Commissioner of Police, NSW Police Force v Lee

Commissioner of Police, NSW Police Force v Lee - [2016] NSWCATAP 234 - NSWCATAP 2016 case summary — Zoe

[3]

Commissioner's decisions

The Commissioner of Police made seven decisions adverse to Mr Lee. Those decisions were: 1. to refuse an application for a ABCDH firearms licence (personal licence) on the basis that it was not in the public interest: Firearms Act 1996 (NSW), s 11(7); 2. to refuse an application for a high calibre pistol permit (pistol permit) on the basis that it was not in the public interest: Firearms Act, s 29(4); 3. to revoke a paintball games permit on the basis that it was not in the public interest: Firearms Act, s 30(4)(b) and Firearms Regulation 2006 (NSW), cl 20(1); 4. to revoke a firearms dealers licence on the basis that it was not in the public interest: Firearms Act, s 24(2)(d) and Firearms Regulation, cl 19; 5. to revoke a prohibited weapons dealer permit on the basis that it was contrary to the public interest; Weapons Prohibition Act 1998 (NSW), s 18(2)(a) and s 10(4); 6. to revoke a theatrical armourer dealer licence on the grounds that it was not in the public interest; Firearms Act, s 24(2)(d) and Firearms Regulation, cl 19; and 7. to refuse an application for a theatrical weapons armourer permit on the ground that it was not in the public interest: Weapons Prohibition Act, s 10(4).
We will refer to the first and second decisions as relating to Mr Lee's "personal licence and permit"; to the third decision as relating to Mr Lee's "paintball games permit" and to the last four decisions as relating to Mr Lee's "dealers and theatrical licences and permits". We will refer collectively to the legislation as the "firearms legislation".
The basis for each of the Commissioner's seven decisions was that it was "not in the public interest" or "contrary to the public interest" for Mr Lee to obtain or retain the licences and permits. Mr Lee's application for a category ABCDH licence was refused on the ground that it "contrary to the public interest": Firearms Act, s 11(7). There is an identical provision relating to the issuing of permits: s 29(4). The revocation of paintball permits is governed by the Firearms Regulation which is in similar terms. The Commissioner may revoke a permit if he "considers that it is not in the public interest for the person to whom the permit is issued to continue to hold it".

[4]

The Tribunal's findings and reasoning

The Tribunal identified its role as being to determine what the "correct and preferable decision is having regard to the material then before it": Administrative Decisions Review Act 1997 (NSW), s 63. [8] The specific issue was "whether it is or is not in the public interest" for Mr Lee to hold, or continue to hold the licences and permits. [8]
Findings on 29 items. The Commissioner relied on 29 items as demonstrating that Mr Lee should not retain any licences or permits. (Although they are numbered 1 to 28 in the reasons, there are 29 items because the Tribunal divided item 11 into 11A and 11B and reached different conclusions in relation to each item.) The items included alleged and proven breaches of firearms legislation, traffic offences and explosives offences. Each item did not necessarily correspond with a single infringement. Three items were, in effect, submissions related to Mr Lee's attitude to and understanding of the firearms scheme. The Tribunal made detailed findings as to whether each item had been established and the extent of Mr Lee's culpability.
The Tribunal's reasons suggest that it found 7 items not to be established but those items were not separately identified. [197] On our reading of the Tribunal's decision, the Tribunal found in relation to six items (2, 11A, 16, 22, 23 and 28) that there had been no breach or that the item had not been proven.
The Tribunal noted at [198] that any claim by an individual to possess or use a firearm is outweighed by the "overriding need to ensure public safety": Firearms Act, s 3(1)(a). The Tribunal then said at [199] that: In the present case there is no evidence of any egregious safety lapses with the possible exception of the "birthday party" episode. But the prevention of actual instances of dangerous conduct is not the only object of the Act … it also seeks to improve public safety by imposing controls on firearm possession and promoting their safe storage. Other explicit objects include s 3(2) (b), "to establish an integrated licensing and registration scheme for all firearms" and s 3(2)(d), "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms".
Mr Lee provided references and other evidence which satisfied the Tribunal that he was "a man of good character and a pillar of the Parkes community". [200]
When determining whether what it referred to as "specific deterrence" required that Mr Lee not retain the dealer and theatrical licences and permits, the Tribunal found that "his contraventions for the most part stemmed from his pioneering of a new business model, of which he was able to make a success, of using YouTube clips to promote his various enterprises". [200] The Tribunal decided that the requirements of specific deterrence (inadvertently referred to as 'special deterrence') had been satisfied in relation to all categories of licence and permit [205]. Mr Lee assured the Tribunal that he would not repeat his prior conduct and the Tribunal accepted those assurances. [201] - [202]
The Tribunal went on to consider the principle of what it referred to as "general deterrence" and concluded that Mr Lee's "record of repeated failures to renew licences and permits, the clear and substantial contravention involved in the operation of an unapproved firing range and his other varied infringements lead to the conclusion that general deterrence requires the application of a sanction in this case". [206] As "most of the breaches that have been established relate to his dealer and theatrical licences and permits", the Tribunal found that it was not in the public interest for Mr Lee to hold such licences and permits.
The Tribunal considered that Mr Lee's infringements relating to his personal licence and permit were "virtually non-existent" and, in any event, "of a less serious nature". [208] The Tribunal then referred to the Appeal Panel's decision in Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82 that contraventions in relation to one licence are not to be treated as irrelevant to other licences. That paragraph is central to the Tribunal's reasoning and conclusion in relation to the personal licence and permit: 209.While Hijazi does explain that contraventions in relation to one licence are not to be treated as irrelevant to other licences, it does not suggest that contraventions should be treated as having equal weight in relation to all licences. The applicant's transgressions in relation to his dealer and theatrical licences and permits are not necessarily decisive on the public interest issue in relation to his personal licences. I therefore find that it is not contrary to the public interest for him to hold personal ABCDH firearms licences and permits.
The Tribunal's reasoning process can be summarised as follows: 1. Twenty-one of the 28 items relied on by the Commissioner as being relevant to the issue of public interest have been established; 7 of those are not serious [197]; (Note: there were 29 items.) 2. Mr Lee has never posed any actual danger to the public at any time; [194] 3. because of the repeated failures to renew licences and permits and the clear and substantial contravention involved in the operation of an unapproved firing range and other varied infringements, it is contrary to the public interest for Mr Lee to retain the dealers and theatrical licences and permits; [206]-[207] 4. the infringements that relate to Mr Lee's personal licences and permit are virtually non-existent and those that do exist (such as failure to renew) are of a less serious nature [208]; 5. Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82 at [46] does not suggest that contraventions should be treated as having equal weight in relation to all licences. Mr Lee's transgressions in relation to his dealer and theatrical licences and permits were not necessarily decisive on the public interest issue in relation to the personal licence and permit; 6. the Tribunal therefore finds that it is not contrary to the public interest for Mr Lee to hold the personal licence and permit.

