Commissioner of Police, New South Wales v Martin; Martin v Commissioner of Police, New South Wales

NCAT Appeal Panel|2017-07-25

Introduction

These appeals relate to a decision of the Administrative and Equal Opportunity Division made on 30 March 2017 concerning an application for review under s75 of the Firearms Act, 1996 (Firearms Act) of a decision of the Commissioner of Police, New South Wales (Commissioner). The decision related to issuing Permit No 411520772 (permit) to Paul Martin as nominated person for Paul Martin's Australian Military History Pty Ltd.
The Permit provides the following authority: This permit authorises the permit holder to possess and display firearms (including prohibited and imitation firearms) of a kind that was used as a weapon of war, on locations specified on this permit for the purpose of commemorating Australian Military History.
The Permit was subject to conditions. In its original form these conditions were: 1. The permit holder must sign this permit upon receipt. 2. The permit only authorises the display of firearms registered to Theatrical Armourer's Dealer's Licence 410111512. 3. Only firearms used in that particular war being commemorated may be displayed. 4. This permit does not authorise the use of any firearm. 5. The permit holder must seek permission to display from local police prior to any display at any commemorative ceremony. A copy of that permission must be forward (sic) to the Firearms Registry no later than 3 business days prior to the event. 6. The permit holder must ensure that any prohibited firearm on display is rendered permanently inoperable as prescribed by clause 34(3)-(6) of the Firearms Regulation 2006 (Regulation). 7. All firearms must be in locked display cases or be secured by means of chain or multiple strand steel cable through trigger guard of the firearms and secured to display tables or display racks by lock or other secure means. 8. The permit holder must ensure that any other firearm forming part of the display is rendered temporarily inoperable by: Removing the bolt or firing mechanism and keeping it separate from the firearm in a locked container that is of an approved type or, Using a trigger lock of an approved type. 9. The permit holder must ensure that members of the general public are not permitted entry into the display area until all firearms are secured. 10. The permit holder must not allow intoxicated persons or alcohol into the display area. 11. The permit holder must not unpack or pack up firearms unless all members of the public have left the area or the permit holder has police assistance. 12. The permit holder must return all firearms to the permit holder's safe storage facility at the conclusion of each day.

Notices of Appeal and history of appeal proceedings

Initially, the Commissioner filed appeal AP 17/19237 (Commissioner's appeal). Subsequently, Martin filed appeal AP 17/33603 (Martin's appeal) on 27 July 2017.
The Commissioner's appeal challenged order 1, deleting condition 6 and including a new condition 6 and order 3, amending condition 8 of the Permit. The grounds of appeal were that the Tribunal: 1. Misconstrued or misapplied the public interest test in taking into account irrelevant considerations. 2. Misconstrued and misapplied Part 6 of the Regulation. 3. Imposed a new condition 6 that was illogical and irrational in the circumstances. 4. Made findings of fact on the basis of no evidence or exercising adversely an administrative discretion without any factual foundation.
Martin's Notice of Appeal was filed after the hearing of the Commissioner's appeal which occurred on 25 July 2017. The appeal was filed out of time. In the appeal, Martin challenged order 4 and said it did not adequately reflect the reasons of the Tribunal at [57] concerning displays at RSL Clubs. Consequently, Martin sought an order that the permit be amended to include "Commemorative Displays at or on behalf of RSL Clubs, as may be requested".
In relation to Martin's appeal, the Appeal Panel notes directions were made on 17 August 2017 in the following terms: 1. The time for complying with order 3 made by the Appeal Panel on 25 July 2017, is extended to 7 days after the Tribunal has determined the application made by Paul Martin Australian Military History under s 63 of the Civil and Administrative Tribunal Act, 2013 (NCAT Act). 2. The Appeal Panel notes that if the application made by Paul Martin Australian Military History under s 63 of the NCAT Act is unsuccessful, each party consents to the cross-appeal lodged by Paul Martin Australian Military History Pty Ltd, being dealt with "on the papers" without an oral hearing.
Apparently the matter was not finalised by the Tribunal and we have been asked to determine Martin's appeal.

Submissions and hearing of the appeal

It is convenient to separately deal with the submissions made by the parties in respect of each of the appeals.

