Commissioner of Police, New South Wales Police Force v Parish

AVS Group Australia Pty Ltd v Commissioner of Police, NSW Police Force [2012] NSWADTAP 24

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9

Collins v Urban [2014] NSWCATAP 17

Commissioner of Police, New South Wales Police Force v Hogan [2024] NSWCATAP 77

Commissioner of Police, NSW Police Force v Cseszko [2016] NSWCATAP 194

Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573; [2000] FCA 420

Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16

Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378

Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12

GTK v NSW Treasury [2025] NSWCATAP 174

Health Care Complaints Commission v Sathiyapal [2025] NSWCATOD 41

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) [2016] NSWCA 375

Jardin v Metcash Ltd [2011] NSWCA 409

John Prendergast & Vanessa Prendergast v Western Murray Irrigation [2014] NSWCATAP 69

Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206

Medical Council of New South Wales v Mooney [2024] NSWCA 180

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Parkes v Commissioner of Police, NSW Police Force [2024] NSWCATAD 390

People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253

Re Minister for Immigration and Ethnic Affairs ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139

Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188

Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Wollondilly Shire Council v Styles [2024] NSWCATAP 104

YG & GG v Minister for Community Services [2002] NSWCA 247

YKW v Public Guardian [2025] NSWCATAP 112

Commissioner of Police, New South Wales Police Force (Appellant)

[2025] NSWCATAD 42

1. On 28 March 2024, Police attended the respondent's residence to undertake a safe storage inspection. On a further search of the respondent's property, they found five cannabis plants in the respondent's backyard, as well as dried cannabis leaf in his residence. Police suspended the respondent's firearms licence that day.
2. The respondent was charged with one count of possessing a prohibited drug under s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (Drug Act) and one count of cultivating a small quantity of a prohibited plant under s 23(1)(a) of that Act. On 13 May 2024, having been found guilty of those offences, a 12-month conditional release order (CRO) was imposed on the respondent, with no conviction being recorded.
3. Upon sentencing, the respondent's firearms licence became subject to the discretionary revocation power under s 24(2) of the Firearms Act 1996 (NSW) (Firearms Act). On 7 August 2024, the Commissioner exercised that power and revoked the respondent's AB firearms licence. That decision was affirmed following an internal review on 27 September 2024.
4. Before the hearing at first instance, the respondent was prescribed medical cannabis; which we take to mean cannabis oil.
5. On 14 February 2025, the Tribunal set aside the Commissioner's decision to revoke the respondent's firearms licence (the Decision). The Commissioner appeals from the Decision.
6. Between the date of the Decision and the hearing of the appeal, the CRO expired, on 12 May 2025. This meant that there was a question over the utility of the appeal, in so far as it concerned the discretionary power to revoke a licence on the basis that the respondent was subject to a CRO: there was no extant CRO at the time of the appeal.
7. Further, in so far as the appellant's other grounds are concerned, there was uncontested evidence, at first instance, that the respondent did not use the medical cannabis before or during his use of a firearm.
8. For reasons explained below, we dismiss the appeal.

1. Section 24 of the Firearms Act sets out the grounds upon which a firearms licence may be revoked. Relevantly, the section provides:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or

...

(d) for any other reason prescribed by the regulations.

1. Section 24(2)(a) of the Firearms Act is to be read with s 11(5), which prescribes mandatory reasons for refusing to issue a firearms licence. Section 11(5) relevantly provides:

(5) A licence must not be issued to a person who -

...

(d) is subject to one of the following in relation to an offence prescribed by the regulations -

...

(iii) a conditional release order imposed in New South Wales ...

1. Clause 5(3)(b) of the Firearms Regulation 2017 (NSW) (Firearms Regulation) relevantly provides that the following offences are prescribed:

5 Offences that disqualify applicants

...

(3) Persons subject to community correct orders or condition release orders For the purposes of sections 11(5)(d) and 29(3)(d) of the Act, the following offences are prescribed in respect of a person subject to a community correction order or a conditional release order -

...

(b) An offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulation 2008 ...

10 Possession of prohibited drugs

(1) A person who has a prohibited drug in his or her possession is guilty of an offence.

(2) Nothing in this section renders unlawful the possession of a prohibited drug by -

...

(c) a person for or to whom the prohibited drug has been lawfully prescribed or supplied ...

1. The definition of a prohibited drug is contained in s 3:

prohibited drug means any substance, other than a prohibited plant, specified in Schedule 1.

Cannabis leaf (excluding any exception listed under the matter relating to Tetrahydrocannabinol and its alkyl homologues)

Cannabis oil (excluding any exception listed under the matter relating to Tetrahydrocannabinol and its alkyl homologues)

1. Under the Drug Act, the following definitions apply, in s 3:

cannabis leaf means any plant or part of a plant of the genus Cannabis by whatever name that plant or part may be called, and includes the achene and seed of any such plant, but does not include -

(a) cannabis oil,

(b) any fibre of any such plant or part from which the resin has been extracted, or

(c) cannabis plant.

cannabis oil means any liquid containing tetrahydrocannabinol.

cannabis plant means any growing plant of the genus Cannabis.

cannabis resin means the separated resin (whether crude or purified) obtained from cannabis leaf, but does not include cannabis oil.

