Curtis v Commissioner of Police, NSW Police Force

1. On 14 December 2025, two gunmen shot fifteen people at Bondi during a celebration of the Jewish holiday of Hanukkah. Following that incident, the legislature passed the Terrorism and Other Legislation Amendment Act 2025 (the Amendment Act). The Amendment Act commenced on 24 December 2025.
2. The Amendment Act removed the entitlement of persons to apply to the Tribunal for review of relevant decisions under the Firearms Act, and removed the powers of the Tribunal to deal with such applications. The Amendment Act inserted a new Part 13 of Schedule 3 to the Firearms Act containing transitional provisions. Clause 44 of Schedule 3 (within Part 13) provides:

44 Review rights for certain other decisions

(1) An application to the Civil and Administrative Tribunal under Part 8 in relation to a relevant decision made, but not finally determined, before the commencement is taken to have been withdrawn by the person who made the application.

(2) In this clause -

commencement means the commencement of this clause.

relevant decision means a decision other than a decision to make a firearms prohibition order against a person.

1. There is no dispute that the decision to revoke the appellant's firearms licence is a "relevant decision" or that his application to the Tribunal was made before "the commencement" of clause 44.

Was the appellant's application to the Tribunal "finally determined"?

1. The parties agreed, in submissions, that the application had been finally determined by the Tribunal's decision at first instance.
2. Notwithstanding the parties' joint position, the Appeal Panel must satisfy itself that it has jurisdiction.
3. The Appeal Panel, constituted by one of the members of the present panel, found in Commissioner of Police, NSW Police Force v Herth [2026] NSWCATAP 57 (Herth), that an application for administrative review of a firearms decision is "finally determined" within clause 44 of Schedule 3 to the Firearms Act, when the Tribunal has made an order under s 63 of the Administrative Decisions Review Act 1997 in relation to the decision under review. We agree with that conclusion, for the reasons given in Herth.
4. The Tribunal made its decision on 4 November 2025. Mr Curtis appealed from that decision on 2 December 2025. On 24 December 2025, when clause 44 of Sch 3 to the Firearms Act commenced, that appeal was pending. At that time, Mr Curtis's application to the Tribunal under Part 8 of the Firearms Act was "finally determined" within clause 44 of Schedule 3 to the Firearms Act. Accordingly, clause 44 did not apply to it.

1. The Appeal Panel has power to dismiss an appeal which lacks practical effect on the basis that it is "lacking in substance" within s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) (Davis v NSW Minister for Health [2023] NSWCATAP 211).
2. As a matter of general principle, courts and tribunals will ordinarily refuse to determine issues which no longer have utility or have become moot (Commissioner of Police, New South Wales Police Force v Parish [2025] NSWCATAP 180 (Parish) at [48]). A court or tribunal has a discretion to continue to entertain a matter, even if there is no longer a live issue between the parties (see, for example, People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253). However, as the Appeal Panel observed in Parish at [52], that is generally only done in one of the following situations:

(1) Where there is a live issue of costs between the parties and resolution of the issue depends on determining the appeal on its merits...

(2) Where the appeal raises an important question of principle which will have ramifications for other cases...

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

1. The Commissioner submitted that there was no longer any practical utility to the appeal because of the limitations on the orders the Appeal Panel can make, as a result of the Amendment Act.
2. Mr Curtis accepted in his written submissions that the Tribunal would no longer have power to make a decision in his favour, if the Appeal Panel were to make an order under s 81(1)(e) of the NCAT Act, that the whole or any part of the case be reconsidered by the Tribunal. However, he maintained that the Appeal Panel could set aside the decision made by the Tribunal at first instance and substitute a new decision under s 81(1)(d) of the NCAT Act. He submitted that the Appeal Panel would have power to determine that the Tribunal erred in law, and on that basis substitute a just outcome.
3. Section 81(1) of the NCAT Act gives the Appeal Panel power to make orders which include varying or setting aside the decision under appeal (NCAT Act, s 81(1)(b), (c) and (d)). Further, s 81(2) of the NCAT Act provides:

The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.