[5]

Grounds of appeal

A party is entitled to appeal on a "question of law': Civil and Administrative Tribunal Act 2013, (NSW) (NCAT Act), s 80(2)(b). In the Notice of Appeal, the Commissioner listed twelve grounds of appeal but withdrew grounds 1, 2 and 12 and categorised the remaining grounds into the following five questions: 1. did the Tribunal make a finding of fact for which there was no evidence or which was contrary to the overwhelming weight of the material (no evidence ground); 2. did the Tribunal fail to provide adequate reasons or fail to engage properly with the question of the public interest (inadequate reasons and relevant/irrelevant considerations ground); 3. did the Tribunal make a decision that was inconsistent with a previous decision based on the same factual circumstances (inconsistency ground); 4. did the Tribunal ask a wrong question or take into account an irrelevant consideration (wrong question and relevant/irrelevant consideration ground); and 5. did the Tribunal make a decision that was manifestly unreasonable (manifest unreasonableness ground).
After the decision was reserved, the Appeal Panel directed the parties to provide submissions on two supplementary questions: 1. in reasoning in the way set out in [207] - [208], did the Tribunal make an error of law by taking into account an irrelevant consideration, namely that, comparatively, the breaches relating to the personal licences and permits were fewer and less serious than breaches relating to the theatrical and dealer licences and permits; and 2. did the Tribunal make any other kind of error of law in comparing the number and seriousness of breaches relating to the personal licences and permits with the number and seriousness of breaches relating to the dealer and theatrical licences and permits?
Each party provided submissions on these questions.
The Commissioner also sought leave to appeal on grounds other than questions of law: NCAT Act, s 80(2)(b). We will address that application after dealing with the grounds of appeal on questions of law.
The Commissioner's grounds can be divided into three broad categories: grounds relating to findings of fact (ground 1); grounds relating to the reasoning process (grounds 2, 4 and 5) and grounds relating to comity of decision making (ground 3). We deal first with one of the grounds of appeal relating to the reasoning process - failing to take into account a relevant consideration. We then address the Tribunal's fact finding process before turning to the other question of law relating to the Tribunal's reasoning process and the comity ground.

[8]

Consideration

When determining whether it was "not in the public interest" or "contrary to the public interest" for Mr Lee to obtain or retain the personal licence and permit and the paintball games permit, the Tribunal was, in effect, re-exercising the discretions relating to public interest in the firearms legislation. When determining an appeal on a question of law, appellate bodies can only overturn the exercise of a statutory discretion in the limited circumstances identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505-506. One of those circumstances is failing to take into account a relevant consideration.
It is not an error of law for a decision maker to fail to take into account a relevant consideration unless it is bound to take that consideration into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. Because the relevant factors are not expressly stated in the firearms legislation, "they must be determined by implication from the subject matter, scope and purpose of the Act": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [15]; (1986) 162 CLR 24, 39-40 (Mason J).
The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d).
In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations.
While the Tribunal referred to infringements relating to the dealer and theatrical licences and permits, it did not give "proper, genuine and realistic" consideration to those items. Having reasoned, at [209], that those matters were "not necessarily decisive" on the public interest issue in relation to Mr Lee's personal licence and permit, the Tribunal abruptly concluded that it was not contrary to the public interest for Mr Lee to hold that licence and permit. No part of the Tribunal's reasoning process reveals any consideration of the effect of the remaining established items on that question. The Tribunal's decision should be set aside on that basis.