1. As cannabis leaf and cannabis oil (as defined) are listed in Sch 1, then, subject to a number of exceptions, including for certain low concentrations of tetrahydrocannabinol (THC), they are prohibited drugs. In the event a person has a prescription to use cannabis oil, this means possession is not unlawful. However, medically prescribed cannabis oil is still (subject to the exceptions) a prohibited drug, as defined under the Drug Act.
2. In summary, an offence in respect of cannabis plant, leaf or oil is a prescribed offence for the purposes of s 11(5)(d). Accordingly, where an applicant "is subject to" a CRO in relation to such an offence (even where there is no conviction recorded) this circumstance would require the Commissioner to refuse to issue a firearms licence. This, in turn, would enliven the discretion to revoke a firearms licence.
3. We pause to note that the appellant accepted that the language used in the relevant provision, "is subject to", reflects the present tense and that for this provision to be engaged, the CRO must be extant at the time of considering the revocation or the issuing of a licence.
4. A firearms licence may also be revoked for reasons provided for in the Firearms Regulation: Firearms Act, s 24(2)(d). This includes if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence: Firearms Regulation, cl 20.

1. There are several aspects to the public interest; however, the only one in contention here concerns public safety and the nature and level of risk that is relevant to the public interest.
2. The Tribunal summarised the principles concerning risk, in the Decision. There is no suggestion that these principles are somehow incorrect.
3. The Tribunal said at [82]-[86]:

"82 The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.

83 In a familiar passage, Hennessy DP in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, [28] said that in terms of 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. Ward was a case on the "fit and proper person" test, but the formulation has been held to apply to the public interest test under s 11(7) as well: Hoffman v Commissioner of Police, New South Wales Police Service [2003] NSWADT 89, [23]; Masterson v Commissioner of Police, New South Wales Police Force [2017] NSWCATAP 206, [130].

84 Since then, Hennessy DP has cautioned against applying that language in a mechanistic way, pointing out in AML v Commissioner of Police [2013] NSWADT 5 that the Ward decision itself had set aside the Commissioner's decision to revoke a firearms licence because her Honour was satisfied that despite the fact that he had assaulted his partner, he was a fit and proper person to have a firearms licence. 'The "virtually no risk" comment was made in the context of the 'fit and proper person' test. It should not be understood as a judicial gloss on the plain meaning of that test, or of the reasonable cause test. The relevant tests are set out in the Firearms Act and comments in cases should not be substituted for those tests' (at [7]).

85 Other cases have pointed out that the question of risk is not to be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66].

86 Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that 'In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration'. Risk to the public includes, of course, risk to the applicant himself_: Kavalieratos v Commissioner of Police, New South Wales Police Force_ [2014] NSWCATAD 117, [74]."

1. The Tribunal concluded, on the question of risk, that restoring the applicant's firearms licence would not involve any "real or appreciable risk to public safety" within the relevant principles: at [87].

1. The Tribunal, at first instance, found that s 24(2)(a) of the Firearms Act applied; giving the Commissioner a discretion to revoke the respondent's licence on the basis that the respondent would be refused a licence of the same kind, had he been applying for one. As noted above, at the time of the Decision, the respondent was subject to a CRO in relation to offences prescribed by the regulations: Firearms Act, s 11(5)(d)(iii). The relevant offences were in respect of a prohibited drug and a prohibited plant within the meaning of the Drug Act: Firearms Regulation, cl 5(3)(b).
2. The Tribunal noted that since the time of the search, the respondent was prescribed medical cannabis, for back pain. This was consistent with the evidence before the Tribunal which included the respondent's affidavit and results of his MRI scan, which confirmed a "broad based posterior disc bulge". Also in evidence, were copies of prescriptions and correspondence from Alternaleaf; which include references to the respondent having been prescribed medical cannabis. At least one letter, dated 9 May 2024, confirming prescription details, refers to the delivery mechanism of an oil vaporiser and includes a reference to THC.
3. Additionally, there was evidence from the respondent in his affidavit, dated 4 December 2024, stating as follows:

"Currently, I utilise CBD oil only, which contains no THC.

I do not use the CBD oil before or during use of firearms."

1. The respondent was not cross examined on either of those statements. However, as to the first statement, the Tribunal records that this was denied in "post-hearing submissions" (at [67]).
2. The Tribunal considered whether the discretion in s 24(2) should be exercised in favour of affirming or of setting aside the revocation decision, taking into account the Appeal Panel's decision in Commissioner of Police, New South Wales Police Force v Hogan [2024] NSWCATAP 77 (Hogan) at [54]-[57].
3. The Tribunal said:

"78 The Drug Misuse and Trafficking Act contraventions in the present case, although prescribed under the Act, did not involve the handling or storage of firearms. It could be argued that in the circumstances they had little direct bearing on public safety. At all events, this is not a case of an applicant seeking the benefit of the discretion in relation to a first firearms offence, as the applicant has an unblemished firearms record and has never come under adverse notice for any matter involving firearms use or storage.

79 The applicant's genuine medical need for a substance that could help manage his back pain from a workplace injury, his prompt action to rectify his legal position by obtaining a medical marijuana approval, the relatively short duration of the offences, the applicant's cooperative and courteous interactions with attending police, his otherwise unblemished record apart from some traffic offences 10 years earlier, the fact that his offences did not directly involve firearms use or storage and his particularly supportive character evidence combine to constitute circumstances justifying the position that the applicant as licensee should retain his licence until its expiry, in accordance with the principles articulated in Hogan. I therefore find in relation to the CRO for prescribed offences that the discretion in s 24(2) should be exercised in favour of setting aside the revocation decision."