Commissioner's appeal

In this appeal, the Commissioner did not pursue any issue concerning the Tribunal's conclusion in relation to reg. 68 of the Regulation. In the proceedings at first instance there had been an issue about whether this regulation required any prohibited firearms displayed in an RSL to be rendered permanently inoperable. The Tribunal concluded that reg. 68 only applied where the application was made by one of those persons defined in reg. 68(1) and did not otherwise provide that any permit issued to other persons to display in these locations must contain a condition requiring prohibited firearms to be rendered inoperable.
However, the Commissioner said that there were four errors of law made by the Tribunal.
First, new condition 6 was illogical and irrational. The Commissioner said that it was inappropriate for the Tribunal to have regard to the terms of what was referred to as the "Camden Permit", being a permit previously issued to Martin, because the circumstances applicable to that permit and the permit the subject of the present application were different.
The Commissioner also said that the condition imposed by the Tribunal was inconsistent with the other provisions of the permit. This was because the new condition 6 imposed a requirement to permanently disable "any prohibited firearm on display that is sourced from a collection". However, such a condition could not apply in the present circumstances because the firearms which were permitted to be displayed were only those firearms held pursuant to a Theatrical Armourer's Dealer's Licence 410111512 and not a Firearms Collector Licence as defined in s 8 of the Firearms Act.
In this regard, at the hearing of the appeal, the parties agreed that "a collection" as referred to in the permit meant a collection held under a firearms collector's licence. The parties also agreed that there was a conflict between condition 6 and condition 2 of the permit.
Consequently, condition 6 should be deleted.
Secondly, the Commissioner submitted that the Tribunal had misconstrued the public interest test and took into account irrelevant matters in its consideration of the public interest and safety.
The Commissioner criticised the Tribunal for its reference in [69] of the reasons to a requirement that any discretion be exercised in a "fair and reasonable way". The Commissioner said that the Tribunal had taken this expression, used in the decision of Commissioner of Police v Martin [2007] NSWADTAP 61, out of context. The Commissioner said the comments of the Appeal Panel of the Administrative Decisions Tribunal in that case related to determining whether or not an applicant had a "genuine reason", where it may have been relevant to consider the usual way in which trade is practised in a particular industry in determining whether or not a genuine reason existed.
The Commissioner submitted that any competitive disadvantage to theatrical armourers in New South Wales to those in different States, the reduction in the value of the respondents firearms by rendering them permanently inoperable, the inability of Martin to use firearms that had been rendered permanently inoperable and the manner in which Martin conducted its business were irrelevant considerations in determining conditions permitting public display of those firearms.
On this ground the Commissioner also submitted that the comparison with other permits and the conditions which might be imposed in relation to the issue was inappropriate. For example: 1. a permit issued for scientific purposes contemplated the use of a firearm; and 2. firearms displayed at an arms fair do not need to be rendered inoperable and, in any event, detailed planning, preparation and security is involved in controlling the risks prior to the arms fair taking place.
Consequently, the Commissioner submitted the comparison was "not only without foundation but hardly relevant as the permit the subject of this appeal was not a permit for one of the categories contained in Part 6".
Thirdly, the Commissioner submitted that the Tribunal misconstrued Part 6 of the Regulation. Having referred to the Tribunal's reasons at [77], the Commissioner referred to reg. 68 (RSL display permit) and reg. 34(3) (collection permit) and said the "common thread" between these provisions was a "requirement to render permanently inoperable prohibited firearms, that is the same type of firearms as (Martin) seeks to display". In any event, the Commissioner submitted that a consideration of the range of different classes does not support the approach taken by the Tribunal.
Fourthly, referring to the Camden Permit, the Commissioner submitted that the Tribunal failed to have regard to the additional condition that required prohibited firearms from a "collection" to be rendered permanently inoperable.
Consequently, the appellant said the Tribunal's discretion miscarried.
In addition to these errors of law, the Commissioner seeks leave to appeal "on the merits".
In short, the Commissioner submitted that the decision of the Tribunal permitted temporarily inoperable military firearms to be put on public display and that "the risk to the public with respect to prohibited weapons is unacceptable especially bearing in mind the calibre and firing capacity of the prohibited weapons that (Martin) will display to the public".
The Commissioner said that the uncontested evidence of Senior Constable Jackson was that measures to render a prohibited weapon temporarily inoperable can be reversed. In this regard the Commissioner referred to "computer numerically controlled machines" (CNC) being a technology available to manufacture firearms or firearm parts including, for example a firing bolt from a firearm that had been removed. In addition, a trigger lock installed could be removed, thereby allowing a prohibited firearm to be operated.
The Commissioner referred to the evidence of the respondent and said that Martin had indicated in that evidence that people attending any display may be able to touch and hold prohibited firearms. The Commissioner submitted that the risk of use of such firearms created an unacceptable risk to the public, particularly where there was no vetting process of those who might attend displays and handle the firearms. In making this submission the Commissioner made reference to what Martin believes the word "possession" means in the Firearms Act.
The Commissioner submitted that while supervision provides some protection, it "cannot guarantee that at all times prohibited firearms will be closely supervised" and that "[i]n order to remove the risk of human failure when the supervision required under the Permit is not provided or available, the (Commissioner) believes that the prohibited firearms should be permanently inoperable".
In reply, Martin made the following submissions: 1. It was incorrect that the firearms at the proposed displays would be available for handling by the public. The references made by the Commissioner were to other activities which Martin had previously undertaken such as training cadets or when displaying weapons at small-bore rifle clubs. 2. The reference to the CNC technology referred to expensive technology which, if possessed, would enable the manufacture of a complete firearm, not just firearm parts. 3. While it is correct that there is no vetting process for attendees at a public display, members of the public are not permitted to handle the firearms on display. 4. Any issue concerning the indeterminate frequency of displays in RSL clubs by reason of the lack of specificity in the permit as to when these will occur does not arise. The events are likely to be on "four occasions per annum as approved and others as may be requested by RSL clubs as was agreed by the Commissioner prior to the hearing and ratified by the decision at part 8". 5. In relation to the Commissioner's contention that the Tribunal misconstrued the public interest test and/or took into account irrelevant considerations, Martin said public interest was a wide-ranging term with different meanings in different contexts. Martin contended that the public has an interest in his displays of historic firearms and that the real issue is one of public safety, as dealt with by the Tribunal in its reasons at [64]-[71]. Martin contended that the Camden Permit was a "valid start point" and that it had been issued and used to display the prohibited firearms held under the Theatrical Armourer's Dealers Licence. 6. As to the comparison with other permit types, this was appropriate because, ultimately, the Commissioner was required to have regard to the language of s 28(g) of the Firearms Act.

