raised in House v The King [1936] HCA 40 a question of law arises because the Tribunal: 1. Acted on a wrong principle 2. Was guided by extraneous or irrelevant facts 3. Mistook the facts 4. Failed to take into account a material consideration 5. Imposed a sentence manifestly unreasonable, or plainly unjust
3. The appellants primary assertion is that the Tribunal mistook the facts. We shall deal with that issue first.

Material error of fact

1. The principles which the appellant is presumably referring to outlined in House v The King, are contained in the judgement of Dixon, Evatt and McTiernan JJ at 505. For such a decision to be set aside for legal error, "it must appear that some error has been made in exercising the discretion". The plurality went on to explain what is meant by legal error: It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
2. The respondent submits that the error arises from para [40] of the Tribunals reasons for decision, where the Tribunal stated: The Respondent submitted that the whilst the Applicant has accepted responsibility for his actions on 4 April 2021 and has expressed contrition for his actions, he has not provided evidence to the Tribunal demonstrating the strategies he "would employ to ensure similar mistakes were not repeated". I agree. Although he has now completed a firearms safety awareness course, this is a basic requirement of a firearms licensee.
3. The appellant submits that the Tribunal has mistaken that the course completed was in fact an Advanced Course on Firearm Legislation, as opposed to the Firearm Safety Awareness Course.
4. In that regard the appellant had provided to the Tribunal, a letter dated 1 June 2022 from Gary Bryant, CEO of Firearm Safety and Training Council Limited. Mr Bryant stated in the letter of 1 June 2022 that: The Firearm Safety and Training Council Ltd is a Registered Training Organisation that is approved by the NSW Firearms Registry for the delivery of the Firearms Pre-Licence Qualification course: a mandatory course for all NSW firearms licence holders. The attached certificate certifies that you have successfully completed a course in firearms legislation relating to NSW which is designed to improve the general knowledge of the firearms laws in this State and covers a firearm licence holders' responsibility as to matters including safe storage, transportation, use/carriage/possession of firearms. The course includes an examination of the issues that gave rise to the cancellation of your firearms licence and the knowledge and measures necessary to prevent any recurrence.
5. The appellant's legal representative agreed at the appeal hearing before us that he had not put to the Tribunal at the hearing that the course undertaken by the appellant was an 'advanced' course. It was not described in that way in the legal representatives submissions to the Tribunal.
6. In our view, it was open to the Tribunal, considering the statement in paragraph 1 of Mr Bryant's letter, to find that the course that was undertaken by the appellant was a firearms safety awareness course that is a basic requirement of a firearms license. In that regard the Tribunal did not make an error of fact.
7. Further, the certificate certifying that the appellant completed the course noted that the appellant had: … successfully completed a course of study on firearms ownership, possession and use. The course was theoretical in nature and did not include practical handling.
8. It could also be inferred from the exclusion of practical handling from the course that the course undertaken by the appellant was the same course that every new applicant for a firearms license is required to complete before he or she makes an application for a licence.
9. That is because s 11(3)(b) of the Firearms Act provides that a licence must not be issued to a person who had never held a firearms license unless the applicant has completed a 'firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned'.
10. Regulation 144 of the Firearms Regulation 2017 (NSW) provides: (1) Except as provided by subclause (2), the firearms safety training courses that are prescribed for the purposes of the Act are as follows - (a) for firearms other than pistols - the course known as the Firearms Licence Qualification Course or any other approved course conducted by or on behalf of an approved person or body, (b) for pistols - an approved course conducted by or on behalf of an approved pistol club. … (3) The relevant course to be completed by applicants in respect of particular categories of licences or types of permits is to be determined by the Commissioner.
11. On 20 June 2022, at the conclusion of the hearing before the Tribunal, the Tribunal made directions for the parties to file further submissions. On 28 June 2022 the appellant filed further material which contained a further letter from Mr Bryant, addressed to the appellant's legal representative. Mr Bryant states: You have asked for an outline of the training syllabus pertaining to acquiring a firearms licence in 2001 and whether the course has changed in any substantial way over that time. … In 2006 the requirement changed substantially when the NSW Firearms Registry directed that a greater emphasis be placed on legislation with a written test and a practical handling session was introduced. A certificate could be issued on if the applicant successfully completed both segments of the course.
12. The reference by Mr Bryant, to the 2006 changes demonstrate that the training syllabus for the acquiring of a firearms license has two segments. The first is a written test where emphasis is placed on legislation and the second is a practical handling session. It is reasonable to infer from the letter of 1 June 2022 written by Mr Bryant and the certificate, that what the appellant completed was the written part of the course which is ordinarily completed by those seeking to obtain a firearms licence in NSW. In that regard it was not unreasonable for the Tribunal to find that the course undertaken by the appellant was the basic requirement course which was required for anyone seeking to obtain a license and we are not of the view that the Tribunal mistook the facts in that regard.