1. The Tribunal also considered whether there was a basis to revoke the respondent's licence on public interest grounds: Firearms Act, s 24(2)(d); Firearms Regulation, cl 20. As the Tribunal noted, consideration of the public interest encompasses a number of different factors including public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16 at [33].
2. In relation to the respondent's prescription of medical cannabis, the Tribunal was directed to the recent decision of Parkes v Commissioner of Police, NSW Police Force [2024] NSWCATAD 390 (Parkes), where the Tribunal said in relation to cannabis use (at [51]):

"51 In the absence of any medical evidence, I am not able to be satisfied that there would be virtually no risk if the Applicant was to be issued with a firearms licence whilst using cannabis, including medicinal cannabis."

1. The Tribunal in Parkes also said in relation to the safety concerns associated with the applicant's driving with cannabis in his system (at [49]):

"Further, it is clear that whilst the Applicant acknowledged that he had been told by his medical practitioner that it was unlawful to drive with cannabis in his system, his evidence was to the effect that he used medicinal cannabis at least three to four times per week, continued to drive on the weekend, and on occasion during the week. In the absence of any medical evidence as to the amount of cannabis that remains in the Applicant's system after taking his dose of medicinal cannabis, the length of time that it remains in his system, and the effect that it may have on his driving, there is a real concern about the Applicant's compliance with legislative requirements and traffic regulations related to the use of cannabis and driving. The Applicant's admitted conduct also raises concerns about his safety whilst driving and the safety of the public."

"94 In the present case also there is a lack of medical evidence and the tribunal cannot speculate on the significance, if any, in a firearms licensing context of the references to THC in the treatment plan. While there is no burden of proof on the respondent, the other evidence strongly supports the applicant's position, whereas in Parkes the applicant's case was weak.

95 The Alternaleaf disclaimer about driving or operating heavy machinery while using medication containing THC is similar to the caution displayed on many prescribed medications and adds little to the resolution of the matter."

1. Ultimately, the Tribunal concluded that, in relation to the CRO for prescribed offences, the discretion in s 24(2) should be exercised in favour of setting aside the revocation decision (at [79]) as extracted above. In relation to the public interest considerations, those also favoured setting aside the revocation decision. The Tribunal said at [98]:

"As Ms Moses pointed out, there are other ways in which the Harts could protect their property from ferals and vermin. Mr Hart could himself apply for a firearms licence, for example. But while private interests cannot prevail over public safety, giving the applicant access to their property for that purpose would not, on the evidence, give rise to any real or appreciable risk to public safety, as that criterion is understood in Webb. I therefore find that public interest considerations favour exercising the statutory discretion to set aside the revocation decision."

1. An appeal may be brought, under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), on a question of law, or with leave of the Appeal Panel, on any other grounds. The question of law must be a pure question of law: YKW v Public Guardian [2025] NSWCATAP 112 at [56]; Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25]; Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [23]. Further, as it is the subject matter of the appeal, the question of law must be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22]; Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [96]- [97].
2. These principles were accepted by the appellant.
3. However, it was also recently identified in Unique, as follows (at [25(10)] and [25(11)]):

"An appeal is 'on' any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid. Whilst the following cases were decided in a different context to the present, see Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33.

An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal."

1. Particularly relevant to this appeal is the principle taken from the cases just referred to, that (absent leave to appeal) the question of law is the subject matter of the appeal. Further, as an appeal is against a decision (that is to say, orders) not reasons, the question of law must be capable of affecting the orders. Accordingly, where the question of law is not capable of affecting the orders, then it does not arise on the appeal and there is no appeal as of right.
2. The appellant did not accept this last stated principle, to which we turn in greater detail below, in relation to Ground 1.

1. The principles governing an application for leave to appeal under the NCAT Act are well‑established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. In summary and without intending to be prescriptive, it would ordinarily only be appropriate to grant leave where there is a question of law, an issue of principle, a question of general public importance, or an injustice which is reasonably clear. It is necessary that the ground goes beyond what is merely arguable.

1. There is an additional consideration when the appeal is from a discretionary decision, as discussed in House v The King (1936) 55 CLR 499; [1936] HCA 40.
2. A discretionary decision is one upon which minds might reasonably and legitimately differ: there is no unique outcome or no outcome which is more correct than another. In such a case, appellate review is limited to what have come to be known as House v The King grounds. Such an approach is to be distinguished from the approach in appeals where the correctness standard applies. The correctness standard applies in cases where there is only a single legally correct outcome, as was explained in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551-2; [1979] HCA 9.
3. When an appeal is concerned with a discretionary decision, any question of law or ground on which leave to appeal is sought, must be one capable of enlivening a House v The King style ground. This was recently the subject of consideration by the Appeal Panel in GTK v NSW Treasury [2025] NSWCATAP 174 at [18]- [22].
4. House v The King grounds include: a mistake of law; a material mistake of fact; taking into account an extraneous, or irrelevant considerations; or failing to take into account a relevant, in the sense of mandatory, consideration. Further, whilst it may not be possible to discern exactly what error occurred, if the decision is unreasonable, viewed from the perspective that the right question was addressed, the relevant law was applied, all relevant and no irrelevant considerations were taken into account, then error may be inferred.
5. The appellant accepted that the appeal was from a discretionary decision. At least at a practical level, we had some concerns that a decision under cl 20 of the Firearms Regulation is discretionary, despite the use of the word "may"; because it is hard to conceive of any factor that might warrant a decision not to revoke a licence, when it has been determined that it is not in the public interest for a licensee to continue to hold a licence. In these circumstances, the use of the word "may" might not only be an empowering word but becomes a "must" or a "shall": Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134-5 (per Windeyer J); see the discussion in Health Care Complaints Commission v Sathiyapal [2025] NSWCATOD 41 at [30]- [31]. Nevertheless, it was not necessary for us to decide this point. We acknowledge that the decision to revoke a licence on the grounds that it is not in the public interest for the licensee to continue to hold the licence, has previously been treated as discretionary: Masterson v Commissioner of Police, New South Wales [2017] NSWCATAP 206 at [76].

