Commissioner of Police, NSW Police Force v Hogan - [2024] NSWCATAP 77 - NSWCATAP 2024 case summary — Zoe

NSWNSWCATAP

Commissioner of Police, NSW Police Force v Hogan

[2024] NSWCATAP 77

NCAT Appeal Panel|2024-02-23

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At a glance

Source facts

Court

NCAT Appeal Panel

Decision date

2024-02-23

Catchwords

[1995] HCA 58 CUB Australia Holding Pty Ltd v Commissioner of Taxation (2021) 385 ALR 731
[2003] HCA 35 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578

Source

Original judgment source is linked above.

Catchwords

[1995] HCA 58 CUB Australia Holding Pty Ltd v Commissioner of Taxation (2021) 385 ALR 731[2003] HCA 35 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578

Judgment (11 paragraphs)

[1]

Background and First Instance Proceedings

The respondent (the then applicant) applied to the Tribunal for a review under the Administrative Decisions Review Act 1997 (NSW) of a decision by the appellant under the Act to revoke the respondent's category AB firearms licence.
The respondent is a shearer and primary producer and had held a firearms licence under the Act since 1995. However, police attended his residence in April 2022 and found that the appellant had not stored ammunition in a separate locked receptacle, had not had the firearms individually secured in a locked device within a safe and had kept a firearm loaded (the particulars of the firearms offence). The licence was suspended on 17 April 2022. The respondent was subsequently charged and convicted of the offence of "Holder of Category A or B licence not have approved storage" (the firearms offence) and the licence was revoked in February 2023. At that point, the licence would have had approximately a year until it was due to expire.
There was no dispute that once the licence expired, a licence must not be issued to the respondent within 10 years of the conviction. This flowed from s 11(5)(b) of the Act read with cl 5 of the Regulations. The dispute concerned whether the correct and preferable decision was to revoke the licence prior to its natural expiry, or not.
After extracting various relevant provisions of the Act and the Regulations, the Tribunal identified that the question for the Tribunal was whether the respondent was no longer a fit and proper person to hold a licence and whether it would be contrary to the public interest that he hold the licence (at [20] of the Decision). Thereafter, the Tribunal stated principles derived from various authorities concerning the approach to determining whether the "fit and proper" test had been satisfied (at [21]-[31]) and as to the "public interest" test (at [31]-[35]).

[2]

Grounds of Appeal

The grounds of appeal as stated by the Appellant are as follows: Appeal ground 1: The Tribunal erred at law in failing to consider the offence ground of revocation (i.e., the ground in ss 11(5)(b) and 24(2)(a) of the Firearms Act 1996 (NSW) and cl 5 (1)(a)). It is considered only whether the respondent's retention of the license was in the public interest and whether he was a fit and proper person to hold it. Appeal ground 2: The Tribunal erred at law in failing to provide any reasons for rejecting the offence ground of revocation. Appeal ground 3: The Tribunal erred at law by failing to consider the offence ground of revocation in line with the approach required by the statute, as explained in decisions such as Uzelac v Commissioner of Police [2003] NSWADT 226 at [19] and Parisi v Commissioner of Police [2018] NSWCATAD 155 at [10]-[11]. The Tribunal should have approached the ground on the basis that the respondent needed to demonstrate why his case was one of the special, exceptional or anomalous cases where it was appropriate for a licensee to retain his or her license notwithstanding the Commissioner would be required to refuse a new license to an applicant with the same offending history. It did not do so. Appeal ground 4: The Tribunal erred at law in its finding at [63] that Mr Hogan was in an "intoxicated state" when questioned by the police on 18 April 2022. This was an error of law in circumstances where there was no evidence to support the finding. Indeed, the respondent's evidence was that he was not intoxicated at the time. The intoxication finding in turn formed the basis for the Tribunal failing to treat an admission by the respondent, that he normally kept his rifle loaded, as an admission of that practice. Appeal ground 5: The Tribunal erred at law in failing to give "proper, genuine and realistic" consideration to all relevant matters, in determining the seriousness of Mr Hogan's non-compliance with the safe keeping requirements in the Act. The respondent had: (1) failed to store ammunition in a separate locked receptacle; (2) individually store his firearms in a locked device within the storage safe; (3) kept a firearm loaded with ammunition. In its reasons the Tribunal considered (1) and (3) but gave no consideration (or no genuine consideration) to (2). That in itself was a serious breach and, combined breaches (1), (2) and (3) were more serious than breaches (1) and (3) by themselves.

