15] NSWCATAD 224
Date of Decision: 27 October 2015
Before: G Walker, Senior Member
File Number(s): 1510377
[2]
The question
Mr Allen is a sheep grazier who uses a firearm to shoot pest animals on rural land. The Commissioner of Police refused his application for a permit to attach a silencer to his firearm. The question on appeal is whether the Tribunal erroneously concluded that Mr Allen had demonstrated that it is necessary in the conduct of his business to use or possess a silencer.
[3]
How the question arises
Silencers, and any other devices designed to reduce or muffle noise, are prohibited weapons: Weapons Prohibition Act 1998, s 4(1) and Sch 1, item 4(3), s 7(1). The Commissioner of Police cannot issue a prohibited weapons permit unless he is "of the opinion that there is a genuine reason for possessing or using the weapon": Weapons Prohibition Act, s 11(1). Mr Allen relied on the genuine reason of "business/employment purposes".
The Commissioner of Police refused Mr Allen's application for a prohibited weapons permit because he had not demonstrated that it was necessary in the conduct of his business to use a silencer: Weapons Prohibition Act, table to s 11(1). Mr Allen applied to the Tribunal for an administrative review of the Commissioner's decision: Weapons Prohibition Act, s 35. The Tribunal's task was to determine whether the Commissioner had made the "correct and preferable decision" having regard to the material before it: Administrative Decisions Review Act 1997 (NSW), s 63.
The Tribunal set aside the decision and the Commissioner has appealed to the Appeal Panel: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(1). The Commissioner is entitled to appeal on a "question of law": NCAT Act, s 80(2)(b). The Commissioner identified five such questions and also sought leave to appeal on grounds other than questions of law: NCAT Act, s 80(2).
Mr Allen sought to adduce fresh evidence including a supplementary affidavit sworn on 15 March 2016. We have not taken any of this evidence into account because the role of the Appeal Panel is first to determine whether the Tribunal has made an error of law and second to decide whether leave should be granted to the Commissioner to appeal on grounds other than a question of law. Because the fresh evidence goes to the merits of the Tribunal's decision it is not relevant to any issue the Appeal Panel is considering at this stage.
[4]
First question of law - incorrect construction of the words 'necessary in the conduct of the applicant's business'
The Commissioner submitted that the Tribunal had misconstrued the word "necessary" in the table to s 11(1) of the Weapons Prohibition Act. Mr Allen relied on "business/employment purposes" as the genuine reason for using or possessing a silencer. To come within that purpose:
The applicant must demonstrate that it is necessary in the conduct of the applicant's business or employment to possess or use the prohibited weapon for which the permit is sought. (Emphasis added.)
The word "necessary" is an ordinary, non-technical, term. There is authority for the proposition that the meaning of such a word is a question of fact, not a question of law: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 380 at 287. Commentators Aronson and Groves have expressed the view that choosing among a range of usages of a non-technical word should always be an issue of law: Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, (5th ed 2013, Lawbook Co) at 211. Even if that is incorrect, the misconstruction of an ordinary word (as distinct from its meaning) is a question of law: Industry Research Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564 at 577.
If a non-technical word, such as 'necessary' is used in a statutory provision, it should be given its plain and ordinary meaning unless the contrary is shown: Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 per Dixon J at 647; Thompson v Judge Byrne (1998-1999) 196 CLR 141 at [19] per Gleeson CJ, Gummow, Kirby and Callinan JJ at p45] per Guadron J. The Macquarie Dictionary, 3rd edition, defines "necessary" as:
adjective 1. that cannot be dispensed with: a necessary law.
2. happening or existing by necessity.
3. acting or proceeding from compulsion or necessity; not free; involuntary: a necessary agent.
These definitions should not be used as a substitute for the word itself. As Basten JA held in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, Basten JA at [45]:
The word "necessary" can have shades of meaning: it is not "a fixed character, peculiar to itself" but rather "admits of all degrees of comparison", in the language of the United States Supreme Court in McCulloch v State of Maryland 17 US (4 Wheat) 316 at 414 (1819) cited by Gummow and Crennan JJ in Thomas v Mowbray [2007] HCA 33; (2007) 233 Clr 307 at [101]. The Court in McCulloch, in the same passage, noted at 413:
"If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another."