1. Following the amendments to the Firearms Act made on the commencement of the Amendment Act, the Tribunal no longer has power to review decisions under the Firearms Act, with the exception of the decision to make a firearms prohibition order against a person. This means that the power to "exercise all the functions that are conferred or imposed by [the NCAT Act] or other legislation on the Tribunal" is illusory in circumstances where the Appeal Panel is determining an appeal from the Tribunal's decision affirming the respondent's decision to revoke a firearms licence. There is no longer any power to exercise those functions. Similarly, the Appeal Panel does not have power to substitute its own decision for the decision under review pursuant to s 81(1)(d) of the NCAT Act, unless there is a statutory power to make the new decision.
2. If the Appeal Panel were to set aside the Tribunal's decision, as Mr Curtis submitted that it should, that would not make any practical difference. The Commissioner revoked Mr Curtis's firearms licence and the Tribunal affirmed that decision. Setting aside the Tribunal's decision would leave in force the Commissioner's decision revoking Mr Curtis's licence. It would not be open to the Appeal Panel, if it considered that the Tribunal had erred, to substitute a different decision, such as a decision setting aside the Commissioner's decision to revoke Mr Curtis's licence. That is because the Firearms Act no longer confers such powers on the Tribunal, or the Appeal Panel.
3. We raised with the parties at the hearing whether s 30 of the Interpretation Act 1987 affected that conclusion in relation to pending appeals. Section 30(1) provides:

30 Effect of amendment or repeal of Acts and statutory rules

(1) The amendment or repeal of an Act or statutory rule does not -

(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or

(b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or

(d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty,

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed.

1. It could be argued (although we note that it was not argued) that Mr Curtis had a right or privilege incurred under the Firearms Act before relevant provisions were repealed (within s 30(1)(c)) such that the Appeal Panel retained the powers in the version of the Firearms Act before the Amendment Act commenced for the purpose of dealing with his appeal. In other words, the "right" or "privilege" in question could be said to be Mr Curtis's "right" to have the appeal determined in accordance with the Firearms Act as it stood at the date he lodged the appeal.
2. We are not, however, persuaded that Mr Curtis had any such right. We accept Mr Madden's submission that the relevant right or privilege is the entitlement to bring an appeal. That has been preserved. Mr Curtis did not have a "right" at the time of lodging an appeal to have the Appeal Panel make any of the orders which would have been available to it under the Firearms Act at that time, or to have the Appeal Panel decide his appeal in accordance with the Act as it stood at that time.
3. A similar conclusion about the effect of s 30(1) of the Interpretation Act, albeit in a different context, was reached by Bellew J in Director of Public Prosecutions (DPP) (NSW) v Duncan [2022] NSWSC 927 at [32]- [33]. Similarly, when considering the effect of s 30(1) of the Interpretation Act, Pepper J commented that "resort to an enactment by the making of an application under which there is an expectant benefit or advantage from that application, is not productive of a right or privilege that cannot be impaired by a change in legislation" (Council of City of Ryde v Network Developments NSW Pty Ltd [2022] NSWLEC 101 at [82]).
4. Mr Curtis had only a "hope or expectation," when he lodged his appeal, that the Appeal Panel might determine the appeal in his favour, then exercise its discretion to set aside or vary the Commissioner's decision applying the legislation in force at the time (see Duncan v Commissioner of Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 121 at [34]; Commissioner for Fair Trading, NSW Dept of Customer Service v Kalkan [2022] NSWCATAP 112 at [50]). That does not amount to an accrued right for the purposes of s 30(1) of the Interpretation Act.
5. It follows that the appeal lacks any practical utility. Mr Curtis has not identified any basis on which the appeal should be determined in these circumstances, despite lacking utility, and we find that the appropriate course is to dismiss the appeal.

1. For these reasons, at the conclusion of the hearing on 30 January 2026, we made the following order:

(1) The appeal is dismissed pursuant to section 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

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