1. As discussed below, a question arises as to whether there is utility to Ground 1. Before deciding that issue, it is necessary to consider the relevant principles.
2. A proceeding, or an aspect of it, will lack utility if its determination serves no practical purpose. One way a proceeding or issue can become moot is if, due to supervening events or circumstances, there is no longer a controversy between the parties: Hunter Development Corporation v Save Our Rail NSW Incorporated (No 2) [2016] NSWCA 375 (Hunter Development) at [40].
3. As a matter of general principle, courts will ordinarily refuse to determine issues which no longer have utility or have become moot. In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [47], the High Court explained:

"Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions."

1. Courts have the power to dismiss or stay proceedings which involve issues that are not live between the parties, so as to protect the court's processes from being abused. This includes the power to dismiss an appeal which was brought as of right, "if later events show that the questions involved in it have become moot between the parties": Jardin v Metcash Ltd [2011] NSWCA 409 (Jardin) at [30]-[31].
2. The Tribunal likewise has the power to summarily dispose of issues which have no utility. Section 36(1) the NCAT Act provides that the guiding principle for proceedings under the Act is to "facilitate ... the real issues in the proceedings". This imperative applies to "the resolution of the issues between the parties": NCAT Act, s 36(4). The Tribunal has procedural powers under ss 36 and 38 to ensure that proceedings meet the guiding principle: Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188 at [160]- [162].
3. While the general rule is that proceedings which have become moot should not be entertained, there is a line of authority which suggest that courts nevertheless have a discretion to determine matters which have been regularly commenced; notwithstanding that there is no longer a live substantive issue between the parties: People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253 (PWD); Jardin; Hunter Development; Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573; [2000] FCA 420 (Industrial Equity).
4. Those cases identify the following factors can be relevant to the exercise of that discretion, on an appeal:

(1) Where there is a live issue of costs between the parties and resolution of the issue depends on determining the appeal on its merits: Hunter Development at [27]-[38], [46], [56]; Jardin at [32].

(2) Where the appeal raises an important question of principle which will have ramifications for other cases: PWD at [13]-[15]; Jardin at [32]; Attorney-General for the State of New South Wales v XY [2014] NSWCA 466 at [118]- [119].

(3) Where appeals have been brought in the public interest and there is "an issue of construction having significance beyond the immediate rights of the present parties and there are serious arguments capable of being advanced as to the correctness of the judgment": Industrial Equity at [16].

1. In Jardin, Campbell JA noted that the discretion should be exercised sparingly, stating (at [35]):

"It could only be in rare circumstances, if ever, that a court was justified in reaching a decision on legal question that had no practical consequences for either of the parties: Gardner v Dairy Industry Authority of New South Wales [1977] 18 ALR 55 at 60, 69."

1. The foregoing provides some basis to suggest that the Tribunal, too, has a narrow discretion to determine a matter, which was regularly commenced, but where there is no longer a live substantive issue between the parties. The question of costs might provide such justification, although, it is not always necessary or appropriate to finally determine the merits of a matter in order to determine costs: Re Minister for Immigration and Ethnic Affairs ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624 (McHugh J).
2. The discretion of the Appeal Panel to consider a moot appeal was discussed by the Appeal Panel in Secretary, Department of Communities and Justice v Feeney [2021] NSWCATAP 139 at [7]- [25]. It was there noted that the question of costs and whether an error of principle is raised might provide the basis to exercise the discretion. Nevertheless, the Appeal Panel declined to entertain the moot appeal in that case. It dismissed the appeal under s 55(1)(b) of the NCAT Act, as misconceived or lacking in substance.
3. This treatment is consistent with an approach taken earlier by the then Administrative Decisions Tribunal, in AVS Group Australia Pty Ltd v Commissioner of Police, NSW Police Force [2012] NSWADTAP 24 (AVS Group). There, the Appeal Panel considered whether it had jurisdiction (authority to decide, as opposed to power to make relevant orders) to entertain an appeal from a decision of the Tribunal to affirm the revocation of a licence, in circumstances where, at the time the Tribunal delivered its decision, the subject licence had expired. The Appeal Panel summarised the position in relation to expired licences as follows (at [22]):

"In my view the following propositions emerge from these authorities:

(i) The mere fact that the entitlement, licence or authority that was the subject of the reviewable decision has ceased to be operative by effluxion of time does not, of itself, mean that a review tribunal is no longer competent to deal with the review application.

(ii) The reviewable decision may still be reviewed with a view to deciding whether it was the correct and preferable decision in the circumstances. In the case of this Tribunal, see the ADT Act, s 63(1) and (2), which provide:

63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(iii) The question of what order may be appropriate to give effect to the Tribunal's decision in the circumstances where the underlying entitlement has ceased to be operative is a separate matter. If the Tribunal is of the view that the administrator did not make the correct and preferable decision in the circumstances, it could, for example, make an order setting aside the decision.

In that regard, s 63(3) provides:

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

66 Effect of a review decision

(1) A decision determining an application for a review of a reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision.