Basten JA goes on to state at [46] that "[T]he meaning of 'necessary' "depends on the context in which it is used".
The underlying principles and objects of the Weapons Prohibition Act are set out in s 3(1)(a):
(a) to confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety by imposing strict controls on the possession and use of prohibited weapons.
The specific objects of the Act are set out in s 3(2):
(a) to require each person who possesses or uses a prohibited weapon under the authority of a permit to have a genuine reason for possessing or using the weapon,
(b) to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons,
(c) to provide an amnesty period to enable the surrender of prohibited weapons.
The Commissioner submitted that the word "necessary" in the context of the Prohibited Weapons Act means that the possession or use of a silencer was "essential" or "directly required" for the purpose of conducting the business of sheep grazing. Those words come from the decision in Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 (Osborne). In that case the Appeal Panel of the Administrative Decisions Tribunal was considering the phrase "necessary in the conduct of the applicant's business" in a comparable legislative context but in different factual circumstances: Firearms Act 1996 (NSW), 12(1).
Mr Osborne was a travelling firearms dealer who applied for a licence to carry a pistol to deter criminals from stealing his firearms. As with permits for silencers, Mr Osborne needed to satisfy the Commissioner that possessing the pistol was "necessary in the conduct of" his business. The Appeal Panel held at [44] that the critical issue was not whether "necessary" meant 'reasonably' necessary or 'absolutely' necessary. The issue was whether the fact that Mr Osborne chose to travel alone carrying firearms in isolated locations meant that it was necessary for him to carry a pistol.
The Appeal Panel concluded that it was not necessary because Mr Osborne could have conducted his business in a way that did not expose him to such a high risk of robbery. The Tribunal explained its conclusion by saying at [46] that, [T]he possession of a pistol is not directly required of the business or employment" and at [49] that, "[I]t is not essential to the process of dealing in firearms to do business in this way". (Emphasis added). In both passages, the Appeal Panel expressed itself in the negative.
The Appeal Panel was not using the words "directly required" or "essential" to suggest that the word "necessary" had a fixed meaning in the context of s 11(1) of the Weapons Prohibition Act. Rather, the Tribunal focused on the way the business was conducted and held that the firearm must be necessary in the context of the core features of the business, not in the context of the way a person chooses to conduct the business.
One of the core features of Mr Allen's business is that he needs to control feral animals. Mr Allen is not conducting his business in a particular manner which makes it more or less necessary to use a silencer. The business features, including the location of his property and the extent of infestation of feral animals, are factors beyond his control. The facts in Osborne can be distinguished on that basis. The Tribunal did not err by failing to interpret "necessary" as "directly required" or "essential".
The Commissioner also submitted that the Tribunal failed to apply the reasoning in Osborne because it considered whether the possession or use of a silencer was necessary for Mr Allen's specific business rather than for sheep grazing businesses in general. That criticism is not justified because the decision in Osborne distinguishes between the manner in which a person conducts his or her business and the way other businesses of that kind are conducted. The reasoning in Osborne does not preclude the Tribunal from taking into account Mr Osborne's particular circumstances.
[5]
Second question of law: shifting the burden of proof to the Commissioner
The Commissioner submitted that the applicant for a permit "bears the onus" and that, in this case, the Tribunal shifted that burden to the Commissioner. In our view, that is not a correct characterisation of either the law or the Tribunal's decision. Section 11(1) of the Weapons Prohibition Act provides that:
(1) The Commissioner must not issue a permit authorising the possession or use of a prohibited weapon unless the applicant has, in the opinion of the Commissioner, a genuine reason for possessing or using the weapon.