[3]

Questions of Law

Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") provides that an appeal lies as of right on a question of law or with leave of the Appeal Panel on any other grounds. As the appellant did not seek leave, we must be satisfied that the grounds raise questions of law and confine the appeal to only those grounds which do so because - as found in Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [3], [22] - the questions of law are the subject matter of the appeal. Further, each question must be a pure question of law as addressed by Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 ("Orr v Cobar") at [44], [49]; and Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71]. Further still (and, whilst not relevant here, we note from Kudrynski v Orange City Council [2024] NSWCA 33 at [50]-[51] that where a party is unrepresented "a more generous or benevolent approach" may be warranted), in Orr v Cobar at [109] it was said by Bathurst CJ and Bell P (as the Chief Justice then was) with Garling, Johnson and Lonergan JJ agreeing: "Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law'. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above."
We are satisfied that Ground 1 raises the question of law of whether in considering the exercise of discretion, the Tribunal failed to take account of a relevant consideration in the mandatory sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Mason J) at pp 39-40; [1986] HCA 40 ("Peko-Wallsend"), that being the "offence ground of revocation".
Ground 2 raises the question of law of whether adequate reasons have been provided. Here, no express request under s 62 of the NCAT Act had been received by the Tribunal. Nevertheless, the Tribunal delivered a written statement disclosing reasons for its Decision. Recently, there has been some consideration about whether there is a duty in the Tribunal to provide reasons, absent a request under s 62 of the NCAT Act for a written statement of reasons, given that there is no common law duty to give reasons: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [43]. Whether there is such a duty raises its own question of law; but if there is no such duty, then it stands to reason that a failure to provide adequate reasons would not constitute an error of law, let alone raise a pure question of law.
The legal principles relevant to the statutory duty to provide reasons under the NCAT Act were recently summarised by the Appeal Panel in Starr v Johnston [2023] NSWCATAP 190 at [37]-[40]. In that case, the Appeal Panel determined that whether there had been adequate reasons provided raised a question of law, despite referring to some cautionary comments and contrary authority in other contexts. With respect, we agree with the Appeal Panel in Starr v Johnston and accept that Ground 2 raises a question of law, at least where, as here, the Tribunal in fact provided a document purporting to be a statement of reasons. See too Commissioner of Police, NSW Police Force v DYD [2023] NSWCATAP 244 at [11]-[18]. We find support in reaching this view from the decision of Wright J in Nu-Stone Building Ltd v McInerney [2023] NSWSC 940 who found at [58] that a written statement of reasons provided by the Appeal Panel, absent a request by the parties, was itself subject to the strictures of s 62(2) of the NCAT Act.
Ground 3 contends that the Tribunal, in the event it considered the firearms offence at all, failed to do so in accordance with the Act. In effect, this appeal ground alleges that the Tribunal misconstrued the statute or asked itself the wrong question. This raises a question of law: Craig v South Australia (1995) 184 CLR 163 at pp 177-178; [1995] HCA 58 at [12]; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [71]-[74].
Ground 4 is a "no evidence" ground and accordingly raises a question of law, as Glass JA stated in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156D-F; see also Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13].
Ground 5, uses the language of failure to give "proper, genuine and realistic" consideration in relation to all relevant matters. This formulation of words may signal a jurisdictional error: see for instance Minister for Immigration and Citizenship v SZJSS (2010) CLR 164; [2010] HCA 48 at [23]-[36]. However, as framed, we are not satisfied that Ground 5 raises a question of law. As mentioned in Orr v Cobar at [109] (extracted above) it must be possible to discern the question of law from the ground itself, irrespective of the result and without delving into the facts.
To the extent that it sought to raise as a ground of appeal that a relevant matter (in the Peko-Wallsend sense) was ignored, this would raise a question of law. In such a case, it would be important to identify whether the factor is a mandatory consideration or not. If not, the ground would fail in any event. The factor pointed to here is a particular of the charge (that he failed to individually store his firearms in a locked device within the storage safe), as opposed to the fact of the conviction. The Act makes the conviction a mandatory factor. Further, whether it is a firearms offence is also relevant (as this is the prescribed offence). However, the weight to be given to individual particulars of the charge (including no weight) and the evidence to support the conviction are matters for the Tribunal.
Weight is generally a matter for the Tribunal, subject to principles such as unreasonableness in decision making, as Mason J stated in Peko-Wallsend at pp 41-42: "[41] It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty Ltd v MacKellar; Reg v Anderson; Ex parte Ipec-Air Pty Ltd (43); Elliott v Southwark London Borough Council; Pickwell v Camden London Borough Council. I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss 5(2)(g) and 6(2)(g) of the ADJR Act in these terms. The test has been embraced in both Australia and England: Parramatta City Council v Pestell; Bread Manufacturers of NSW v Evans; Re Moore; Ex parte Co-operative Bulk Handling Ltd; Hall & Co Ltd v Shoreham-By-Sea Urban District Council; Reg v Hillingdon London Borough Council; Ex parte Royco Homes Ltd; Newbury District Council v Secretary of State for the Environment. … [42] … a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits." (Footnotes omitted)
A similar issue of weight arose in Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36, where the Appeal Panel stated: "[18] The third and fifth grounds concern the weight to be given to the evidence. On balance, we see this as inviting a review of the merits and not raising a question or questions of law. However, we have come to this view cautiously. As was recently explained in AW v WW at [58] there is a threshold beyond which such grounds raise a question of whether there has been unreasonableness in decision making or constructive failure to exercise the jurisdiction or whether the decision maker has taken into account relevant or irrelevant matters, thus engaging principles, respectively, in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; [1947] 2 All ER 680, Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 98 ALJR 196 at [25] and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42."
The Appeal Panel is satisfied that Ground 5 does not raise a question of law; and that ground will not be considered further.

