Degotardi v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-10-23

REASONS FOR DECISION

The applicant, Mr Degotardi, applied for a category AB firearms licence on 19 April 2024. The application was refused by the respondent (the Commissioner) on 21 May 2024. The decision was affirmed on internal review on 3 July 2024.
Mr Degotardi now seeks review of that decision by this Tribunal.
For the reasons that follow, I have decided to affirm the decision of the Commissioner.

Firearms Act

The general principles of the Firearms Act 1996 (NSW) (the Firearms Act) are set out in s 3 of the Act: (1) The underlying principles of this Act are - (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety - (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows - (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

Administrative review jurisdiction

The Tribunal's jurisdiction to review a decision to refuse to issue a firearms licence is derived from section 75(1)(a) of the Firearms Act. That jurisdiction is exercised under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).
In determining an application for administrative review, s 63 of the ADR Act provides that the Tribunal is to decide what is "the correct and preferable decision" having regard to "any relevant factual material, and any applicable written or unwritten law". It is well established that the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before it at the time of the review: see for example Tannous v Commissioner of Police [2011] NSWADT 116 at [25].
In determining an application for administrative review of a decision, the Tribunal may decide to affirm the decision, vary the decision, set aside the decision and make a decision in substitution, or remit the matter for reconsideration by the administrator: ADR Act, s 63(3).
Under s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The standard of proof that applies is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [28]-[34]. However, the Tribunal is required to base its findings of fact on "logically probative material" and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54], citing Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at [62], [68].
The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: Burey v Commissioner of Police, New South Wales Police Force [2022] NSWCATAD 344 at [54] citing McDonald v Director-General of Social Security [1984] FCA 57.

The Commissioner's position

The Commissioner submits that the Tribunal should conclude that the decision to refuse Mr Degotardi's application was the correct and preferable decision because the Tribunal should: 1. not be satisfied that Mr Degotardi is a fit and proper person to hold a firearms licence: s 11(3)(a) of the Act; 2. have reasonable cause to believe that Mr Degotardi may not personally exercise continuous and responsible control over firearms because of Mr Degotardi's "intemperate habits or being of unsound mind": s 11(4)(c) of the Act; 3. consider that issuing a firearms licence to Mr Degotardi would be contrary to the public interest: s 11(7) of the Act.
The four grounds on which the Commissioner makes this submission are: 1. Mr Degotardi's provision of false or misleading information in connection with applications for a firearms licence made in January 2024, April 2024 and July 2024; 2. Mr Degotardi's "propensity to engage in harassing, anti-social and intimidating conduct towards members of the public and his sisters and disrespectful conduct towards members of the NSWPF"; 3. Mr Degotardi's "propensity to avoid interactions with members of the NSWPF in relation to firearms and licensing"; and 4. concerns for Mr Degotardi's mental health.

Mr Degotardi's position

Mr Degotardi strongly disagrees with the Commissioner's position. He submits, in summary, that he has done "nothing wrong", that any errors he made were "honest mistakes", that he has no criminal record, that a provisional apprehended violence order issued against him in September 2023 was baseless and was ultimately withdrawn due to a lack of evidence, and that he has at all times cooperated with police. He also says that he has been subjected to harassment by police which has caused him unemployment, loss of income, stress and substantial legal costs. He says that he has not yet been provided with a rational explanation for the Commissioner's decision, and that if such an explanation is provided, he will willingly accept it.

The evidence

Mr Degotardi did not provide a formal witness statement but gave oral evidence and was cross-examined. He also relied on: 1. a bundle of documents filed by email at 11.30 AM on 21 October 2024 and marked exhibit A1; 2. a bundle of documents filed by email at 11:50 AM on 21 October 2024 and marked exhibit A2; 3. a bundle of documents filed by email at 2:50 PM on 21 October 2024 and marked exhibit A3; and 4. a USB stick containing police body worn video footage and two police audio files and marked exhibit A4.
The Commissioner filed open written submissions on 14 October 2024 and relied on the following open evidence: 1. a bundle of material filed on 14 October 2024 and marked exhibit R1; 2. a bundle of material filed in accordance with s 58 of the ADR Act and marked exhibit R2; 3. a witness statement of Senior Constable Connor Storck dated 5 October 2024 and marked exhibit R3; and 4. a USB stick containing three police video files and three police audio files and marked exhibit R4.
Senior Constable Storck was cross-examined by Mr Degotardi.
A confidential session was held at the conclusion of the hearing during which the Commissioner's legal representative tendered three confidential records identified as "Tab 1", "Tab 2" and "Tab 3". These were marked as exhibits R5, R6 and R7 respectively. The Commissioner's representative also made confidential oral submissions and sought to rely on confidential written submissions filed on 14 October 2024. However, for reasons which will become apparent, I am persuaded on the basis of the parties' respective open evidence that I should affirm the Commissioner's decision. Accordingly, it will not be necessary for me to consider the Commissioner's closed evidence and submissions.

The facts

The relevant facts are set out below. I have made these factual findings on the basis of the parties' respective open evidence. Unless indicated, there is no serious dispute between the parties as to the factual findings which follow.