Error of Legal Principle

1. One of the bases for the respondent's decision to reject the appellant's application for a firearms licence had been that the appellant had not demonstrated his knowledge of firearms legislation and safe handling practices.
2. The appellant submits that in those circumstances, the fact that the appellant had completed the firearms course and attained the certificate on 1 June 2022, demonstrated that the appellant had fulfilled the outstanding requirement of the respondent as contained in the decision made on 9 December 2021.
3. Section 11 (3) of the Firearms Act relevantly provides that: (3) A licence must not be issued unless - (a) 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, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and (c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and (d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.
4. We note that s 11(3A) of the Firearms Act provides that, despite s 11(3)(b), the respondent may require an applicant for a licence to complete a firearms training course. However, more importantly, s 11 (4) to (8) of the Firearms Act goes on to prescribe a number of circumstances where the respondent must not issue or refuse to issue a licence even though satisfied of the matters in s 11(3). These circumstances include where the respondent considers the issue of the licence would be contrary to the public interest: Firearms Act s 11(7).
5. In this case, the Tribunal accepted that the appellant had undertaken a training course, at his own initiative. However, the Tribunal went on to consider, as it was required to do, whether, on the material before it, the issue of a licence to the appellant would be contrary to the public interest. Hence, on this basis, the Tribunal did not make an error.

Unreasonable or plainly unjust decision

1. The appellant submits that the Tribunal imposed a sentence manifestly unreasonable, or plainly unjust. The application that was before the Tribunal was an application for administrative review of a decision of the respondent to refuse to issue the appellant with a firearms licence. It was not a case relating to the imposition of a sentence and in that regard the Tribunal could not have erred in that way submitted by the legal representative of the appellant.
2. In Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, at [45] Heydon J stated in relation to an attack on a decision of a discretionary nature that: … Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker: … (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. Even though this Court might conclude that it would have exercised the discretion differently if the discretion had been conferred on it in the first instance - might have adjourned the matter so as to permit the defendants to consider the late-supplied particulars, or might have held the plaintiff to the old particulars, or might have fixed one more "final" date for outstanding matters to be completed by - any such conclusion would be immaterial. The law committed the exercise of the discretion to Garling DCJ. The law permits interference with his exercise of the discretion in only the limited circumstances just described…
3. In our opinion, the appellant has not demonstrated that the Tribunal's reasons for decision were manifestly unreasonable or unjust.
4. At [10] - [24] of the reasons for decision, the Tribunal set out the relevant legal principles to be considered in determining the administrative review application. At [25] - [28] of the reasons for decision the Tribunal set out the evidence of the appellant.
5. At [29] of the reasons for the decision the Tribunal agreed with the respondents submission that the appellant's contraventions of the Victorian Firearms legislation should be considered as a significant factor weighing against the granting of the licence, consistent with the principles espoused in Lynch v Commissioner of Police (GD) [2006] NSWADTAP 43 at [47].
6. At [30] the Tribunal accepted that the appellant had engaged in the criminal conduct alleged, despite having no conviction recorded.
7. At [31] the Tribunal acknowledged that the appellant has been licensed to possess and use firearms for almost 20 years, but that he appeared to have been ignorant of the elementary offences under the Victorian Act not to "carry loaded firearm in a public place" or "carry or use a longarm without a licence", for which similar provisions exist in NSW firearms legislation.
8. At [32] the Tribunal agreed with the respondent's submissions that as a result of the appellant being found guilty of carrying a loaded firearm in a public place, the appellant's actions at the time he committed the offences he posed a real and appreciable risk to the safety of the public.
9. At [33] the Tribunal did not accept that the appellant had, in fact, researched the relevant legislative requirements for hunting and spotlighting in Victoria prior to his trip and found that the appellant's actions demonstrated that he was ignorant of the legislative requirements or chose to ignore them.
10. At [39] the Tribunal accepted the respondent's submissions that the appellant's actions on 4 April 2021 demonstrated that his knowledge of firearms laws and regulation were insufficient and that: … the Tribunal could have little confidence that the applicant has the requisite knowledge to comply with relevant regulations in circumstances where he has agreed to, but failed to comply, with regulatory provisions in the past.
11. The Tribunal's finding at [40] have been set out by us at [14] above. At [41] the Tribunal considered the references provided on behalf of the appellant and gave them 'reasonable weight'.
12. At [42] the Tribunal found that the appellant's evidence that he was not required to undergo any safety awareness training prior to the incident, in all the years that he held a firearms licence, was concerning because it was contrary to legislative requirements.
13. At [43] the Tribunal accepted the respondent's submission, that the appellant's failure to identify the genuine reason of "recreational hunting/vermin control" (in addition to the genuine reasons of 'Target Shooting Club') on his licence application suggests that the appellant does not appreciate the strict requirements of the Firearms Act, as he should have formally applied for that genuine reason if he intends to undertake it again.
14. At [45] the Tribunal concluded: I agree with the Respondent's submission, that the Tribunal can have little confidence that the Applicant does not pose a risk to public safety in circumstances where he has so recently contravened provisions in the Victorian Act and other regulations that regulate the use of firearms and related activities, and has only recently undertaken the appropriate firearms safety awareness course. There would have been a mandatory refusal of his firearms licence application if he was given a conviction for the offences he admitted pursuant to cl 5(1)(1) of the Firearms Regulation 2017.
15. In our view, the Tribunal's reasons for the decision were reasoned and logical. The Tribunal did not arrive at a decision so unreasonable or unjust that an error has occurred. The reasons adequately reveal how the Tribunal arrived at its decisions and the findings it made were open to it on the evidence.
16. The appellant also submits that the decision in Mallon v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 325, has parallels to the appellant's case given that the applicant in that matter had undertaken the same "Advanced Course".
17. We have considered the circumstances of the applicant in Mallon and there is very little similarity, if any, to the circumstances giving rise to the firearm charges of which the appellant was found guilty in these proceedings. At [103] - [104] of the reason for decision in Mallon the Tribunal concluded: The applicant is a professional grazier owning and operating a 40,000 acre sheep and cattle property. He also runs a trucking company and has other business interests and is a productive member of the community. It is in the public interest for law-abiding farmers and graziers to have access to long arms for the protection of the environment and of primary industry. The contraventions on his record, especially the 2021 incident and the ensuing charges, constitute significant blemishes on his record. He has, however, taken active steps to remedy the situation by undertaking an approved course on firearms safety and legislation, from which he says he learned a great deal. He is regretful of his transgressions and there appears to be no real risk that he will reoffend. The decision under review should be set aside and a category ABC licence should be restored to him.
18. There is no reference to the course that Mallon undertook, being described as an "Advanced course" anywhere in the Mallon decision. Even if we were to assume that the course referred to in Mallon was the same course as the one that was undertaken by the appellant in these proceedings, it is clear from the concluding remarks extracted above, that the undertaking of the course was not the only reasons for the Tribunal decided to grant the firearms license in the Mallon proceedings. On that basis, the applicant has failed to demonstrate an error arising out of the appellants reference to Mallon.