[4]

Ground 1

This Ground concerns whether the Tribunal ignored a mandatory consideration. That consideration being that the appellant may revoke the licence because the respondent was convicted of the firearms offence (s 23(2)(b) and s 11(5)(b) of the Act). The first issue to consider is whether this is indeed a mandatory consideration. Mason J stated in Peko-Wallsend at p 39: "Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions: (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v MacKellar; CREEDNZ Inc v Governor-General; Ashby v Minister of Immigration. The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, that a decision-maker must take into account those matters which he 'ought to have regard to' should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion 'must call his own attention to the matters which he is bound to consider'. (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive." (Footnotes omitted)
McHugh, Hayne and Callinan JJ stated in Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35 at [56]: "If the Authority had any discretion about giving a consent once AWBI had given its approval, the Authority would have had to exercise that discretion having regard to the nature, scope and purpose of the power and the context in which it is found. It is those matters which would be relevant for the decision‑maker to take into account." (Footnote omitted)
Whether a matter is a relevant consideration in this sense is a product of statutory construction: Peko-Wallsend (Mason J at p 39).
Here, it is telling that the Act specifically identifies the commission of a prescribed offence (which includes the firearms offence) as a reason for the appellant to revoke a licence under ss 11(5)(b) and 24(2)(a) of the Act and cl 5(1)(a) of the Regulations. We are therefore satisfied that the conviction for a firearms offence is a relevant consideration.
The next issue is whether, as the appellant submits, the Tribunal indeed ignored this relevant consideration. At first instance, the appellant identified, as one of the three reasons to support the revoking of the licence, the firearms offence. The three reasons were: first, that the respondent had engaged in conduct contrary to the Act for which he had been convicted (i.e., the firearm offence); second that he was no longer a fit and proper person; and third that it was not in the public interest for him to hold a licence.
Here, the Tribunal articulated (at [20] of the Decision) the issues for consideration to be whether the appellant was no longer a fit and proper person and whether it would be contrary to the public interest for him to continue to hold a licence. The Tribunal did not, in framing the issues, expressly identify the question of how the exercise of discretion should be affected by the commission of the firearms offence. Nevertheless, we are satisfied that the Tribunal did indeed take into account the issue.
The Tribunal expressly adverted to the firearms offence several times (see for instance at [57]-[59] of the Decision), but considered that this case was distinguishable from a case where there was a history of non-compliance with the Act. The Tribunal was satisfied that, here, "there was a long record of conscientious compliance" (at [59] of the Decision). We pause to note that the appellant challenges the underpinnings of the Tribunal's conclusion that there was a long history of compliance. This is the subject of Ground 4 and is dealt with below. Further, the Tribunal stated that it "may be seen as appropriate to waive an isolated breach of the regulatory scheme" (at [59] of the Decision). Further still, the Tribunal distinguished this case from a case where breach of the Act occurred because firearms were left totally unsecured (at [66]).
As a result of these findings, it can be seen that the Tribunal concluded that the firearms offence was not a reason to uphold the appellant's decision to revoke the licence; and did not ignore the factor.
Ground 1 accordingly fails.

[5]

Ground 2

Ground 2 concerns the adequacy of reasons.
Section 62(2) of the Act provides: Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.