While various 'genuine reasons' are set out in s 11(2), those reasons are not the only reasons which may satisfy the Commissioner that a prohibited weapons permit should be issued. Section 11(2) provides that:
(2) Without limiting the reasons that the Commissioner may be satisfied are genuine reasons, the Commissioner may determine that an applicant has a genuine reason for possessing or using a prohibited weapon if the applicant:
(a) states that he or she intends to possess or use the weapon:
(i) for any one or more of the reasons set out in the Table to this subsection, or
(ii) for any other reason prescribed by the regulations, and
(b) is able to produce evidence to the Commissioner that he or she satisfies the requirements (if any) specified in respect of any such reason. (Emphasis added.)
When reviewing the Commissioner's decision, the Tribunal's task is to decide what the correct and preferable decision is having regard to the material then before it: Administrative Decisions Review Act, s 63. When interpreting similar provisions, courts have held that an applicant does not have to show that the administrator's decision was wrong: rol Investments Pty Ltd v Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88. Nor, unless there is a provision to the contrary, does either party bear a legal onus or burden of proof: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at 17 ([40]).
If the genuine reason on which an applicant relies is "business or employment purposes", an applicant "must demonstrate that it is necessary in the conduct of the applicant's business or employment to possess or use the prohibited weapon for which the permit is sought". Section 11(2)(b) makes it clear that Mr Allen had the "evidential burden" to provide evidence on that issue: Williams, CR Burdens and Standards in Civil Litigation (2003) Sydney Law Review 9. But, as Mr Allen had no legal burden of proof, the Tribunal cannot have "shifted the burden onto the Commissioner".
[6]
Third question of law: denial of procedural fairness
[7]
The question
The Commissioner submitted that the Tribunal had breached procedural fairness by upholding his objections to the admissibility of certain evidence and then relying on that evidence in its reasons. The Commissioner said he relied on the Tribunal's rulings and did not cross-examine Mr Allen on that evidence. Alternatively, he did not cross-examine him as extensively as he would have if the evidence had been admitted.
"The Tribunal is not bound by rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit": NCAT Act, s 38(2). That proposition has an important caveat. The Tribunal is "subject to the rules of natural justice" or procedural fairness: NCAT Act, s 38(2). Procedural fairness includes a duty to disclose to a party the "critical issues" to be addressed: Kioa v West (1985) 159 CLR 550 at 587 per Mason J. The substance of any material that is " credible, relevant and significant to the decision to be made" must be disclosed so that the person has an adequate opportunity to respond: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Brennan J at 629,
[8]
Lister diagram
The Commissioner objected to the following paragraph of Mr Allen's affidavit dated 11 August 2015 which described the Lister diagram, and to the diagram itself:
Attached and marked "I" is a copy of the diagram I obtained from an academic article demonstrating how a silencer lowers and changes the noise signature of a firearm, such that observers downrange of a shooter using a firearm fitted with a silencer turn their attention 45 to 180 degrees away from the shooter, with the confusion over the location of the shooter. This level of confusion is effective across a 150° arc in front of the shooter, which is obviously where all shooting activity takes place (Aimee Lister, Defence College of Management and Technology, Cranfield University UK - "Investigations into the Optimisation of sound suppressor geometry", 2006)
The Commissioner's objections to this evidence were that it was "a conclusion and opinion not based on any identified expertise or experience". During the hearing when this objection was being dealt with, the following discussion occurred between the Tribunal Member, Mr Allen's solicitor (Mr Connor) and the Commissioner's solicitor (Mr Mattson):
SM Walker: do you have a copy of the article Mr Connor?
Mr Connor: no I don't. It's a … I can put it no higher than saying it's to elaborate the applicant's point that, no I don't have a copy of the article but I can, it's an academic article.
SM Walker; do you know if it's online? Sometimes they are.
Mr Connor: I'm sure it, I have sections of it. I don't, I'm not quite sure I've got the whole article. It may well be online.
Mr Mattson: I don't have the article. I have the thesis from which perhaps the article was based and it is something that I can take Mr Allen to it in cross-examination.
SM Walker: Alright. Well subsequently if you obtain a copy, if you download it or whatever, it can be sent to Mr Mattson and the tribunal after the hearing.