(2) If any such decision varies, or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken:

(a) to be the decision of the administrator (other than for the purposes of a review under this Chapter), and

(b) to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise.

(iv) A proceeding may lose the character of a live dispute as it progresses through the tiers of the dispute resolution system. There may be no utility in the system continuing to deal with the dispute, for example because any order would have no practical effect or the review applicant no longer has a legitimate interest in the outcome of the application.

(v) Care should be taken once proceedings have been properly commenced not to address these questions by reference to standing requirements expressed as preconditions to commencement."

1. The provisions of ss 63 and 66 are now found in the Administrative Decisions Review Act 1997 (NSW) and apply to administrative review proceedings in this Tribunal, including internal appeals.
2. Ultimately, the Appeal Panel considered the issue was one of power and not one of authority (jurisdiction).
3. The Appeal Panel reiterated that there is no fixed rule which requires that inutile applications be dismissed as a matter of course and that the Tribunal retains a discretion as to how to deal with such applications, to be exercised in accordance with the Tribunal's case management powers: AVS Group at [24]-[25].
4. We accept, as a general proposition, that where a matter has been regularly commenced, but subsequent events mean that there is no longer a live issue as between the parties, the Tribunal may have authority to determine the matter. The real question is what orders the Tribunal would have power to make; and why.
5. A further question, discussed below, is whether a moot ground of appeal raises a question of law, or whether leave is required to rely upon it.

"Ground 1

The Tribunal failed to determine the ground of revocation provided for by s 24(2)(a) of the Firearms Act 1996 (the Act), when read with s 11(5)(d) of the Act and cl 5(3) of the Firearms Regulation 2017 (the Regulation), in accordance with the requirements of the statute as explained in Commissioner of Police v Hogan [2024] NSWCATAP 77 (Hogan).

Ground 2

The Tribunal erred at law when it reasoned at [92]-[96] that:

[a] the decision in Parkes v Commissioner of Police [2024] NSWCATAD 390 (Parkes) was relevantly distinguishable from the case before it;

[b] the absence of medical evidence on the question of whether the applicant could safely retain access to firearms while using medicinal cannabis was a matter against its revocation;

[c] in any event, "other evidence" strongly supported the applicant (presumably, evidence unrelated to the above question).

Ground 3

To the extent the Tribunal found the applicant could safely retain access to firearms while being subject to a treatment plan including medicinal cannabis, there was no evidence to support that finding.

This raises a "pure" question of law: see Hogan at [18], [23], referring to Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156D-F and Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13].

Ground 4 (in the alternative to Ground 3)

To the extent that the Tribunal did not make a finding either way as to whether the applicant could safely access firearms while subject to a treatment plan that included medicinal cannabis, it could not properly be satisfied that there was no outstanding risk to public safety: cf. Parish at [87], [96], [98].

The appellant submits this raises a "pure" question of law; namely, whether the Tribunal misconstrued its statutory task. However, if that is wrong (for example, because the error depends on an analysis of the facts: cf. Orr at [109]), the appellant seeks leave to rely on this ground under s 80 of the CAT Act."

1. The respondent sought to adduce evidence on the appeal by way of an affidavit filed 22 May 2025, updating the Appeal Panel as to his use of medical cannabis. Annexed to the affidavit was a letter which appears to have been emailed to the Tribunal's Registry and the respondent's solicitors on 12 February 2025, attempting to update the Tribunal at first instance as to the position with respect to the respondent's use of cannabis. The Tribunal did not refer to this correspondence: notably, the Decision was delivered a very short time later, on 14 February 2025.
2. The Commissioner objected to the receipt of this evidence on the grounds that they would be prejudiced because they should be given an opportunity to cross-examine the respondent in relation to it; and in any event, it contained some inconsistencies with respect to the evidence given at the first instance hearing. The additional evidence was described as not being fresh evidence (in the sense of being not reasonably available at the first instance hearing) and should have been provided to the Tribunal at first instance, as a central aspect of the evidence was something which was known to the respondent at the time of the hearing, on 30 January 2025.
3. We note that the respondent, self-represented at the time, did indeed attempt to file the material the subject of the 12 February correspondence, albeit after the conclusion of the hearing. Further, some explanation for the delay was provided.
4. Ultimately, however, we accept that the appellant is prejudiced having regard to the practical inability to cross-examine the respondent at the hearing of an appeal. As to this last-mentioned aspect, we accept that the directions made before the hearing of the appeal foreshadowed that the Appeal Panel would decide whether to admit the additional evidence or not and therefore the appellant could have prepared for cross examination, in the event the Appeal Panel decided to admit the evidence. Nevertheless, the hearing of the appeal was not the opportune time to do so.
5. The Appeal Panel declines to admit the additional evidence.

1. This ground concerns the Tribunal's determination that, despite the circumstance that the respondent was subject to an extant CRO, and the Commissioner may therefore revoke the licence, the Tribunal was otherwise satisfied that the correct and preferable decision was not to revoke the licence (the Tribunal also being satisfied it was not against the public interest to so do).
2. The appellant submitted that the Tribunal set the bar too low when considering whether there was sufficient warrant not to exercise the discretion to revoke the licence, despite the extant CRO; and relied on Hogan. The appellant submits that the circumstances adverted to by the Tribunal were not capable of satisfying the statutory threshold for exercising the discretion not to revoke the licence, once the basis for revocation had been established.
3. The preliminary questions for the Appeal Panel are:

(1) whether this ground has any utility;

(2) whether there is a question of law arising on the appeal such that the appeal is as of right; and if not,

(3) would the Appeal Panel grant leave to appeal in relation to Ground 1.