Martin's appeal

Martin seeks an order that the permit be amended to include "Commemorative displays at or on behalf of RSL clubs, as may be requested".
Martin seeks leave to appeal out of time. His request is in the following terms: The matter was not initially appealed as has been explained in the Request for leave to appeal. It was not appreciated that the Commissioner had a different interpretation of order (4).
The parties have provided written submissions after the hearing of the Commissioner's appeal. They both agreed that a determination of Martin's appeal can be made on the papers, without a hearing. An order to this effect should be made by consent.
Essentially, Martin raises the following matters in support of his appeal: 1. It was agreed by the Commissioner at the hearing of the original application that the Commissioner would amend the permit to include displays at or on behalf of RSL clubs. The Tribunal, in its reasons, recorded this agreement. However, the Commissioner has subsequently denied this fact. 2. Having regard to the concession made by the Commissioner that reg. 68 had no application to the present permit request, and therefore was not a reason to refuse a permit for displays at RSL clubs, that matter is no longer a basis to refuse the application. In this regard Martin noted the Tribunal's decision on this aspect has not been challenged by the Commissioner on appeal. 3. The effect of order 4 of the Tribunal made on 30 March 2017 was that displays at RSL clubs should be permitted. The Appeal Panel should, so far as necessary, make orders to correct any ambiguity or uncertainty in the original order.
In reply, the Commissioner says no error of law has been identified by Martin. Consequently, leave to appeal is required.
Insofar as the Appeal Panel decided to grant leave, the Commissioner made the following submissions: 1. The Commissioner did not agree at the hearing to amend the permit to allow displays at RSL clubs. 2. It would be inappropriate to issue a permit in the terms proposed because this would allow an unlimited number of displays of firearms conducted at or for RSL clubs over a period of 5 years at locations not known by the Commissioner. The Commissioner would not have an opportunity to consider the circumstances of each, individual display. 3. Martin had been informed, when making his application, that any permit to be issued must specify the location and duration of the display and address any safekeeping matters. The application did not specifically address these requirements. Rather, the possibility of displays at RSL clubs was referred to under the heading "other activities". 4. At the hearing, the Tribunal did not consider in any detail whether any permit should extend to RSL clubs. Rather, the focus at the hearing concerned the applicability of reg. 68. The Tribunal incorrectly recorded at [8] that the Commissioner had agreed to lift the restriction relating to RSL clubs. This error was also repeated by the Tribunal in dealing with Martin's application under the slip rule. 5. The type of permit sought by the application was to display firearms for the purpose of commemorating Australian Military History. Reg 68 requires any permit for an RSL display must specify the premises or other location for the display. This provision prevents the issue of a general permit rather than one which is location specific. 6. The application lodged was not in the required form: see Reg. 21, in that the request concerning displays at RSL clubs did not provide address details. 7. Having regard to the above it is inappropriate that a permit be issued for 5 years which allows displays at any RSL club that Martin chooses. Rather, a separate application should be made for each display or for a small number of identified displays so that the Commissioner can properly assess the application and consider relevant issues such as genuine reason, whether the display commemorates an historical event, whether the location is appropriate and whether there are safe storage facilities at the site, how long will be displayed take place and which firearms are proposed to be displayed and whether they are relevant to the theme of the display.
Accordingly, the Commissioner said Martin's appeal should be dismissed.
Martin provided submissions in reply.
The substantial matters raised were that: 1. Reg. 68 was not an exclusive regime for displays at RSL clubs. 2. There will not be an unlimited number of displays. In any event condition 5 requires that each display be subject to police approval. 3. The conditions of the permit, including condition 12 that requires firearms not stay on the premises overnight, address the relevant safety issues. 4. The firearms legislation does not confine or limit the Commissioner's discretion in respect of his ability to issue a permit under s 28(g) of the Firearms Act.