Section 62(3) of the Act outlines the requirements of a written statement of reasons: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.
Given the statutory scheme, it is with some caution that we have regard to authorities concerning the requirements of reasons in other contexts. However, relevantly, Bell P (as the Chief Justice then was) in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [69]-[75] clarified what is generally encapsulated by adequate reasons of a decision-maker: "[69] An important question which is raised by the present case concerns the detail of reasons required of NCAT for a discretionary decision, particularly bearing in mind that there is no right of appeal from the Tribunal's decision other than on a question of law (although a broader appeal may be permitted with leave of the Appeal Panel): see [30] above. [70] As to the latter parameter identified by Basten JA in Resource Pacific, namely the quality of reasons, it is generally accepted that the sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court. [71] That having been said, even in the less formal setting of a tribunal which has significant powers the exercise of which is capable of affecting the lives of citizens in profound ways, there are certain minimum characteristics that a Tribunal's reasons must possess. These are really supplied, in relation to the Tribunal, by s 62(3) of the CAT Act which, as noted at [52] above, requires there to be set out in reasons (when requested by a party): 62 Tribunal to give notice of a decision and provide written reasons on request … (3) … (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, and (c) the reasoning processes that lead the Tribunal to the conclusions it made. [72] Whilst s 62(3) provides a useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed. [73] In this context, in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, Fitzgerald P said of the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of this Court in Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469, that, while such a tribunal: '…might not be required to "submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ..." or "... incorporate an extended intellectual dissertation upon the chain of reasoning ...", at least "a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ..." is necessary'. It should be noted that Samuels JA in Strbak had been describing the duty of a District Court judge to give reasons as opposed to that of a tribunal member. [74] In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge: 'who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23rd September, 1976, unreported); Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826. But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.' (Footnotes omitted) [75] To like effect, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said: 'Generally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)'"
As noted in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [17], [18]: "[17] It is well recognised that a necessary consequence of the existence and extent of a right of appeal is that it will affect the obligation to give reasons; the latter must at least extend to sufficient reasons so as to permit the full enjoyment of the former … [18] It will, generally speaking, be necessary for the Tribunal to apprehend the gravamen of each side's case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn."
Here, the Tribunal identified that a licence may be revoked on the basis of the firearms offence, took into account that the respondent had been convicted of a firearms offence, but found that the offence was, in effect, an isolated incident and that the offence was, consequently, not in and of itself sufficient to sway the discretion in favour of the appellant.
Whilst brief, the applicable law, the relevant facts and the reasoning are exposed in the written statement of reasons. The reasons are therefore adequate. Whether the Tribunal erred in its conclusion is not the subject of Ground 2, but rather Ground 3.
Ground 2 accordingly fails.