1. In turning our minds to the first two of these three questions, we assume, without deciding, that this ground raises a House v The King style error and concerns a question of law. That question being whether the Tribunal misapprehended the statute.

1. The appellant accepts that as the CRO has expired, it no longer supports the exercise of the discretion to revoke the licence. The appellant nevertheless maintains that there is utility in the Appeal Panel determining whether the Tribunal, at first instance, erred as contended. The utility is said to be found in the subsisting controversy between the parties as to whether the licence should have been revoked in the first place; and the Appeal Panel's decision will stand as important guidance as to how a discretion of this kind ought to be exercised, having regard to the appropriate threshold, to ensure it is exercised correctly in future. The appellant contends that they are not seeking mere advice.
2. The respondent, on the other hand, maintains that there can be no utility in determining Ground 1, in circumstances where this basis for revoking the licence has expired.
3. The Appeal Panel rejects the appellant's submissions that there is indeed a live issue as between the parties as to whether the licence should have been revoked in the first place, on the grounds of the CRO. No substantive reason for that submission was provided and we cannot conceive of any basis on which a decision to the effect that the licence should or should not have been revoked in the first place, can have utility as between the parties. In these proceedings, for instance, the respondent does not seek compensation for past wrongs (nor could he). Additionally, there is no application for costs.
4. Nonetheless, we accept that whilst any determination of Ground 1 is moot as between the parties and of no utility to the respondent, there may be some practical benefit to the appellant and potentially other litigants and decision-makers, in the Appeal Panel deciding and providing reasons for that decision, as to whether the Tribunal erred in relation to the threshold it set. However, any such reasons for decision would have the effect of constituting mere advice, or guidance. It would in no sense be binding.
5. The Appeal Panel is satisfied that Ground 1 is moot and of no utility.

1. As noted above, absent leave to appeal, the question of law is the subject matter of the appeal. As an appeal is against orders and not reasons, an appeal that concerns a question of law that is not capable of affecting the orders appealed because of the expiry of the CRO, cannot comfortably be said to be an appeal "on" that question of law. We have not been persuaded that what was said in Unique at [25(10)] and [25(11)], as to the need for a question of law to be capable of affecting orders, is incorrect. We therefore proceed on the basis that to constitute a question of law on the appeal, it must be capable of affecting orders.
2. Even if we agreed with the appellant's contentions as to error, this could not affect the orders made by the Tribunal. Even if we accepted Ground 1 as correct, the orders at first instance could not be set aside (leaving aside, for the purposes of deciding this aspect of the appeal, the grounds in relation to public interest). To so do would reinstate the original decision, affirmed on internal review, to revoke the licence. However, Ground 1 would not provide a lawful basis to achieve that result. There is simply no CRO in place that could justify the revoking of the licence or the setting aside of the order at first instance.
3. Ultimately, the issue is what is the correct and preferable decision at the time of the Tribunal's determination, whether or not it was the correct and preferable decision at the time of the original decision. In YG & GG v Minister for Community Services [2002] NSWCA 247, the Court said at [25]:

"In other words, contrary to what the Appeal Panel said, my opinion is that, on a merits review by the Tribunal or by the Appeal Panel under s.115, there is no two-stage process: the issue for determination is what is the correct and preferable decision at the time of the determination, irrespective of whether it was or was not the correct and preferable decision at the time it was originally taken."

1. To the extent that the cases referred to above in relation to utility proceeded on the basis that there is a discretion to hear and determine a case that has no utility as between the parties, or no substantive utility, they do not answer the question of whether there is a question of law that arises "on" the appeal as apprehended by s 80 of the NCAT Act. Here, Ground 1 does not raise a question of law that arises "on" the appeal; as it does not raise a question capable of affecting the orders.
2. Accordingly, there is no appeal as of right in relation to Ground 1.

1. For the purposes of determining leave to appeal, we are prepared to accept that the questions of whether the Tribunal set the bar too low or whether the circumstances adverted to by the Tribunal could never be sufficient to warrant the exercise of discretion not to revoke a licence, touch upon important issues of principle that have wider application than simply to this case. Nevertheless, the operation of the discretion was recently the subject of consideration by the Appeal Panel in Hogan at [54]-[57]. The appellant, effectively, maintains that the Tribunal erred in its application of, or in distinguishing, Hogan. Accordingly, Ground 1 is more concerned with the misapplication of the accepted principles adverted to in Hogan, than the misconstruction of the relevant principles. Further, there is no prospect that the appeal on this ground could affect the orders the subject of the Decision. Even if we were satisfied that the Tribunal erred as contended, there is no clear injustice in the sense discussed in Collins v Urban; as the orders cannot be affected.
2. The appellant challenges the reasoning of the Tribunal in determining that the discretionary revocation decision should be set aside, on the grounds that there was sufficient warrant to refuse to revoke the licence, notwithstanding that the power to revoke existed by reason that, at the time of the hearing, the respondent was subject to a CRO for a prescribed offence. As the CRO has now expired, Ground 1 raises a moot point.
3. If leave were to be granted on this point, the appeal would suffer from the same lack of effectiveness as discussed above under the heading "On a question of law". We are therefore not satisfied that there is justification to grant leave to appeal in respect of Ground 1.
4. For the foregoing reasons, leave to appeal on Ground 1 is refused.