Consideration

There is no issue in this appeal that Martin (or his company) is licensed to possess firearms, including prohibited firearms, or that he (or his company) has a Theatrical Armourer's Dealership Licence. The issues that do arise concern the conditions of the permit allowing the display of prohibited weapons from Martin's collection (the Commissioner's appeal) and the locations where that may occur (Martin's appeal).

Commissioner's appeal

We will deal with the Commissioner's appeal first.
It should be noted at this point that since this appeal was filed, the Firearms Regulation, 2017 (2017 Regulation) commenced on 1 September 2017. However, no issue arises in relation to this change: see reg. 158 of the 2017 Regulation. In any event, the 2017 Regulation is in similar terms.
As we indicated above, the Commissioner did not pursue any issue that displays in RSL clubs were solely regulated by reg. 68. That is, the mandatory condition in that regulation requiring prohibited weapon to be rendered permanently inoperable did not apply. Further, neither party contended that any other provision of the Regulation made express provision for the issue of a permit for the display of firearms relating to the present circumstances. Lastly, neither party contended that a permit could not be issued in respect of the present application by Martin.
Rather, the parties accepted that the relevant provision concerning the issue of a permit in the present case was s 28 of the Firearms Act. In addition, s 29 is also relevant. These sections provide: 28 General power to issue permits (cf APMC 3 (b), 7, 1990 Reg cl 15) The Commissioner may issue permits for any one or more of the following purposes: …. (g) to authorise the possession or use of firearms in such circumstances as the Commissioner considers appropriate, 29 General restrictions on issue of permits (cf APMC 4 (a), 1990 Reg cl 16) (1) A permit must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. (1A) The Commissioner must not issue a permit that authorises the possession or use of a firearm unless the Commissioner is satisfied that the applicant has a legitimate reason for possessing or using the firearm. (2) Without limiting the generality of subsection (1), a permit must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of: ….. (4) Despite any other provision of this section, the Commissioner may refuse to issue a permit if the Commissioner considers that issue of the permit would be contrary to the public interest.
Secondly, neither party challenged the principles that are applicable to the exercise of any discretion which were set out in the reasons of the Tribunal at [64]-[66] in the following terms: 64 In relation to the Act's emphasis on the overriding need to ensure public safety, reference is usually made to Ward v CoP [2000] NSWADT 28, [28], in which Hennessy DP 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 not pose any risk to public safety. Indeed, her Honour could not have been totally satisfied of that, as the applicant had been convicted of an offence of violence and had been the subject of an apprehended violence order. Some other cases to a similar effect are reviewed in Green v CoP [2014] NSWCATAD 59, [72] - [79]. 65 In Webb v CoP [2004] NSWADT 110, for example, 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": [32]. 66 The question of risk is therefore not 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.
As is evident from the sections of the Firearms Act and the cases to which we have referred, the critical issue is whether the correct and preferable decision in the present case required the issue of a permit to display prohibited weapons on terms that they be permanently disabled. The decision to issue a permit has two critical factors which the Commissioner (and the Tribunal on review) was required to consider, namely: 1. whether Martin "can be trusted to have possession of firearms without danger to public safety or to the peace": s 29(1); and 2. whether "the issue of the permit would be contrary to public interest": s29(4).
The Commissioner did not suggest that displaying prohibited weapons in the context proposed by Martin was an inappropriate activity which should be prohibited. Indeed, the Commissioner formed the view that the permit should be issued subject to conditions requiring the rendering of prohibited weapons permanently inoperable. The submissions of the Commissioner were that public safety considerations required a condition that the prohibited weapons, which Martin was authorised to possess and use for the purpose of the Theatrical Armourer's Dealers Licence in an unaltered state, should be rendered permanently inoperable if he wished to use them for the purpose of public display. This, the Commissioner said, was necessary due to the risk of theft and subsequent illegal use, the risk being heightened by the fact that (so the Commissioner asserted) Martin proposed to allow members of the public to touch or hold the firearms.
The objects of the firearms Act are clear. Section 3 provides: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms.
That is, there is an overriding need to ensure public safety.
As the authorities to which we have referred make clear, the critical question is what condition should be imposed, balancing the over-riding need to ensure public safety against the permission given to the relevant person under the Firearms Act to possess and use firearms for authorised purposes, including pubic display.