[13]

Consideration

When making the statement about the frequency of infringements relating to the personal licence and permit, the Tribunal did not identify which items it had in mind.
In concluding that the infringements relating to Mr Lee's personal licence were "virtually non-existent" the Tribunal did not mean that there were no such breaches. That is clear from the remainder of the sentence which states that those infringements that do relate to his personal licences (such as failure to renew) are less serious. It is apparent that what the Tribunal meant to convey was that very few infringements related to Mr Lee's personal licence and permit.
The words "relate to" indicate a connection or relationship with the infringements and the personal licence and permit. It is likely, in our view, that rather than overlooking or mischaracterising some infringements, the Tribunal confined its consideration to those infringements which had a close and direct relationship with the personal licence or permit. We explain below why we consider that to be the case.
Each licence category allows possession of particular kinds of firearms on a sliding scale according to their inherent danger. For example, a category A licence allows the holder to possess air rifles, rimfire rifles (other than self-loading), shotguns (other than pump action or self-loading) and shotgun/rimfire combinations. A category H licence allows the holder to possess pistols. In addition, a person must have a "genuine reason" for possessing firearms within each category. The three genuine reasons for which Mr Lee was issued with a Category ABCDH licence were target shooting, recreational hunting, vermin and vertebrate pest control. The high calibre pistol permit was issued for the purpose of participating in target shooting activities which require a high calibre pistol.
According to the Commissioner, Mr Lee's first breach occurred in 1987 and related to holding a firearm without a licence. It was not one of the matters in the list of 29 which the Tribunal addressed. As the Tribunal made no finding about this matter, we have not taken it into account.
The second alleged breach of the personal licence (item 1 in the decision) was a breach of storage requirements. The Tribunal found that in 2000 Mr Lee had left a firearm unsecured and that it had been stolen from his locked vehicle. The matter was reported to police who warned Mr Lee but did not charge him. The Tribunal concluded that Mr Lee's conduct constituted a breach of the legislation but noted that it had occurred 15 years ago. The Tribunal made no express finding as to the seriousness of this breach. This item related directly and exclusively to Mr Lee's personal licence.
The third alleged breach (item 4 in the decision) related to the expiry of a licence. In 2004 Mr Lee was in possession of unregistered firearms while unlicensed following the expiration of his firearms licence. The Tribunal found at [121], that this contravention indicated a lax attitude to licensing requirements particularly after the police warning he had received in 2000. This item related directly and exclusively to Mr Lee's personal licence and the Tribunal regarded it as demonstrating a "lax attitude" on Mr Lee's part.
The fourth and fifth alleged breaches (discussed under the single item 7 in the Tribunal's decision) related to the creation of two video clips: "I'll give up my guns" and "Time to get a gun". The Tribunal found that between 2010 and 2012 Mr Lee created theatrical productions using firearms and live ammunition without holding the appropriate licence or permit. Mr Lee did not have the relevant permit until 19 May 2012.
Creating theatrical productions was not one of the genuine reasons for which Mr Lee had been issued with a personal licence. The infringements relate to his personal licence in that sense, but they could equally be characterised as relating to the creation of videos which requires a theatrical permit. We infer that that is the way the Tribunal characterised item 7 because at [200] the Tribunal said that Mr Lee's "contraventions for the most part stemmed from his pioneering of a new business model, of which he was able to make a success, of using YouTube clips to promote his various enterprises". That characterisation was open on the evidence.
The sixth breach that the Commissioner submitted related to Mr Lee's personal licences (item 10 in the reasons) was Mr Lee transferring an M14 prohibited military weapon from his dealer stock to his personal category D licence relating to vertebrae pest control. The Tribunal found that this was an unauthorised transaction and Mr Lee was charged with the offence of selling or supplying the firearm to himself without the appropriate permit. The charge was subsequently withdrawn. The Tribunal concluded at [143] that this incident "counts against Mr Lee's case". As the firearm was transferred from Mr Lee's dealer stock to his personal category D licence, we infer that the Tribunal regarded it as being more closely connected with the dealer's licence. It was open to the Tribunal on the evidence to put it into that category.
The seventh and eight alleged breaches of the personal licence relates to the birthday party episode on 25 April 2012 (item 17 in the reasons). On Mr Lee's 45th birthday he and his son Jarod discharged firearms including a high calibre pistol at an unapproved shooting range. The Tribunal found at [168] that the purpose of the event was to make a video of an unusual birthday celebration. At [206] the Tribunal found that the operation of the unapproved shooting range was a "clear and substantial contravention" of the legislation. It is apparent from the Tribunal's reasoning at [168], [206] and [207] that it did not consider that the operation of the unapproved shooting range related to Mr Lee's personal licences and permit. Rather, we infer that the Tribunal connected it more closely with the dealer and theatrical licence and permit. It was open to the Tribunal on the evidence to do so.
The second limb of item 17 was failing to take all reasonable precautions to ensure that a firearm does not come into the possession of a person who is not authorised to possess it: Firearms Act, s 39(1)(c). The Tribunal found that Mr Lee gave his son a pistol to shoot at targets because he believed that he had the necessary high calibre pistol permit at the time. That was not the case. This offence does not relate directly to Mr Lee's personal licence or permit and we infer that the Tribunal did not put it into that category.
On our reading of the Tribunal's decision, when making the statement that the items relating to the personal licences and permit were virtually non-existent, it had in mind two items: item 1 (storage breach in 2000) and item 4 (failure to renew in 2004). It follows that the finding had some basis in the evidentiary material. The remaining items identified by the Commissioner had some connection with the personal licence and permit but not as close a connection as those two items.