Mr Mattson; I've got the thesis.
SM Walker; Yes, yes
Mr Mattson: Now it may be that one and two are the same thing. I don't know.
SM Walker; But I can't give any weight to it if it's just a title, so perhaps if you'd like to think about that and how you want it treated.
Mr Connor: All right.
SM Walker: We can deal with it later.
Mr Connor: I haven't seen it but I'll consider that, thank you.
Mr Mattson representing the Commissioner cross-examined Mr Allen on the Lister diagram. Mr Allen clarified that the document from which the diagram was extracted was a PhD thesis on suppressors and their effect on sound. Mr Mattson put it to Mr Allen that the thesis was not about the effect of silencers when culling vermin and pests. Mr Mattson then showed Mr Allen an abstract of the thesis. Mr Allen agreed that the diagram relates to the way people perceive the noise of a firearm when fitted with a suppressor but reasoned that people are animals in a broader sense.
The Commissioner submitted that Mr Mattson did not cross-examine Mr Allen as extensively as he would have had he known that the Tribunal would give the Lister diagram some weight.
We do not accept that contention. The Tribunal Member foreshadowed that he would not be able to give the Lister diagram any weight if it was just a title, but made no formal ruling about the admissibility of the diagram at or after the hearing. Mr Mattson had a copy of the thesis which contained the diagram and cross-examined Mr Allen in relation to it. It is apparent from the Tribunal's decision that the Member treated the diagram as evidence. Referring to it at [68] the Tribunal wrote that it "showed how a silencer lowers and changes the noise signature of a firearm". At [71] the Tribunal rejected Mr Mattson's criticism of the diagram because it recorded the perceptions of humans, not animals.
The Lister diagram was credible, relevant and significant to the decision that had to be made. The Commissioner was given a reasonable opportunity to be heard or otherwise have his submissions considered on that issue. The Commissioner took advantage of that opportunity by cross-examining Mr Allen about the diagram and making submissions. It is logical to infer that if Mr Mattson thought that the Tribunal had excluded the Lister diagram, he would not have cross-examined Mr Allen on that document at all, nor would he have made submissions about it. There has been no breach of procedural fairness.
The Commissioner's alternative submission was that the Tribunal did not comply with Procedural Direction 3, Expert Witnesses. That direction was made under s 26 of the NCAT Act. In Chi Building Pty Ltd v Wedgewood [2016] NSWCATAP 64 at [36], the Appeal Panel held that non-compliance with the experts' code of conduct, as set out in the Direction, did not mean that a witness was not competent to give opinion evidence or that the evidence is inadmissible. Rather, the Tribunal is to determine the weight that should be given to that evidence. The Tribunal made no error of law on the basis of any non-compliance with Procedural Direction 3.
[9]
Conversations with professional shooters
The second aspect of this ground of appeal is that the Tribunal breached the rules of procedural fairness in relation to the evidence Mr Allen gave about conversations with professional shooters. At [49] of his affidavit, Mr Allen gave the following evidence:
From my own observations, reading scientific papers and from numerous conversations over the years with professional shooters, there is no doubt in my mind the likelihood of being able to remove more than one pest animal at a time when presented with the opportunity is very significantly increased when a silencer is used by a rifle shooter.
The Commissioner objected to that evidence being admitted on the ground that it is a conclusion and opinion not based on any identified expertise or experience. The extent of the consideration of this issue in the transcript is as follows:
Mr Mattson; paragraph 49 again we say is an opinion or conclusion.
Mr Connor: I agree.
SM Walker: Yes.
The Commissioner did not cross-examine Mr Allen on this evidence.
Mr Allen's opinion on the effect of silencers has two sources. Mr Allen's "own observations, reading scientific papers" and "numerous conversations over the years with professional shooters". It is apparent from the Tribunal's reasons that it did not rely on Mr Allen's knowledge as a basis for this opinion. But the Tribunal did refer to the evidence about the opinion of professional shooters. At [27], when outlining Mr Allen's evidence, the Tribunal said:
Numerous conversations the applicant has had with professional shooters lead him to believe that the likelihood of being able to remove more than one pest animal at a time when presented with the opportunity is very significantly increased when a silencer is used by a rifle shooter.