The Commissioner criticises the Tribunal below for taking into account the commercial imperative and business operations of Martin (relating to the use of the prohibited weapons in the course of carrying on business under the Theatrical Armourer's Dealers Licence) in determining what conditions should be imposed on a permit allowing the public display of prohibited weapons. In this regard, the Commissioner took issue with the Tribunal's reasons at [70] -[75].
It is unclear from the reasons what, if any, regard the Tribunal had to these matters in reaching its decision. However, we would agree with the Commissioner's submission that the Tribunal was in error, to the following extent.
It would appear that, in deciding what conditions should be imposed for the purpose of public safety at an event at which public display is to occur, the Tribunal took into account the fact that the permit holder was entitled to possess and use prohibited firearms in an operable state for different purposes.
In doing so, in our view the Tribunal was in error, because: 1. only matters affecting public safety for the particular use authorised by a proposed permit can be relevant to determining conditions appropriate to ensure public safety in connection with that permit; and 2. the factors identified by the Tribunal related to a different use and, in any event, have no relevance to the issue of what conditions should be imposed to ensure public safety when displaying prohibited firearms in public displays.
However, it does not follow that all prohibited weapons should be rendered permanently inoperable where a permit is sought authorising them to be used and placed on public display. What is required is to determine whether public safety requirements can be met without derogating from the applicant's otherwise lawful entitlement to use particular firearms for a different purpose authorised by the Firearms legislation. If that cannot be done, so that in permitting a display the only way of ensuring public safety for the particular display is to require prohibited firearms to be rendered permanently inoperable, then a condition to that effect must be the correct and preferable decision. An applicant can then decide whether to take up the permit on those conditions or retain the prohibited firearms in an unaltered state so as to allow the use for other purposes. This view is consistent with the objects of the Firearms Act that "firearm possession and use (is) a privilege that is conditional on the overriding need to ensure public safety".
The Commissioner also criticised the Tribunal's analysis, at [76] and following, which was an analysis of particular permit types. We understood the Commissioner to contend that the Tribunal was suggesting that the existence of conditions imposed for permits of different types was irrelevant in determining conditions for a permit allowing a particular use. In our view however, the significance of the analysis by the Tribunal is not to show that a particular condition should be applied to a particular permit type. Rather, the Tribunal's analysis was intended to demonstrate that the legislature has not by Act or Regulation imposed a universal condition that a prohibited firearm can only be publicly displayed if it is rendered permanently inoperable. So much was conceded by the Commissioner when he withdrew any submission that reg. 68 operated in all circumstances in which firearms were to be displayed in RSL clubs.
Secondly, the Tribunal's reference to the Camden Permit does not itself reveal error. It was some evidence of what the Commissioner, at least previously, considered were necessary conditions to be imposed for public safety purposes. It was also illustrative of conditions which could be imposed for the purpose of removing any "real and appreciable risk" which might arise from the display of prohibited firearms that were not otherwise rendered permanently inoperable.
As properly conceded by Martin, it is always possible for somebody who steals a firearm and who has access to appropriate machinery to be able to manufacture firearm parts and/or firearms, and thereby make operable a firearm otherwise temporarily inoperable. In this sense there is a risk. However, temporary disablement and/or preventing access to the firearms, including by conditions as to the form of the display and preventing members of the public from touching or holding weapons are conditions which themselves can prevent any real and appreciable risk.
The submission that any conditions imposed must "remove the risk of human failure when the supervision required by the Permit is not provided were available" could never be satisfied by the holder of any permit or licence and that is not what is required by the Firearm Act and regulations. The case law to which the Tribunal referred, and which the parties do not challenge in this appeal, is to the contrary.
That is not to suggest that it may be inappropriate to permit display of prohibited weapons that have not been rendered permanently inoperable at particular venues or particular occasions identified in a permit. However, the initial identification and approval of the venues in the present permit indicates the Commissioner was satisfied that public safety at the events could be properly provided for. Further, condition 5, which requires permission for every display from local police prior to such display, regulates any particular risk that might arise concerning those specified venues/events in the future.