[15]

Finding that "In the present case there is no evidence of any egregious safety lapses, with the possible exception of the 'birthday party' episode"

The full quote in context is that: In the present case there is no evidence of any egregious safety lapses, with the possible exception of the 'birthday party' episode. But the prevention of actual instances of dangerous conduct is not the only object of the Act. [199]
The Commissioner divided the first sentence into two parts: that there was no evidence of any egregious safety lapses and that the birthday party episode was only a "possible" exception to that statement. The Commissioner submitted that the Tribunal's finding was contrary to the "overwhelming evidence before the Tribunal" and that, when the breaches are considered in totality and in the context of Mr Lee's extensive history with firearms, they are obviously egregious.
Mr Lee submitted that each of the proven or established safety lapses was either minor or trivial and none was egregious.
The finding was that no "safety lapse", with the possible exception of the birthday party episode, was egregious. "Egregious" in this context means "remarkably or extraordinarily bad; flagrant:" The Macquarie Dictionary, 3rd edition, The Macquarie Library. It qualified the term "safety lapses". Safety lapses are not mentioned in the legislation but one of the underlying principles of the Firearms Act is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety": Firearms Act, s 3(1)(a) (Emphasis added.) When finding that there was no evidence of egregious safety lapses we understand the Tribunal to be referring to lapses which were so flagrant or extraordinarily bad that they posed a serious or significant threat to public safety.
The Commissioner relied on five matters which he said did not support the Tribunal's finding that there was no evidence of any "egregious safety lapses". Those matters included operating an unapproved shooting range, failing to comply with storage requirements, using firearms for a prohibited purpose or in prohibited ways in connection with productions on YouTube, possessing firearms without a licence and breaching obligations in respect of the responsible dealing of firearms.
The Tribunal found that many of Mr Lee's actions did not "entail any significant threat to public safety" and that, in relation to others, "there was no significant danger to any person". [124] and [188]
The appropriate language to describe the seriousness of any safety lapse is something about which reasonable minds may differ. By using the adjective "egregious" when making a finding as to the severity of safety lapses, the Tribunal did not make a finding for which there was no evidence.
The second limb of this finding is that the birthday party episode is a "possible exception". On 25 April 2012 Mr Lee uploaded onto YouTube a clip which showed him and his adult son firing at targets and a birthday cake. The range on which they were firing was not approved. The Commissioner listed six of the Tribunal's findings which he says demonstrate that rather than being a "possible" case of an egregious safety lapse, the birthday party episode was egregious. Those findings included that Mr Lee and his son had fired the weapon on a range that did not have the required safety features like a bullet recovery box or bullet stop and that Mr Lee wrongly claimed that he was firing weapons for testing purposes when in fact he was doing so for personal entertainment to celebrate his 45th birthday.
There was no dispute that between April 2012 and July 2013 Mr Lee operated an unapproved shooting range. Evidence given by Senior Constable Jackson included that: 1. there were no stop butts or backstops behind the targets; 2. there were numerous metal targets on the range creating the potential for ricochets or splash back of bullet fragments; 3. there was no mechanism for controlled shooting to prevent shooting left and right or up-and-down; and 4. the range was in close proximity to the paintball games area.
Further, the shooting range was just over 500 meters from a public road and other properties and high-powered ammunition could traverse a significant distance beyond that 500 meters. Senior Constable Jackson concluded in his statement of 25 April 2015 at [90], that the improvised range operated by Mr Lee posed a significant safety risk to members of the public and anyone who used firearms at the range.
The Tribunal summarised this evidence at [131] including the Commissioner's finding that the range "was found to be defective in several respects and unsafe for users and members of the public". The Tribunal also summarised Mr Lee's evidence about the safety of the unapproved range at [132].
When considering the allegations about operating an unapproved shooting range, the Tribunal quoted from another decision of the Tribunal relating to the same incident where the Member concluded that "there was nothing obvious in terms of what Mr Lee was doing that presented a danger to the public": Jarod Lee v Commissioner of Police, unreported, 22 May 2014 (at [132]). The Tribunal then relied on evidence from Mr Marchment, who was said to be "well qualified to express an informed opinion on the matter" that the test facility was in fact safe. Nevertheless, the Tribunal found the operation of that range to be "a clear and substantial contravention" of cl 85 of the Firearms Regulation. [206] That finding was in accordance with Mr Lee having been found guilty of operating an unapproved range and of using a .45 pistol on an unapproved range in breach of that provision. On appeal, the District Court dismissed the charges under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 noting Mr Lee's "good character over many years". The Tribunal found at [133] that the incident counts "against the applicant on the question of the public interest".