1. As each of these grounds concern that part of the Decision that relates to whether the licence should be revoked on grounds of public interest, they were dealt with together at the hearing of the appeal. We continue that approach.
2. These grounds all concern whether the Tribunal erred in relation to the application of the public interest test. In particular, whether the Tribunal could have been satisfied that there was "virtually no risk" (in the sense explained above) posed by the respondent's use of medical cannabis.
3. The appellant submits, as follows, that each of these grounds raise a question of law:

(1) Ground 2 concerns whether the Tribunal adopted a path of reasoning that was "irrational, or not lawfully open to it" as comprehended by Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332 and related authorities. A question whether the Tribunal acted unreasonably would raise a question of law: John Prendergast & Vanessa Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 (Prendergast) at [13]; Unique at [30].

(2) Ground 3 is that the Tribunal made a critical finding in the absence of any evidence. This critical finding is that the Tribunal was satisfied there was "virtually no risk to public safety" arising from the respondent's ongoing use of medical cannabis, while having access to firearms. A question whether a critical finding was made in the absence of any evidence would raise a question of law: Hogan at [23]; Prendergast at [13]; Unique at [30].

(3) Ground 4 is put in the alternative to Ground 3, in the event the Appeal Panel is not satisfied that the critical finding the subject of Ground 3 was made, at all. Ground 4 contends that the Tribunal erred by failing to determine, one way or another, whether there was virtually no risk to public safety arising from the respondent's ongoing cannabis usage. The question of law said to arise on that premise, is whether the Tribunal failed to discharge its statutory function or whether it failed to answer the question posed by the statute: Commissioner of Police, NSW Police Force v Cseszko [2016] NSWCATAP 194 at [6], [21].

1. The respondent submits that the factual foundation for these questions has changed, but this submission depends on the Appeal Panel having accepted the additional evidence, which we have not. Accordingly, we reject that submission of the respondent.
2. In the alternative, the respondent submits that the above-mentioned questions involve questions of mixed fact and law or otherwise involve speculation as to facts not found.
3. In particular, insofar as the appellant contends that the path of reasoning was irrational or not lawfully open, the respondent submits, in effect, that this proceeds from a false premise about the findings of the Tribunal. The respondent apprehends the ground to really be concerned with the lack of medical evidence; but says that it was appropriate for the Tribunal not to speculate on the absence of such evidence. Further, so it is submitted, it is inappropriate for a party to ask the Tribunal to speculate or make findings based on an absence of evidence. It was also submitted that a party should not be entitled to rely on their own failure to adduce evidence, as a ground of appeal.

1. With respect to Ground 2, the appellant contends that whilst the Tribunal was not bound to follow Parkes, the way the Tribunal distinguished it was irrational. The differences were said to be not material to the question of whether the Tribunal could be satisfied that there was virtually no risk to public safety from the respondent's use (or access to) medical cannabis.
2. The Tribunal identified the differences at [92]-[94] of the Decision. These included: in Parkes, the applicant had for some years recreationally used cannabis, he had recent traffic infringements, he had been advised by his medical practitioner not to drive after taking the cannabis but indicated that he sometimes did so; and it also appeared that had he used the drug while shooting under his Minor's Permit. In the absence of medical evidence, the Tribunal affirmed the decision to revoke the licence.
3. On the other hand, here, the Tribunal said (at [94]) that whilst there was a lack of medical evidence, the "other evidence strongly supports the applicant's position, whereas in Parkes the applicant's case was weak".
4. The "other evidence" is not specified; and the parties do not seem to agree as to what the "other evidence" constitutes, or on the effect of the other evidence. In particular, the respondent does not accept that a risk, associated with the respondent's prescription to medical cannabis, was established. Accordingly, were matters to rest here, we would be satisfied that Ground 2 does not raise a question of law, as it involves determination of disputed facts.
5. However, the appellant contended that the mere fact that the respondent continued to be treated with cannabis for pain, was in and of itself sufficient to establish the risk; as he had access to and possession of a prohibited drug. It was submitted that the Tribunal appeared to accept that the risk existed, at [94]. The risk was also said to be notorious. In light of that, so it was submitted, no "other evidence" (or at least no evidence other than medical evidence) could overcome this risk
6. Reading Ground 2 consistently with the just mentioned submission of the appellant, it, in effect, raises the question of whether the Tribunal's conclusion that there was no (relevant) risk to public safety was irrational, because the risk (of whether the applicant could safely retain access to firearms while using medicinal cannabis) was incapable of being addressed by any "other evidence" supportive of the applicant.
7. However, the appellant's submission relies on the foundation that the Tribunal accepted that there was a risk arising from the mere fact that the respondent had a prescription and therefore access to medical cannabis, which was required to be overcome by "other evidence". It is to be recalled that the Tribunal accepted the respondent did not use cannabis while using firearms: at [67]. We are not satisfied that the Tribunal accepted the risk.
8. At [87] the Tribunal expressly adopted the same reasons for not revoking the licence on the grounds of the CRO, for being satisfied that there was no "real or appreciable risk to public safety". The Tribunal did so after a nuanced analysis of the principles concerned with public interest (at [80]-[86]) and express acknowledgement of the importance of public safety (including to the respondent himself) and an acknowledgment that the Tribunal must be satisfied that there was "virtually no risk" in the sense of being satisfied that there was no "real and appreciable risk" as opposed to a "minimal, fanciful of theoretical risk". This supports our conclusion that the Tribunal did not, in fact, accept, as pressed by the appellant, that mere access to medical cannabis raised a risk that was required to be countered by the respondent.
9. As to the appellant's submission that it is "notorious" (irrespective of the circumstances) that a person who has been prescribed medicinal cannabis, would pose a risk to public safety if they were to be given access to a firearm, the Appeal Panel rejects that submission. First, it is only if cannabis oil answers the statutory definition that it is a prohibited drug. This depends on the level of THC it contains. This depends on a factual premise which was neither found by the Tribunal nor agreed before the Appeal Panel. Second, the Appeal Panel is not satisfied that the risk is indeed notorious. In effect, the submission is that a risk is established by the mere fact, alone, that a person has access, in prescribed doses (and irrespective of the dosage), to medical cannabis. We do not consider that to be a risk that is so notorious that it should be assumed by the Tribunal. Particularly here, where it was uncontroversial that the respondent did not use cannabis while using a firearm, it is not established that access to cannabis constitutes a risk.
10. Accordingly, the factual premise for Ground 2 is contrary to that as found by the Tribunal and is not agreed as between the parties. Accordingly, Ground 2 does not raise a question of law.