[7]

The appellant's submissions in relation to Ground 3

The gravamen of the appellant's submission is that where a licence may be revoked pursuant to s 24(2)(a) of the Act because the licence would be required to be refused, then the discretion to revoke the licence would only be exercised in the licensee's favour in circumstances that are "special, exceptional, or out of the ordinary." This follows, so it was submitted, from the context which indicated that Parliament intended that such persons would ordinarily lose the privilege of their licence. Several cases were cited in support, including, Bevan v Commissioner of Police, New South Wales Police of Service [2004] NSWADT 1 at [26], Pollard v Commissioner of Police [2021] NSWCATAD 252 at [61], Schultz v Commissioner of Police, NSW Police Force [2022] NSWCATAD 399 at [26] and McGrath Commissioner of Police, NSW Police Force [2019] NSWCATAD 98 at [68].
Further, the appellant points to the principle that where, as here, specific criteria are not specified for the exercise of the discretion, there are nonetheless limits to the exercise of the discretion. The discretion must be exercised in accordance with and for the purposes of the Act, as Moshinsky J stated in CUB Australia Holding Pty Ltd v Commissioner of Taxation (2021) 385 ALR 731; [2021] FCA 43 at [68]-[80].
The factors which the appellant points to include the following: 1. Where there has been a conviction, such as in the case here, there is no possibility of a fresh licence being issued. The Act must be read to avoid internal inconsistencies or anomalies; and this would be achieved if the discretion to revoke the licence would only be exercised in the licensee's favour where the circumstances justified the maintenance of the licence until it expires, notwithstanding that the licensee is not eligible for a new licence. 2. One of the objects of the Act is to ensure firearms are stored in a safe and secure manner and the promotion of safe storage is among the Act's underlying principles: ss 3(1)(b)(ii) and (3)(2)(e). 3. Extrinsic materials support the proposition that a breach of the Act in relation to the storage of firearms "will" lead to cancellation of a licence, including New South Wales, Parliamentary Debates, Legislative Assembly, 21 June 1996. For instance, Mr Whelan in the second reading speech refers to Resolutions 6 and 8 respectively: "Resolution 6 of the Australasian Police Ministers' Council is that the common agreed grounds for license refusal or cancellation and seizure of firearms be enacted. Specifically, the APMC resolved that jurisdictions set out in legislation circumstances in which license applications are to be refused or licenses are to be cancelled. The following minimum standards are proposed. General reasons: not of good character; conviction for an offence involving violence within the past five years; contravene firearm law; unsafe storage; no longer genuine reason; not in public interest due to - defined - circumstances; not notifying change of address; license obtained by deception. … Resolution 8 is that agreed uniform standards for the security and storage of firearms be enacted … Legislation should have the effect of making failure to store firearms in the manner required an offence, as well as a matter that will lead to the cancellation of the license and the confiscation of all firearms." 1. Section 24(2)(a) identifies, specifically, that a separate ground for revoking a licence is found where a licence would not be issued; and is not merely a factor bound up in, for instance, aspects of the public interest. Accordingly, it must be accorded some separate operation, as held in Yuanda Vic Pty Ltd v Façade Designs International Pty Ltd [2021] VSCA 44. 2. It flows from this that in order to exercise the discretion in favour of the licensee, something other than that the person is found to be a fit and proper person or that it is not against the public interest to continue the licence must be pointed to. 3. Paragraphs (24)(2)(b)(ii) and (iii) of the Act also provide for the revoking of a licence where the Act has been contravened or a condition of the licence has been contravened, reinforcing the Act's protective purpose. 4. The Act treats the holding of a firearms licence as a privilege at s 3(1)(a). Further, where the licensee seeks to maintain that privilege in circumstances where they are not entitled to that privilege on a fresh license, there must be some justification.
The appellant submitted that public confidence in the licensing regime would be furthered by the construction advanced by the appellant, which would promote the objects of the Act. The appellant submitted that the following cases demonstrate that the Tribunal has ordinarily approached the exercise of discretion by requiring there be special or extraordinary circumstances before exercising the discretion in the licensees favour: Maloney v Commissioner of Police, NSW Police Force (22 November 2004, NSW Administrative Decisions Tribunal, unreported); Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50; Hocking v Commissioner of Police, New South Wales Police Service [2002] NSWADT 214; Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227 at [25]; Parisi v Commissioner of Police [2018] NSWCATAD 155 at [10]-[11]; Borton v Commissioner of Police [2021] NSWCATAD 352 at [71]; ERD v Commissioner of Police [2021] NSWCATAD 183 at [18]; Hack v Commissioner of Police [2021] NSWCATAD 88 at [13]; Easey v Commissioner of Police [2020] NSWCATAD 319 at [35]; Nepotou v Commissioner of Police [2020] NSWCATAD 101 at [28]-[29]; Uzelac v Commissioner of Police [2003] NSWADT 226 at [19]; Ying v Commissioner of Police [2023] NSWCATAD 295 at [32]; Legellant v Commissioner of Police [2023] NSWCATAD 47 at [27], [46]-[57]; Schultz v Commissioner of Police [2022] NSWCATAD 399 at [28]; and Moss v Commissioner of Police [2020] NSWCATAD 262 at [19].
The appellant submitted that for the foregoing reasons, the test of special or exceptional circumstances was justified, notwithstanding that those words are not used in the Act.
Finally, the appellant identified that cases such as Johns, that rejected that there was an anomaly between the situation where a licence is on foot and a new licence, were not inconsistent with this approach.