It follows from what we have said: 1. The fact Martin held licences or permits which permitted possession and use of the prohibited firearm and required them to be in an operable state for such use was not a factor relevant to determining: 1. what conditions were reasonable to be imposed to ensure public safety in respect of a permit issued for a different use, namely public displays to commemorate Australian military history; and 2. whether such conditions should include a requirement that the prohibited firearms be rendered permanently inoperable. 1. Insofar as the Tribunal took that factor into account, its discretion miscarried; and 2. This constitutes an error of law: House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-5.
However, the Tribunal was entitled to have regard to the other factors to which we have referred.
Insofar as the discretion of the Tribunal miscarried, we are able to re-exercise that discretion pursuant s 81(2) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act).
The Commissioner also sought leave to appeal on the merits. By this we take it that leave was sought to appeal on grounds other than a question of law as provided in s 80(2)(b) of the NCAT Act.
The principles applicable to the grant of leave were dealt with by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. At [84] the Appeal Panel said: The general principles derived from these cases can be summarised as follows: 1 In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 2 Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 3 In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
The Tribunal concluded that a suitable condition was to require prohibited firearms on display to be rendered temporarily inoperable. That is, the same condition should be imposed for the prohibited firearms under consideration as the Commissioner considered appropriate for firearms other than prohibited firearms (see original condition 7).
The Commissioner's submission and the evidence to which he refers suggest the process can be reversed. This must also apply to firearms other than prohibited weapons. The Tribunal concluded that with supervision, any risk would be adequately dealt with. As stated above, this was in part based on its review of the Camden Permit.
Ultimately, the Commissioner's submission on this point is that it cannot be guaranteed that at all times the prohibited firearms will be closely supervised. That is, condition 7 in the permit, which (as amended by the Tribunal's order) requires close supervision, will not be met by Martin. The Commissioner did not submit that if the condition was met then adequate provision for public safety would be made.
The evidence provided to the Tribunal and to the Appeal Panel does not suggest that Martin will not comply with the conditions of any permit. To the contrary, he has apparently been issued with previous permits allowing display of prohibited weapons that were not rendered permanently inoperable. No suggestion was made in the proceedings before the Tribunal nor before the Appeal Panel that he has breached the conditions of any permit save on one occasion which the Tribunal identified in its reasons. The Tribunal said this occasion arose from a failure of the event organiser, not Martin. The Commissioner did not submit there was fault on the part of Martin on this occasion.
In these circumstances, we are not satisfied that there is any relevant error or that leave should be granted to appeal on grounds other than a question of law. Accordingly, leave is refused.
Finally, we note the Commissioner suggested that Martin intended to allow members of the public to touch or hold the prohibited firearms. This was denied and, in any event, Martin made clear that members of the public would not be permitted to touch or hold any of the firearms.
The initial conditions in the permit issued by the Commissioner did not deal with this aspect.
However, this issue and correcting the agreed error in amended condition 6, are matters which the Appeal Panel can deal with accordance with s 81(2) of the NCAT Act. Having regard to the guiding principle set out in s 36(1) of that Act, under which we are under an obligation to facilitate the just, quick and cheap resolution of the real issues in dispute, we should make appropriate orders to deal with both matters.
Orders should be made in the following terms to vary the conditions: 1. Commissioner's permit - Military Commemorative Display No. 411520772 (the permit) is varied by deleting condition 6 2. Condition 7 of the permit is varied by adding the following: "The permit holder and/or any other employee or security guard or guards reasonably required by the Commissioner must: a) exercise and maintain close supervision of the firearms as well as any other articles at all times; and b) ensure that members of the public and anyone else attending any display and not authorised by this permit are not permitted to touch, handle or otherwise take possession of a firearm and that displays are of a type that will not permit this to occur".
Otherwise, the appeal should be dismissed.