Under the heading, "Consideration" at [68], the Tribunal wrote:
Professional shooters have frequently told Mr Allen that there is a much better chance of removing more than one pest animal at a time when a silencer is used.
Mr Allen submitted that while this comment appears under the heading "Consideration" in the reasons, it was not evidence on which the Tribunal relied in reaching its conclusion. The gravamen of the Tribunal's reasoning is said to begin at [72]. We do not agree with Mr Allen's contention. From [68] to [83] the Tribunal deals with the evidence as to the effect of a silencer when culling groups of feral animals. In that context, the Tribunal again refers to Mr Allen's evidence that professional shooters have frequently told him that there is a much better chance of removing more than one pest animal at a time when a silencer is used. By mentioning the conversations with professional shooters under the heading "Consideration", the Tribunal was indicating that it relied, to some extent, on that evidence in support of its conclusion.
It was reasonable for the solicitor for the Commissioner to conclude, on the basis of the Tribunal's concurrence with the parties' views, that the evidence about conversations with professional shooters would be given no weight. Despite the Tribunal's indication to the contrary, the Member referred to that evidence both when outlining Mr Allen's evidence and when giving its reasons. In adversarial proceedings making findings based on excluded evidence may constitute an error of law: Cassar v New South Wales Crime Commission [2014] NSWCA 356 at [23].
But we do not consider that it does in this case. As well as Mr Allen's evidence about what professional shooters had told him, the Commissioner adduced evidence from Detective Sergeant Snow, that "professional shooters had been successfully culling feral animals for many years without the use of silencers". Detective Sergeant Snow did not explain why, if that was the case, the Commissioner's own fact sheet (Version 1.3, October 2013) envisaged that licensed contract shooters may be able to establish a genuine reason to possess or use a silencer. Under the heading "Who would be able to establish a genuine reason to possess and use a silencer?" the factsheet provides that:
A person who is a licensed contract shooter and contracted to control feral animals or vermin on behalf of a government agency or on behalf of another person by use of a firearm.
Such a person would still need to establish that in order to cull feral animals there is a genuine requirement to muffle the noise of gunshot so that other animals in the vicinity are not disturbed by the sound.
The effectiveness of silencers when used by professional shooters was a relevant issue. The Tribunal did not deny the Commissioner procedural fairness by indicating that Mr Allen's evidence on that issue would not be taken into account. In the words of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14, "No practical injustice has been shown". The Commissioner's only "lost opportunity" was to cross-examine Mr Allen on the conversations he had with the professional shooters. That may have led the Tribunal to give the evidence less weight or to disregard it, but there was other probative evidence which supported the Tribunal's decision.
[10]
Reliance on the decision in French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221
Under the heading "Consideration" at [75] of the Tribunal's decision, the Tribunal referred to evidence given in another firearms case decided by the Tribunal - French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221. That evidence was that "… in New Zealand it is accepted that silencers make it possible to shoot vermin without disturbing nearby animals". The Commissioner objected to this statement because the Tribunal did not tell the parties that it intended to rely on that evidence.
The Tribunal should disclose all the material that will be considered and give the parties an opportunity to address that material. However, when read in context, it is apparent that the Tribunal was merely making a passing reference to that material. It was not relying on it as probative evidence in support of its conclusion.
[11]
Fourth question of law: lack of rationally probative evidence
It is an error of law to make a finding if there is "no evidence" to support that finding: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 156-157. Acting without evidence includes acting without probative evidence: Bruce v Cole (1998) 45 NSWLR 163 at 188-189; Skiwing Pty Ltd v Trust Company of Australia [2006] NSWCA 276 at [52]; AMP Capital Investors Ltd v Transport Infrastructure Development Corporation (2008) 163 LEGRA 245 at [40] per Hodgson JA (Bell JA and Gyles AJA agreeing).