[17]

Finding that Mr Lee's "contraventions for the most part stemmed from his pioneering of a new business model, of which he was able to make a success, of using YouTube clips to promote his various enterprises"

At [199] and [200] the Tribunal was considering whether the public could feel confident that Mr Lee would comply with the legislative requirements if he continued to hold any licences or permits. The Tribunal found that Mr Lee was "of good character and a pillar of the Parkes community". The Tribunal went on to say later in [200] that, "[H]is contraventions for the most part stemmed from his pioneering of a new business model, of which he was able to make a success, of using YouTube clips to promote his various enterprises".
The Commissioner submitted that because there was only mention of four videos produced by Mr Lee in the decision, these were the only matters that could possibly relate to Mr Lee using YouTube clips to promote his business. Of those, it was the Commissioner's view that only two matters properly related to his YouTube business (item 7). According to the Commissioner, the fact that the birthday party episode was filmed does not mean that the contraventions "stemmed from his pioneering of a new business model". The Commissioner submitted that the video simply revealed Mr Lee's contraventions for all to see. Similar submissions were made in relation to the video "M14 - now a prohibited firearms," "Time to get a gun" and "I'll give up my guns". There was no reason, according to the Commissioner, that such activities could not have been carried out within the bounds of the law.
Mr Lee submitted that the Tribunal's finding was correct and that each of these matters was fully ventilated in the final submissions to the Tribunal.
In the passage under consideration, the Tribunal used the words "stemmed from". In our view it was open to the Tribunal to characterise the following items as stemming from the use of YouTube clips to promote his various enterprises: item 7 (creation of theatrical productions), item 17 (the birthday party episode), items 18 and 19 (video clips); item 12 (use of live ammunition in theatrical productions); item 25 (breach of the paintball games permit when making a video) and items 13 and 14 (acquiring firearms under theatrical licence).
The established breaches which had no connection with the making of a YouTube clip to promote his various enterprises, were items 1 and 3 (storage); items 4, 5 and 6 (expiration of licence or permit); items 8 and 9 (operating an unapproved range); items 10 and 11B (unlawful transfer or sale of firearms); item 20 (traffic offence) and item 21 (explosives offence). If this analysis is accepted, the Commissioner is nevertheless correct to say that infringements stemming from the use of YouTube clips were not the majority.
A decision will be set aside only where an error of law was material in the sense that it "might" or "may" have made a difference: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 353 per Mason CJ and 384 per Toohey and Gaudron JJ; House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72; (2011) 193 FCR 112 at 121. When the Tribunal made this finding it was considering Mr Lee's character. It found him to be a person of good character. A supporting statement explaining the Tribunal's understanding of the basis for some of Mr Lee's infringements, even if exaggerated, would not have made a difference to the Tribunal's ultimate decision.

[19]

Inadequate reasons and manifest unreasonableness

Alternatively, the Commissioner submitted that the Tribunal had provided inadequate reasons for its decision or that the decision was manifestly unreasonable.
The Tribunal has a common law duty to write reasons which are adequate: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279. Adequate reasons include a reasoning process which is "understandable and preferably logical as well": Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444.
This is not a case where the reasons are inadequate. The Tribunal made detailed findings of fact about each item and set out the reasoning for its decision. While that reasoning failed to take into account a relevant consideration, the Tribunal engaged with the case presented by each of the parties and set out the basis for its decision: Whalen v Kogarah Municipal Council [2007] NSWCA 5 at [40].
We also reject the Commissioner's fifth ground of appeal 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 that it "lacks an evident and intelligible justification" (at [76]).
According to the Commissioner, the Tribunal's conclusion, that it was not contrary to the public interest for Mr Lee to hold the personal licence and permit was "arbitrary or capricious" and the Tribunal had "abandoned common sense". Those expressions are taken from the judgment of French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [28]. The Chief Justice explained that when exercising a discretion a decision maker may come to a conclusion "so unreasonable that no reasonable authority could ever have come to it": Associated Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 at 234 Lord Greene MR. French CJ went on: In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom . Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
According to the Commissioner, the only reasonable conclusion on the available evidence is that Mr Lee should not hold a personal licence and permit or a paintball games permit. The evidence on which the Commissioner relied in support of this ground was that Mr Lee: 1. contravened the legislation on several occasions over a lengthy period across all licences and permits despite being warned in at least one case; 2. exhibited "a certain casualness of attitude towards compliance" and "a cavalier attitude to the regulatory scheme" in relation to two of the contraventions; 3. in one case, had not breached safe storage provisions but engaged in behaviour which involved "a lapse from basic gun safety"; 4. in another case, had made "a rather self-serving assertion of incorrect interpretations of his obligations" and made a number of unlawful transactions; 5. operated an unapproved shooting range which was "a clear and substantial contravention"; and 6. contravened the law in other areas such as road safety.