1. As this question concerns unreasonableness in decision making, it raises a House v The King style ground, and raises an important point of principle. However, as it depends on a factual premise which was not found or agreed; and in light of the uncontested position regarding use of the medical cannabis, we are not satisfied that there are sufficient merits to warrant the granting of leave to appeal.
2. As noted above, the Tribunal concluded (at [87]) that there was "no real or appreciable risk to public safety". The conclusions upon which this was based included an express acknowledgement that the respondent had been prescribed and was a user of "medical marijuana". However, given the uncontroverted evidence and the Tribunal's conclusion (at [67]) that the respondent "does not use the oils before or while shooting," it was not irrational to distinguish Parkes. The absence of medical evidence in a case where the applicant for a firearm licence accepts using the prescribed substance whilst driving despite doctors warnings to the contrary and accepts that he has used the substance whilst shooting under his Minor's Permit (as was the case in Parkes), is distinguishable from a case where the uncontradicted evidence and findings of the Tribunal is that the respondent does not use the substance whilst using a firearm (as is the case here). The analysis of the Tribunal concerning Parkes cannot be read devoid of the analysis of the public interest in the earlier parts of the Decision. There is no apparent irrationality.
3. Leave to appeal on Ground 2 is refused on the grounds of lack of prospects.

1. As to Grounds 3 and 4, these are raised in the alternative, depending on the proper construction of the Tribunal's reasons and whether the Tribunal:

(1) "found the applicant could safely retain access to firearms while being subject to a treatment plan including medicinal cannabis" as contended as part of Ground 3 (in which case Ground 3 is apposite); or

(2) did not form a view on that point and nevertheless concluded it was not against the public interest for the respondent to access firearms (in which case Ground 4 is apposite).

1. Before turning to whether Grounds 3 or 4 raise a question of law, it is appropriate to determine which one is apposite, having regard to the Tribunal's reasons.
2. As discussed above, the Tribunal's conclusion (at [87] that there was "no real or appreciable risk to public safety" was made after a nuanced analysis of the law and after having reached the conclusions it did (at [79]) concerning, amongst other things, the respondents use of "medical marijuana" which included (as recorded at [67]) that the respondent "does not use the oils before or while shooting". Accordingly, the Appeal Panel is satisfied that the Tribunal indeed reached a conclusion about the risk to public safety in relation to the respondent's use of medical cannabis. This is to say that the Tribunal indeed formed a conclusion that it was safe for the respondent to have access to firearms while on a treatment plan for medical cannabis. Ground 3 is therefore apposite and Ground 4 inapposite.
3. With respect to Ground 3, the Appeal Panel accepts that whether the Tribunal could be satisfied that the applicant could safely retain access to firearms while being subject to a treatment plan including medicinal cannabis, when there was no evidence to support that finding, raises a question of law: Hogan at [23] referring to Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156D-F and Prendergast at [13].

1. To succeed on a ground of no evidence, there must be no evidence at all that is probative of the conclusion: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; [1990] HCA 33. Such a ground is not made out if the argument is merely that the weight of the evidence was not sufficient to sustain the finding.
2. As previously mentioned, the Tribunal had evidence that the respondent did not use medical cannabis and firearms at the same time. This was uncontroverted evidence and was accepted by the Tribunal. This was evidence relevant to the question of whether the respondent could safely retain a firearm's licence, in the circumstances.
3. At heart, the appellant's submission was that once it is known that a person has access to medical cannabis, the only evidence that could overcome the notorious risk arising from this fact, is medical evidence. We reject this submission for the following reasons:

(1) First, we have rejected the proposition that the risk is notorious.

(2) Secondly and decidedly, in this case, there was evidence that the respondent did not use cannabis and firearms simultaneously. This fact was not in contest. The Tribunal did not reach a conclusion based on no evidence.

1. As Ground 4 was run in the alternative to Ground 3 and does not arise on the Decision, as we have construed it, it does not raise a question of law on the appeal: it is an arid question. Further, as it is of no utility, there is no warrant to grant leave to appeal on it.
2. Ground 4 is dismissed.

1. Ground 1 is dismissed on the basis that it does not raise a question of law "on" the appeal; and does not have utility to warrant leave to appeal. Ground 2 does not raise a question of law and has insufficient prospects to grant leave to appeal. Ground 3 raises a question of law, but fails as a matter of substance. Ground 4 was run on the alternative factual scenario to Ground 3 and therefore does not arise and is dismissed as being inutile.

(1) Leave to appeal is refused.

(2) The appeal is otherwise 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.