Insufficient weight

1. The appellant submits that "insufficient weight has been afforded to the appellant having had a firearm licence for 20 years without incident prior to the charges in Victoria, his complete lack of criminal antecedents, as well as a compliant attitude to the traffic regulations".
2. As is demonstrated by [31] of the Tribunals reasons for decision (referred to at [36] above), the Tribunal acknowledged the appellant's firearms licence history, however it determined that despite that history, the appellant appeared to be ignorant of the elementary offences under the Victorian Act for which similar provisions exist in NSW firearms legislation.
3. We note that the Tribunal had before it a NSW Police criminal history search that did not disclose any criminal offending. Yet there was no evidence before the Tribunal of the appellant's 'compliant attitude towards traffic regulations'. Even if there was such evidence, it is difficult to see how, given the recent firearms specific offending of the appellant, evidence of this nature would carry much if any weight.
4. The Tribunal expressly noted the fact of the appellant having held a firearms license for 20 years and weighed it against other factors in determining what the correct and preferable decision was at the time of hearing. In this regard, the Tribunal determined that the correct and preferable decision was to refuse to grant the license sought by the appellant. Again, in our view, that was a determination that was open to the Tribunal on the material that was before it and the applicable law.

Conclusion on question of law

1. Regarding the matters raised by the appellant in relation to a question of law, we are of the view that the appeal must fail. For completeness, while the appellant did make assertions that that the Tribunal was guided by extraneous or irrelevant facts and failed to take into account a material consideration, the appellant failed to elaborate on those submissions or demonstrate that the error did occur and, in that regard, not error arises.

Leave to Appeal

1. The appellant also seeks leave to appeal. The appellant has failed to elaborate on or address the basis for seeking leave. In fact, many of the matters raised above as questions of law, are in effect grounds for which the appellant requires leave to appeal.
2. The relevant legal principles for granting leave to appeal were set out by the Appeal Panel in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35]: As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd V Philip Morris inc (1981) 148 CLR 170 at 175; [1981] HCA39; However, 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; 1. Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; 2. Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; 3. 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) 46 SR (NSW) 318 at 323; 4. 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 (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; 5. 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); 6. 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: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; 7. 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.
3. Given our findings above in relation to the purported errors of law and the failure of the appellant to raise any other matters or grounds on which leave to appeal is being sought, we find that the appellant's application for leave to appeal must be refused.

Orders

1. Accordingly, we make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed.

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

Amendments 02 March 2023 - Heading following paragraph 24 - spelling error corrected: Principal, to Principle. 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: 02 March 2023