[22]

Submissions

The Commissioner submitted that the Tribunal's decision to allow Mr Lee to hold a personal firearms licence and permit is inconsistent with an earlier decision of the Tribunal: Jarod Lee v Commissioner of Police, unreported, 22 May 2014. In that case the Tribunal affirmed the Commissioner's decision to revoke Mr Lee's son's personal licence and to refuse to grant him a new licence.
Both Mr Lee and his son Jarod featured in the video entitled ".45 calibre birthday party". The video shows Mr Lee and his son firing at targets. Mr Lee gives Jarod a high calibre pistol to fire shots at the target. Jarod's pistol permit had expired four months earlier. In any case, the permit only allowed shooting at specialised shooting competitions. The Tribunal found that Jarod's purpose on the day was not to test firearms but to "have fun". The Commissioner submitted to the Tribunal below that since Mr Lee was the protagonist in the birthday party episode it would be inconsistent to affirm the decision of the Commissioner in respect of Jarod Lee and then to not do so in respect of his father.
The Commissioner acknowledged that the Tribunal is not bound by the doctrine of precedent or stare decisis to follow earlier decisions of the Tribunal at first instance. Nevertheless, as a matter of comity and consistency, the Tribunal should do so. That view was expressed by Bell J in Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207, [107] where His Honour opined in relation to the Victorian Civil and Administrative Tribunal that "… where there is a properly considered decision on point, especially on a legal question and by a presidential member, considerations of consistency and predictability of decision-making and maintaining public confidence in the legal process come into play".
The three errors of law which the Commissioner contended that the Tribunal had made in relation to this ground of appeal were: 1. failing to give any proper consideration to the submission that the Tribunal, as a matter of comity and good administration, should make consistent decisions; and 2. failing to have regard to a mandatory relevant consideration, namely two of the objects of the NCAT Act which are "to ensure that the decisions of the Tribunal are consistent and of a high quality" and "to promote public confidence in tribunal decision-making in the State": NCAT Act, s 3(e) and (g); and 3. making a decision that was manifestly unreasonable.
The Commissioner also submitted that these objects lay the foundation for a legitimate expectation that the Tribunal would have regard to and generally follow a previous decision with the same, or substantially the same, factual issues: SGBB v Minister for Immigration and Multicultural Affairs [2003] FCA 709, [33]. This part of the Commissioner's submission did not identify a question of law.
Mr Lee submitted that the decision relating to Jarod Lee was a "separate and distinguishable matter". He said his case is different because of his 30 years of experience in the industry, his reputation and the financial need for him to retain various firearms licences. In addition, he said it is clear from the Tribunal's decision that his dealers and theatrical licences and permits were revoked partly because of the birthday party episode involving Jarod Lee and the Tribunal has affirmed those revocations.

[23]