Despite not being bound by the rules of evidence, the Tribunal must determine whether to take into account evidence provided by the parties. Evidence means material which could rationally affect the decision-maker's assessment of the probability of the facts in issue: Roberts v Balancio (1987) 8 NSWLR 436 at 437.
The Commissioner submitted that the Tribunal placed significant reliance on the Lister diagram, the McCarthy Report, the McGaw letter and the conversations with professional shooters. It was said that this evidence was not "rationally probative". But the Tribunal will only have made an error if there was no evidence or no probative evidence of the finding that it is necessary in the conduct of Mr Allen's business to use a silencer. Consequently, all the evidence needs to be considered, not just the evidence relied on by Mr Allen.
Summarised below is the evidence which one or both parties regarded as evidence on which the Tribunal relied in reaching its decision. Evidence of that kind adduced by Mr Allen was:
1. The MacCarthy Report. This is an 89 page report entitled, "An Investigation into the use of sound moderation for hunting and gaming control" prepared for the Research Committee, Game Council NSW by Dr Martin MacCarthy, Professor Martin O'Neill and Dr Helen Cripps of Edith Cowan University WA. It was tabled in the NSW Parliament on 24 August 2011 (See Hansard p 4492).
2. The Lister diagram. This diagram was attachment I to Mr Allen's affidavit dated 11 August 2015 and was described at [25] above.
3. The McGaw letter. Mr McGaw, a Team Leader with the South East Local Land Services, wrote the following letter dated 1 May 2015 to the NSW Firearms Registry in support of Mr Allen's application:
Craig Allen is a landholder in the South East LLS area. Craig's property is in a known area for feral animals such as wild dogs and feral pigs. These animals are declared in NSW, and landowners must continuously and fully suppress them at all times. To assist with this control the use of a silenced firearm may be of use, where multiple targets are encountered and to humanely destroy the pest.
1. Conversations with professional shooters. At [49] of his affidavit, Mr Allen gave the evidence at [32] above.
2. The Commissioner's fact sheets; at [79] of the reasons the Tribunal referred to the Firearms Registry fact sheet applicable at that time. Under the heading "What genuine reason would apply to a permit for a silencer?" the following information is provided in relation to control of feral animals:
A person who is authorised by a licence or permit to possess and use firearms and who can provide evidence that establishes that they require to possess and use the silencer for an occupational/business purpose such as the control of feral animals.
The applicant must establish that there is a genuine requirement to muffle the noise of gunshot, either from a public safety perspective, a personal perspective or where the situation requires that other animals in the vicinity are not disturbed by the sound of gunshot.
Under the heading "Who would be able to establish a genuine reason to possess and use a silencer?" the factsheet provides that:
A person employed by a government agency, such as an employee of National Parks and Wildlife or the Livestock Health and Pest Authority and who is required to control feral animals or vermin by use of a firearm, OR
A person who is a licensed contract shooter and contracted to control feral animals or vermin on behalf of a government agency or on behalf of another person by use of a firearm, OR
A person on behalf of a registered pest control business who can establish a genuine reason for possession and use of a silencer to control feral animals or vermin by use of a firearm, OR
A prohibited weapons dealer, theatrical armourer, collector or person on behalf of a museum.
The evidence in chief adduced by the Commissioner which one or both parties regarded as evidence on which the Tribunal relied in reaching its decision was:
1. Detective Sergeant Snow's affidavit dated 5 October 2015, the most relevant part of which was as follows:
There is no evidence to prove that the use of a silencer will confuse target animals. Firing .308 Winchester calibre firearms fitted with a silencer with the trajectory parallel to a large hard surface (such as a wall, building or even a dense stand of trees) would create reflections of the sound of a shot that may conceal the source of a shot. This is a common tactic used by various military forces throughout the world. However, in a bushland scenario, depending on the density of vegetation, when firing a firearm, with or without a silencer, may also cause this sound reflection. The fact that the remainder of a group of target feral animals disperse after one animal is shot is likely to be as a result of seeing the target animal drop after having being shot.