[8]

Consideration of Ground 3

We are mindful that the statute does not expressly require that there be special or extraordinary circumstances before there may be an exercise of discretion in favour of a licensee maintaining their licence in circumstances where they are not eligible to obtain a licence. In Grant v Commissioner of Police [2020] NSWCATAD 158 ("Grant") at [30]-[31], Senior Member Lucy noted that a differently constituted Tribunal had indeed approached the task by considering whether there were special or exceptional circumstances; yet the Senior Member identified that those words were not in the Act. The Senior Member adopted the approach of asking what exercise of discretion would promote the principles and objects of the Act.
We prefer the approach adopted by Senior Member Lucy in Grant that the discretion must be exercised in a way that promotes the objects of the Act and is consistent with its context. Further, with regard to the cases referred to above that the appellant submitted followed the "ordinary approach" we see that each case turned on its facts. That said, each is consistent with the proposition that the discretion is to be exercised in such a fashion that promotes the objects of the Act and that where a licensee is not eligible for a fresh licence, because, for instance, they have been convicted for a firearms offence, there must be some feature of the circumstances that justifies the position that the licensee should retain their licence until its expiry.
The Appeal Panel is satisfied that the Act calls for some circumstance, or justification to not treat a relevant conviction as the basis for revocation. That justification would not be present merely because the offence was a first offence or because the person had a history of compliance with the Act. To do so would be akin to giving every licensee a single opportunity to breach the conditions of the licence or the Act. Given the purpose of the Act is to protect the public, that would not promote its objects. Something more must be engaged before the privilege of maintaining a licence would be extended to someone who is no longer eligible to hold a licence. There must be some clear basis to justify the continuation of a licensee's licence, in circumstances where the Act is clear that that person is ineligible to obtain a licence. In Uzelac v Commissioner of Police [2003] NSWADT 226 at [19] Hennesy DP set out various factors that might be significant. Some may be more applicable than others, depending on the circumstances, and these may not be the only matters.
Further, for the reason that a licence may be revoked where the person is ineligible to obtain a new licence (as is the case here), it is not sufficient justification, for the maintenance of the privilege, that they satisfy other tests for being a licensee such as the fit and proper person test or that it would not be against the public interest. The architecture of the provisions indicates that being ineligible for a new licence, of itself, is sufficient for the appellant to revoke the licence. Therefore, there must be some justification for not regarding the conviction as sufficient basis for revocation.
Here, the Tribunal found the requisite justification in the fact of the respondent's history of compliance and that the offence appeared to the Tribunal to be a single incident and that the respondent did not have a practice of storing the firearms in a manner contrary to the Act. This last-mentioned matter was in part due to the Tribunal's finding that there was no practice of storing loaded firearms and is discussed further under Ground 4. Nevertheless, even if there was no practice of storing the firearms contrary to the Act, we are not satisfied that a mere history of compliance is of itself sufficient to justify the extension of the privilege.
Here, there were no other circumstances that were sought to be relied upon or were referred to by the Tribunal as being significant. The Appeal Panel is satisfied that in the absence of the requisite justification it would not promote the purposes of the Act to extend the privilege of the licence to the respondent until the natural expiry of the licence.
We are therefore satisfied that the Tribunal fell into error and Ground 3 succeeds.

[9]