Consideration

The first alleged error was failing to give any proper consideration to the submission that the Tribunal, as a matter of comity and good administration, should make consistent decisions. The Tribunal referred to that submission at [167] when making findings of fact about the birthday party episode: The respondent submits that the tribunal should accept Montgomery JM's finding in Jarod (sic: Jarod) Lee that in the scene depicted on the video the applicant is not engaged in testing the firearms used, and argues that as a matter of comity, the tribunal should exercise caution in reopening prior, considered rulings of an earlier tribunal: BY v Director-General, Attorney-General's Department [2002] NSWADT 79, [22].
The Tribunal did not expressly address this submission in its reasons but it did make factual findings about the birthday party episode which were consistent with those made by Montgomery JM. For example, at [165], the Tribunal made the following findings: 165.At the time, the applicant believed his son was authorized to use the gun depicted in the video as his son was licensed to use it on his personal licence and was able to fire it while assisting the applicant in testing it. The applicant now concedes that he was wrong in that respect as his son was unauthorized to use the firearm on that occasion. Montgomery JM had accepted that he actually believed his son had the necessary high calibre pistol permit at the time. He did not deem it necessary to check his son's high-capacity pistol permit because he had recently examined his son's firearms licence, which included pistols, and the applicant was under the impression that Jarod's high calibre permit was current, as he had obtained it only approximately 10 months before the event.
At [167] to [169] the Tribunal came to the following conclusions: 167.Like Montgomery JM, I accept that the applicant believed at the time that his son's high-capacity permit was current. I also note Montgomery JM's finding that "there was nothing obvious in terms of what Mr Lee was doing that presented a danger to the public" and the evidence that the test facility was in fact safe, according to Mr Marchment, who was well qualified to express an informed opinion on the matter. 168.The fact remains, however, that the range was unapproved by the local council or the registry, that Jarod's permit had expired, and even if it had not, it authorized use of highly-calibre handguns only for the purposes of specialized shooting competitions, which this was not. I agree with Montgomery JM's conclusion that the applicant was not engaged in testing the guns. While there may have been an element of that, the operative purpose of the event was to make a video of an unusual birthday celebration. 169.The applicant now fully admits this contravention.
The Tribunal reached factual conclusions which were consistent with those reached by the Tribunal in the Jarod Lee case. But it did not expressly address the Commissioner's submission that, as a matter of comity and consistency, it should make the same decision about Mr Lee's personal licence and permit as another Tribunal, differently constituted, had made about his son's licence.
The Commissioner did not articulate the question of law, or the error that the Tribunal is said to have made by not responding to its submission. We assume that it is based on a breach of procedural fairness. Mark Aronson and Matthew Groves have expressed the view that, "[T]he right to a 'hearing' (oral or written) necessarily implies some consideration of submissions presented: Judicial Review of Administrative Action, (5th ed 2013, Lawbook Co) at [7.20]. The authors have not been able to extract a clear test from the authorities as to the circumstances in which a Tribunal's lack of response to a submission would be a breach of procedural fairness.
There is authority for the proposition that if the Tribunal had misunderstood the basis of Mr Lee's application, and had failed to respond to it, that would have given rise to an error of law: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24]. This was not such a case. The submission on comity and consistency was not critical to the Commissioner's case. The Tribunal was not bound to refuse Mr Lee's personal licence because another Tribunal had refused Jarod's personal licence. We are not aware of any authority that would support the Commissioner's implied submission that, in the circumstances of this case, the Tribunal's failure to respond constitutes a breach of procedural fairness.
The second alleged error was that, in failing to respond to the submission, the Tribunal failed to have regard to two of the objects of the NCAT Act. The objects of the NCAT Act are not mandatory relevant considerations to be taken into account when re-exercising a discretion under the firearms legislation. The purposes or objects underlying a statute are relevant when determining how to construe a statute but that is not the issue.
The third alleged error was that the Tribunal's decision was manifestly unreasonable. We have set out the legal principles in relation to this ground at [74] to [75] above. The Tribunal's decision was not inconsistent with the previous decision on any legal question and the findings of fact were consistent with those found by that Tribunal. The Tribunal provided reasons for concluding that Mr Lee should retain his personal licence and permit including that the infringements relating to that licence were very few and less serious than those relating to other categories of licence and permit. The reasons for the Tribunal's conclusions were "evident and intelligible". But, on our reading of the Tribunal's decision, it did not include the birthday party episode in its analysis. We have found that that incident was a relevant consideration which the Tribunal was bound to take into account. There is no separate error of making a manifestly unreasonable decision.

[25]

Consideration

A paintball games permit is required if a person wants to possess paintball guns for the purpose of operating a paintball games business. The infringements relating to the paintball games permit were that Mr Lee was in possession of firearms for paintball without a permit on two occasions - once in 2008 and the other in 2013. When assessing the seriousness of those contraventions, the Tribunal concluded at [123] and [124] that Mr Lee exhibited a certain "casualness of attitude" and that he had a "cavalier attitude to the regulatory scheme".
The first two grounds of appeal relate to the distinction the Tribunal made between "actual" and "deemed" firearms. The term "firearm" is defined in the Firearms Act to mean "a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include anything declared by the regulations not to be a firearm".
There is no distinction in the legislation between firearms used for paintball and other firearms. But the type of firearms involved in an infringement and its potential to cause injury or death, is not an irrelevant consideration when exercising the public interest discretion. The seriousness of any breach and the actual or potential harm caused is a relevant factor. The Tribunal's reference to 'actual' as opposed to 'deemed' firearms was merely a way of saying that some firearms are inherently more dangerous than others and the risk to public safety of their misuse will be greater.
We agree with the Commissioner that the Tribunal asked itself the wrong question when exercising the discretion as to whether Mr Lee should retain the paintball games permit: Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. The Commissioner submitted that the questions the Tribunal should have asked were how severe was the breach and what does that breach say about the person's willingness or ability to comply with the legislation?
At [199] the Tribunal expressed the view that the prevention of actual instances of dangerous conduct was not the only object of the Firearms Act. Yet the Tribunal confined itself to just that question at [210]. It concluded that there was virtually no risk to public safety if Mr Lee continued to hold a paintball games permit. That was not the only relevant question. As the Tribunal itself said at [199], other objects, such as public confidence that those who are granted a firearms licence will comply with the legislative requirements, are also relevant.
The Tribunal did not mention the infringements relating to the paintball games permit or the other established items when reaching its conclusion at [210]. In failing to do so, the Commissioner submitted that the Tribunal erred by not giving proper and genuine consideration to all the items. We agree. In our view, as with the personal licence and permit, the Tribunal failed to take into account a relevant consideration, that is, all the established items. While the Tribunal referred to infringements relating to the paintball games permit in the body of the decision, it did not give "proper, genuine and realistic" consideration to those items or to the other established items when making its decision. No part of the Tribunal's reasoning process reveals any consideration of the effect of all the established items on the public interest.
The Tribunal's decision on the paintball games permit should be set aside on that basis.
Alternatively, the Commissioner submitted that the Tribunal did not give adequate reasons for its conclusion. This is not a case where the reasons are inadequate. The Tribunal made detailed findings of fact about each item and set out the reasoning for its decision. While the Tribunal failed to take into account a relevant consideration, it nevertheless engaged with the case presented by each of the parties and set out the basis for its decision: Whalen v Kogarah Municipal Council [2007] NSWCA 5 at [40].