Martin's appeal

As noted above, Martin's appeal was filed out of time, being more than 28 days after the decision of the Tribunal on 30 March 2017. Accordingly, leave to extend the time to appeal is required and the principles in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 are applicable to the grant of leave.
In this regard, the Appeal Panel notes that the delay is substantial, the appeal being filed nearly 3 months late.
Martin asserts that he understood the effect of order 4 was that the Tribunal had approved a permit on terms that permitted displays at or on behalf all RSL clubs as requested.
Order 4 provides: In all other respects to the decision under review is affirmed.
It is clear from the terms of order 4 that, save for the varied conditions as provided in orders 1-3, the Tribunal did not vary that part of the permit concerning the locations at which displays were authorised.
We note that the Tribunal, having recounted the procedural history of Martin's application, said at [8]: … Since then the respondent has agreed to lift the restriction relating to RSL clubs.
The Tribunal does not record how or when this agreement was made. The Commissioner denies any such agreement.
The documents provided on appeal included a transcript of the hearing before the Tribunal. The following exchange occurred between the Tribunal and Mr Cuddy, the lay advocate for Martin (tscp p 11 line 4 and following): Tribunal: Yes. And so the permit authorises those for function and the applicant wants to be broadened to include RSL clubs. Is that right? Mr Cuddy: The applicant can ask for a broader range of activities and the Firearms Registry initially knocked him back on a major portion of them, which is referred to at page 38 of the section 58 documents and one of those was RSL clubs and the other was Apex Rotary (indistinct) clubs, Scouts, Raiders, Cadets for Defence Forces, and they only provided subjective reasons rather than any particular reasons, but Mr Martin conceded on the others but wished to have the RSL clubs reinstated and requested that. Tribunal So there is no dispute at the moment about Centaur or Apex or any of those? Mr Cuddy: No, your Honour. Tribunal: So, the only dispute now is about RSL Clubs? Mr Cuddy: Yes, sir. Right.
It seems clear to us that there was no agreement of the type for which Martin contends. We have not been referred to any evidence from the hearing which would suggest the contrary. Martin has not pointed to any evidence to support the assertion the Commissioner subsequently agreed during the hearing.
Accordingly, despite the Tribunal's statement at [8], we do not accept any agreement was reached.
In any event, even if there had been such an agreement, neither party suggested at the hearing that the Tribunal should make orders consistent with that agreement. Rather, as the Commissioner submitted, it would seem neither party pursued this issue before the Tribunal.
We have not been referred to oral evidence at the hearing dealing with the appropriateness of a permit being issued in respect of RSL clubs on the terms proposed by Martin. Nor, from our review of the transcript, does it appear either party made submissions on this topic. It was simply not pursued by Martin at the original hearing despite the questioning by the Tribunal of Martin's representative, Mr Cuddy, about what was in dispute. In this regard there appears to be no examination of factual matters relevant to such a grant, no cross-examination addressed to this topic and no submissions to the Tribunal requesting it to address this issue or make an order in the terms now sought in Martin's appeal. Further, the Tribunal's reasons at [8] indicate that the parties were not required to, and did not, file written submissions prior to the hearing.
In these circumstances, while Mr Cuddy suggested a request to display at RSL clubs was being pursued (tscp p40 line 13-17), it would appear from the transcript of the oral hearing that the Tribunal was not finally required by Martin to rule on this aspect, namely the appropriateness of a general authority or the conditions to be imposed in respect of such an authority.
Whether or not this was from inadvertence of the advocate, the fact remains no ruling was made.
While the Tribunal could fall into legal error if it failed to address an issue raised, when the issue is not pursued in evidence or submissions at the hearing, an error would not ordinarily arise.
The Commissioner opposed leave to appeal on the merits. On one view such an appeal presupposes the Tribunal was asked to and has made a decision on the topic, the subject of the appeal.
Whether or not that is correct, we must also have regard to the guiding principle set out in s 36 of the NCAT Act.
In the context of the present appeal, the significant issue is one of public safety and what conditions are necessary to ensure these requirements mandated by the Firearms legislation are met.
In this regard there is a distinction to be drawn between: 1. a permit authorising particular, identified events and identified locations and/or on known dates; and 2. a permit in terms authorising "Commemorative Displays at or on behalf of RSL Clubs, as may be requested".
The circumstances which might pertain to particular, identified, events can be readily identified by the decision-maker for the permit application so as to make a proper assessment of risk. On the other hand, a permit expressed as a general permission to provide commemorative displays as may be requested makes more difficult the assessment of such risk and the conditions of a permit required to ameliorate such risk.
The evidence presented at the original hearing and the material provided to us on this appeal is insufficient for us to make an assessment of all relevant risks, particularly where there has not been examination of witnesses who may have relevant opinions concerning the risks which are involved. In these circumstances, and having regard to the history of these proceedings, we are not satisfied that time should be extended and leave to appeal should be granted. Further, we are not satisfied that, having regard to the facts in this case, the correct and preferable decision would lead to a conclusion that a general permission of the type sought in Martin's appeal should be included in the present permit.
In this regard, we accept the Commissioner's submission that the fact each individual event needs to be approved by "local police" does not constitute a sufficient reason to justify the grant of a permit on terms that allow displays at unidentified locations, on indeterminate days and of unspecified duration.
The effect of Martin's submission is to approach the task concerning whether a permit should issue (as opposed to what necessary conditions should be imposed) on the basis that any request in general terms should be authorised provided that suitable conditions in respect of public safety are imposed. Such an approach tends to subvert the Commissioner's discretion to refuse a permit and assess relevant risks as part of the permit issuing process.
In our view there is a two stage approach to be undertaken. First, the decision maker must determine whether a permit should be issued in the terms proposed or whether public safety considerations militate against it being issued. Second, if a permit is to issue, the decision maker must determine what conditions should be imposed on it to ensure public safety.
That is not to suggest that a further application, containing sufficient information so as to the type of and manner in which particular events and locations might be selected, could not be made requesting a more general authority. However, in the present case we were not satisfied that the information provided with the original application and the evidence provided to the Tribunal at the original hearing is sufficient to justify a decision of the type for which Martin contends in his appeal.
The permit as approved by the Commissioner identified particular venues and/ or dates on which the identified displays might occur. These locations and events are likely to constitute quite different risk issues to those that might arise in respect of venues such as RSL clubs, where many visitors may attend the venue for purposes other than to view a Military Commemorative Display.
A final matter to deal with is the Commissioner's submission concerning reg.68. We do not accept that reg. 68 regulates an application for a permit to display, being an application other than by a person to whom the requirements for an RSL display permit apply. This submission appears to seek to re-open an issue not pursued in the Commissioner's appeal and about which no oral argument was advanced at the hearing of the Commissioner's appeal. Further, it is a submission that seeks to suggest all permits for public displays are regulated by reg. 68. This is not what the clause says. Reg. 68 does not impose mandatory requirements for all applications in the manner contended.
It follows that leave to appeal out of time should be refused and Martin's appeal should otherwise be dismissed.