Ground 4

Ground 4 concerns the Tribunal's finding that the respondent was intoxicated when he told the police, in effect, that he usually stored the rifle loaded, but with the bolt out (at [63] of the Decision). The finding that the respondent was intoxicated when he spoke to police was a critical finding, as it provided the Tribunal with a basis to disregard the apparent admission to the police by the respondent that he regularly kept a loaded firearm. The intoxication finding therefore supported the subsequent findings by the Tribunal that the firearms offence was an isolated incident and that there was a long history of compliance with the Act, which in turn underpinned the Tribunal's rejection of the firearms offence as a basis to revoke the licence.
The appellant took the Appeal Panel through transcript references and the evidence before the Tribunal. We are satisfied that there was indeed "no evidence" that the respondent was intoxicated on the day the police spoke to him about his practice. He had been intoxicated on the prior day, when the police seized the firearms. However, the police, noting his intoxication, had deliberately returned the next day to ask him further questions. The respondent accepted, under cross examination (transcript line 416), that he was not intoxicated at that time.
The issue is complicated by the fact that the real issue is whether he usually stored the firearm loaded. Whether he was intoxicated when he made that statement to police is an intermediate fact that the Tribunal found as a step along the way to determining his usual practice. Clearly the issue was important to the determination by the Tribunal, as a habit of routinely storing a loaded firearm would show that the firearms breach was not an isolated incident.
The "no evidence" ground, as a question of law, goes also to intermediate facts and not just to the ultimate facts. Deane J stated in Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321; [1990] HCA 33 at p 367: "If a statutory tribunal is required to act judicially, it must act rationally and reasonably … It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored … When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of a fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of such a duty if findings of facts upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision."
In Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263; [2001] FCA 865, Finkelstein J addressed whether the "no evidence" rule extends to evidential facts at [54]-[56]: "[54] Another distinction often drawn is between 'ultimate facts' and 'evidential facts'. Many synonyms for 'ultimate fact' are in use, such as 'operative fact', 'dispositive fact', 'material fact' and 'constitutive fact'. Ultimate facts are those to which legal consequences will attach. 'Operative [ultimate] … facts are those which, under the general legal rules that are applicable, suffice to change legal relations, that is, either to create a new relation, or to extinguish an old one, or to perform both of these functions simultaneously': W Hohfeld, Fundamental Legal Conceptions, 1923, p 32. An evidential fact, on the other hand, is one to which no legal consequences immediately attach, but which is used to establish another fact to which legal consequences do attach. Usually an evidential fact is a primary fact which affords some logical basis for inferring some other fact. That other fact may be an ultimate fact or an intermediate evidential fact: W Hohfeld, Fundamental Legal Conceptions, p 34. This distinction raises the question whether ultimate facts can be proved directly, and if they can, whether they are evidential facts. The answer is in the negative for the reason that legal effect will attach to the conclusion that a particular fact has happened, not to the conclusion that a witness observed that fact: C Morris "Law and Fact" (1942) 55 Harvard Law Review 1303 at 1328; see also W Hohfeld, Fundamental Legal Conceptions, p 34. [55] By reference to this terminology, the