[28]

Disposition

None of the matters raised by the Commissioner, even if established raise an issue of principle or a question of public importance. There is no error that is plain and readily apparent which is central to the Tribunal's decision. The Tribunal did not go about its fact finding process in an unfair or unorthodox way. We refuse leave for the appeal to be made on grounds which are not questions of law.
We have allowed the appeal and set aside the Commissioner's decisions which were favourable to Mr Lee. The Commissioner now submits that, rather than directing the Tribunal to reconsider the matter, we should substitute our own decision for that of the Tribunal: NCAT Act, s 81(1)(d) and s 81(2). The basis for this submission was that we will have gained familiarity with the case in the course of hearing and determining the appeal. The Commissioner emphasised that he did not seek to adduce any new evidence or rely on any new material.
The Appeal Panel has power, in determining an appeal, to make "such orders as it considers appropriate in light of its decision" including, as we have done, to set aside the decisions under appeal: NCAT Act, s 81(1). Having set aside a decision, the Appeal Panel may make another decision in substitution for that decision.
In House v The King, the High Court held that where, for example, a decision maker does not take into account some material consideration, the appellate body, "may exercise its own discretion in substitution for his if it has the materials for doing so": House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.
The Commissioner's submission was that we should re-exercise the discretion after making findings of fact which differ significantly from those made by the Tribunal below. For example, the Commissioner submitted that "the public simply cannot have any confidence that the Respondent will not continue to breach the 'strict' regime of the Firearms Act". ([103] of 10 March 2016 submissions). That assertion is directly inconsistent with the finding of the Tribunal that "Mr Lee is unlikely to seek to push the boundaries of permitted conduct or to neglect the obligation to seek licence or permit renewal and to remain up to date with legislative requirements". [205]
None of our conclusions has impugned any of the Tribunal's factual findings. Indeed, on the question of law appeal, the Commissioner did not challenge any of the findings made by the Tribunal on the 29 items at [114] - [196]. There is no basis for re-visiting those findings. Given the detailed findings made by the Tribunal, we have sufficient material to re-exercise the discretions. We will do so by giving "proper, genuine and realistic consideration" to all the established items.

[29]

Re-exercising the discretions

The Tribunal concluded at [206] that Mr Lee's "record of repeated failures to renew licences and permits, the clear and substantial contravention involved in the operation of an unapproved firing range and his other varied infringements lead to the conclusion that general deterrence requires the application of a sanction in this case". The Tribunal reasoned that public confidence in the licencing scheme will be maintained if "those whose conduct does not meet the required standards" are not permitted to hold a firearms licence or permit.
Even if most of the breaches relate to the dealer and theatrical licences and permits, and those relating to the personal licence and permit are less serious, Mr Lee has demonstrated by his conduct since at least 2000, that he is unable or unwilling to comply with the "strict controls on the possession and use of firearms": Firearms Act, s 3(1)(b).
Mr Lee operated an unapproved shooting range between April 2012 and July 2013. The Tribunal described that item as a "clear and substantial contravention". In April 2012, during the birthday party episode, he used a .45 rifle and a number of .45 hand guns to fire at targets and a birthday cake containing explosives. He then handed a revolver to his son Jarod who fired five rounds at targets. The Tribunal did not accept Mr Lee's explanation that he thought he was lawfully able to test firearms on his testing facility under his dealer's licence. The Tribunal did accept Mr Lee's evidence that he believed at the time that his son's pistol permit was current. Ultimately, Mr Lee admitted the contraventions.
Another incident which the Tribunal found counted against Mr Lee was the sale as a firearms dealer of a prohibited firearm to himself when he had no permit or licence for it. The Tribunal found that Mr Lee completed that transfer after being told that it was impermissible and then posted a YouTube video of himself firing it, under the title, "M14 - Now a Prohibited Weapon". Despite submitting to the Tribunal that he was purporting to conduct "testing" for the purposes of selling M14, he described his actions in the video as a "review". [142] - [143] and [172]
Mr Lee was in possession of firearms for paintball without a paintball games permit on two occasions - from March to June 2008 and again from March to April 2013. The Tribunal held that these incidents demonstrated a "casualness of attitude towards compliance with obligations as a permit holder" [122] and a "cavalier attitude to the regulatory scheme". [124].
Contrary to Mr Lee's submission a "compromise outcome" is not appropriate. Nor is it relevant that it is not unusual for the Tribunal to uphold some decisions and set aside others in a complex and lengthy matter. His infringements relate to every licence and permit he has held. They have taken place over a period of at least 13 years, despite at least one warning. They were not isolated or insignificant events. Even if there were no actual instances of dangerous conduct, Mr Lee has breached the legislation and exhibited a lax attitude over many years. In order for public confidence in the regulatory scheme to be maintained, the Commissioner's decisions should be affirmed.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (31 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (31)

Cited By (50)