Costs

Each party has been substantially unsuccessful in their appeals. While some orders have been made to correct an agreed inconsistency and we have decided to impose an additional condition concerning any display and access to the firearms by members of the public, our preliminary view is that each party should pay their own costs.
If any party contends for a different outcome, leave will be granted to make an appropriate application.

Orders

The Appeal Panel makes the following orders: 1. By consent, pursuant to section 50 (2) of the Civil and Administrative Tribunal Act, 2013, a hearing is dispensed with in respect of appeal AP 17/33603. 2. The orders made on 30 March 2017 in application 201600378505 are varied as follows: 1. By consent order 1 is varied to read: 1. Commissioner's permit - Military Commemorative Display No. 411520772 (the permit) is varied by deleting condition 6. 1. Order 2 is varied to read: 2. Condition 7 of the permit is varied by adding the following: "The permit holder and/or any other employee or security guard or guards reasonably required by the Commissioner must: a) exercise and maintain close supervision of the firearms as well as any other articles at all times; and b) ensure that members of the public and anyone else attending any display and not authorised by this permit are not permitted to touch, handle or otherwise take possession of a firearm". 1. Save as provided above, appeal AP 17/19232 is dismissed. 2. Leave to extend the time to appeal in respect of appeal AP 17/33603 is refused and the appeal is otherwise dismissed. 3. Each party is to pay their own costs of the appeals. 4. If either party seeks a different costs order to that in order (5), the following directions apply: 1. The applicant for costs (costs applicant) must file and serve any cost application, including submissions and any evidence in support, within 7 days of the date of these orders. 2. The respondent to the costs application is to file and serve any submissions and evidence in reply within 14 days from the date of these orders. 3. The costs applicant is to file any submissions in reply within 21 days from the date of these orders. 4. Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the Civil and Administrative Tribunal Act, dispensing with a hearing of the costs application. 1. In the event an application is made pursuant to order (6), order (5) shall cease to have effect.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal 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: 22 January 2018

Cited: Collins v Urban [2014] NSWCATAP 17 Commissioner of Police v Martin [2007] NSWADTAP 61 House v R [1936] HCA 40; (1936) 55 CLR 499 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: AP 17/19237

Lindsay Taylor Lawyers (Commissioner of Police, New South Wales) File Number(s): AP 17/19232 and AP 17/33603 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Administrative and Equal Opportunity Division Citation: Martin v Commissioner of Police, New South Wales [2017] NSWCATAD 97 Date of Decision: 30 March 2017 Before: Emeritus Prof G Walker, Senior Member File Number(s): 2016/00378505

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Judgment (12 paragraphs)

Cases Cited (9)

Cited By (1)