The Tribunal referred to all the evidence listed above and did not indicate that it would not rely on any of that evidence. We must now consider whether, on the basis of all the evidence, there was no evidence or no probative evidence of the finding that it is necessary in the conduct of Mr Allen's business to use a silencer.
The Commissioner's own fact sheet applicable at that time, envisaged that a permit for a silencer may be issued to cull feral animals: Version 1.3, October 2013. One situation in which a permit may be issued was said to be where there is a "genuine requirement to muffle the noise of gunshots" for example "where the situation requires that other animals in the vicinity are not disturbed by the sound of gunshot".
The Commissioner's criticisms all go to the weight of the evidence. For example, it was submitted that the McGaw letter does not go to the efficacy of silencers and is mere speculation on the writer's part. When the Tribunal considered this evidence at [79] of its decision, nothing was said about Mr McGaw's qualifications or whether he had ever used a silencer. Mr Allen says his qualifications are apparent from the letter head.
In relation to the Lister diagram the Commissioner submitted that the Tribunal knew nothing about the author and did not comply with Procedural Direction 3 (Expert Witnesses), in relation to expert evidence. The MacCarthy report was not prepared for the purpose of the Tribunal proceedings but to advocate for legislative change. The Commissioner contended Detective Sergeant Snow's evidence does not corroborate the Lister diagram. The hearsay evidence from professional shooters should not have been given any weight in circumstances where those persons or their qualifications were not identified.
These matters, if accepted, all affect the weight of the evidence. Even if all the evidence has a relatively low probative value, it cannot be said that the Tribunal's finding was based on no probative evidence. This ground of appeal has not been made out.
[12]
Fifth question of law- manifest unreasonableness
The final ground of appeal was that the Tribunal's decision was not "in accordance with the rules of reason" (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]) or "lacks an evident and intelligible justification" at [76]:
Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
The Commissioner relied on the following propositions in support of this ground:
1. the Tribunal relied on unreliable and manifestly deficient material in support of its conclusion;
2. the Tribunal relied on the Lister diagram when it accepted that it should be given no weight and on the evidence from professional shooters when it had not admitted that evidence;
3. on the basis of [59] of the decision, the Tribunal based its conclusion, at least in part, on a prediction that the use of a silencer may mitigate the feral pest problem in the future:
Shooting is the most efficient and humane method but comes with the problem of groups of ferals scattering at the sound of the first shot. Cogent evidence from more than one source shows that use of a silencer may mitigate that problem. That is in part a prediction rather than an established fact, but it is a rational prediction based on objective evidence.
1. the only reasonable conclusion is that Mr Allen has not demonstrated that it is necessary in the conduct of his business as a sheep grazier to possess or use a silencer.
We have rejected the Commissioner's proposition that the Tribunal excluded the Lister diagram. The reference to the Tribunal partly basing its conclusion on a prediction is not one which justifies the label of manifest unreasonableness. The rational basis for the Tribunal's decision was the evidence on which it relied. Even if that evidence was relatively weak it had some probative value and the decision does not lack an evident or intelligible basis.
[13]
Appeal on grounds other than questions of law
In oral submissions the Commissioner sought leave to appeal on grounds other than questions of law: NCAT Act, s 80(2). This ground largely repeated ground four, that there was a lack of probative evidence to support the Tribunal's conclusion.
The general principles for granting leave were summarised in Collins v Urban [2014] NSWCATAP 17 at [84].
(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];
The Commissioner has not identified any issue of principle, question of public importance, matters of administration or policy which might have general application or an injustice which is reasonably clear. None of the Tribunal's findings is clearly mistaken. Apart from the Tribunal's failure to give the Commissioner an opportunity to cross-examine Mr Allen about the evidence from the professional shooters the Tribunal went about its fact finding process in an orthodox manner.
[14]
Orders
1. Leave for the Commissioner to appeal on grounds other than questions of law is refused.
2. Appeal dismissed.
[15]
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: 29 June 2016