fact upon which a decision is based will usually be an 'ultimate fact', for it is only upon the establishment of an ultimate fact that the law directly annexes consequences. However, it is not only when there is "no evidence" for an ultimate fact that a decision can be set aside. In Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212; 27 ALD 181 the Full Court held that a decision is based on the existence of each particular fact that is 'critical' to the making of the decision. Black CJ, with whom Spender and Gummow JJ agreed, said (at FCR 220-1; ALD 188): A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. If a decision is in truth based … on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. [56] According to this view, a 'critical fact' need not be an 'ultimate fact', but in some cases may be an 'evidential fact', depending upon the significance of that fact. For example, if the existence of an ultimate fact is based on the finding of an evidential fact, then the evidential fact may be a critical fact, and if there is no evidence for that finding, the resultant decision may be an error of law. There may be other ways in which an unsubstantiated finding could be critical to the ultimate determination of the tribunal: cf S v Crimes Compensation Tribunal [1998] 1 VR 83 at 90." (Footnotes omitted)
Further, the extension of the "no evidence" rule to cover intermediate facts is observed in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [81]: "[81] A finding of ultimate fact or the drawing of inferences from intermediate facts for which there is no evidence, however, is an error of law: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32"
Even if we are satisfied that the Tribunal fell into error in finding that the respondent was intoxicated at the time he made the admission, the issue is complicated by the situation that the respondent, under cross examination, denied that he had a practice of keeping the firearm loaded and he pointed to other police inspections which showed he did not do so (transcript line 434). Earlier, he had stated that when the police questioned him about his practice, he was very tired (transcript line 424). Accordingly, had the Tribunal not considered the respondent was intoxicated when he spoke to police, there was competing evidence as to whether he had a practice or not of storing a loaded firearm and it was open to the Tribunal to accept the respondent's evidence under cross examination that he did not have such a practice; despite his apparent admission to the police.
Ultimately, we find that the appellant has made out the contention that the Tribunal fell into error in finding that the respondent was intoxicated when he made the admission. As this issue is capable of affecting the ultimate result, we would find this ground of the appeal made out. However, that does not determine the appeal. The question of whether the respondent had a practice of storing loaded firearms involves issues of credit and would, we consider, be necessary to be resolved by remitting the matter to the Tribunal.
Ultimately, we have not found it necessary to determine the appeal based on this ground. A finding most favourable to the respondent in this regard would involve a finding that he did not have a practice of keeping firearms loaded with ammunition. Even assuming that to be the case, for the reasons we have come to in relation to Ground 3, that would not be sufficient to dismiss the appeal. Even if the firearms offence was a first offence and the respondent indeed had a good compliance history, the firearms offence in and of itself was sufficient to enliven the appellant's discretion to revoke the licence and, consonant with the purposes of the Act, some basis must be shown as to why the licence should not be revoked. That basis being something above and beyond the mere fact that the offence was a first offence; which was not demonstrated here.

Commissioner of Police, NSW Police Force v Hogan

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