Mr Degotardi's firearms licensing history

Mr Degotardi held a category AB firearms licence from 10 January 2019. That licence expired on 1 February 2024.
Prior to its expiration, Mr Degotardi's firearms licence was suspended on 12 September 2023 when Mr Degotardi became subject to a provisional apprehended violence order (PAVO). That suspension occurred automatically pursuant to s 23 of the Act which provides: A licence that authorises a person to possess or use a firearm is automatically suspended on the making of an interim apprehended violence order against the person.
On 3 January 2024 Mr Degotardi submitted a renewal application in respect of his category AB licence (the January application). On 20 February 2024 the renewal application was refused because the applicant was the subject of the PAVO.
On 19 April 2024, at the suggestion of a staff member at the NSW Firearms Registry, the applicant made a fresh application for a category AB Firearms licence (the April application).
On 21 May 2024 the Commissioner's delegate made a decision to refuse the April application. The decision was made having regard to ss 11(1) and 11(7) of the Act, and specifically that: 1. Mr Degotardi had provided false or misleading information in connection with the April 2024 application; and 2. the Commissioner had information that Mr Degotardi has a history of "making vexatious phone calls, texts and voicemails which have required police interaction".
On 23 May 2024 Mr Degotardi sought internal review of that decision.
On 3 July 2024 a different delegate of the respondent conducted an internal review and affirmed the original decision.
On the same day Mr Degotardi made a further application for a category AB firearms licence (the July application). He has since withdrawn that application.
The reason given by Mr Degotardi in the April application for requiring a firearm was: "humane destruction of larger vermin/appropriate actuation, calibre and for target animal (vermin)". He acknowledged during cross-examination that he has no livestock on his property and that his vermin control work is done purely on a voluntary basis for the purpose of protecting native species. It is not income producing work.

Mr Degotardi's family dispute and the Provisional Apprehended Violence Order

It is not disputed that Mr Degotardi has been in a long-running dispute with his sisters (Elizabeth and Jennifer), and with Elizabeth's husband (Kieren).
On 23 August 2023 Mr Degotardi's sisters attended Lismore police station and made a report to police about an ongoing dispute with their brother. The police records reflect that Elizabeth and Jennifer made a number of allegations about Mr Degotardi including that: he had used a fake Facebook account to communicate with people known to them; that he had accused his sisters of "killing their mother" when she died of a stroke; that he had threatened to "spread lies and rumours about their past and put it on Facebook" and that they believed Mr Degotardi's mental health was declining as his behaviour had recently escalated.
On 10 September 2023 Mr Degotardi sent an email to Jennifer, the contents of which are discussed later in these reasons. The following day Elizabeth and Jennifer again attended Lismore police station. Jennifer gave a statement to police which included, among other things, that the email of 10 September 2023 made her feel "threatened, anxious and fearful for myself and my children's safety because I know [Mr Degotardi] to be a very irrational person from when I last spoke to him I also know him to own firearms which makes me extremely nervous."
On 12 September 2023 the PAVO was issued, and Senior Constable Storck took steps to prepare the service of the PAVO on Mr Degotardi. He also created a Computer Aided Dispatch (CAD) job for police to attend Mr Degotardi's residence and seize his firearms licence and firearms.
Senior Constable Storck telephoned Mr Degotardi that day on his mobile phone. He informed Mr Degotardi that there was an allegation of domestic violence against him, that the police were going to serve the PAVO on him, that his firearms licence was going to be suspended and that his firearms would need to be handed over. Mr Degotardi informed Senior Constable Storck that he was in Sydney at the time, that he would be returning home that Thursday, and that he would be "happy and willing" to hand over his firearms.
On 15 September 2023 Senior Constable Ross attended Mr Degotardi's residence twice, but Mr Degotardi was not home. Senior Constable Ross then telephoned Mr Degotardi who informed him that he would be in Sydney for several weeks and would attend the nearest police station in Sydney to collect the PAVO.
The PAVO was served on Mr Degotardi several days later, on 19 September 2023, when Mr Degotardi attended Windsor Police Station to collect it.
The terms of the PAVO included the words: Immediately take all firearms and prohibited weapons, along with related licences and permits you have to the police. If you keep any of these, you could be in breach of this order and could also be charged with other offences.
Mr Degotardi did not take his firearms or firearms licence to the police.
On 5 November 2023 an interaction occurred between Mr Degotardi and police after the police observed Mr Degotardi walking around their vehicle outside a supermarket in Mr Degotardi's hometown. During that interaction, which was recorded in body worn video footage included in both parties' evidence, Mr Degotardi handed his firearms licence to Senior Constable Stephenson. The following interaction subsequently occurred between Mr Degotardi and Senior Constable Stephenson: Senior Constable Stephenson: I'm not going to be able to give this back to you because you've got a … Applicant: [laughs] Okay that's fine. Senior Constable Stephenson: You've had an AVO served on you. Applicant: Yes I realise that that's why the police are following me. Senior Constable Stephenson: You understand that while you've got an AVO you can't have a firearms licence? Applicant: Yes. Senior Constable Stephenson: So your licence will be suspended. Applicant: Totally. That's why they've been following me as I said that's started this whole conversation. Even though it turned out to be a complete coincidence. Senior Constable Stephenson: Yeah um you'll need to arrange for your firearms to .. Applicant: Apparently yeah Senior Constable Stephenson: Handed in. Here's the thing. I'm going to let you know, right now you're not able to have a firearms licence. So, if you don't bring your firearms … Applicant: There's a 28-day cooling off period which has already finished. So, from a legal point of view. Senior Constable Stephenson: So, at the end of the 28 day … Applicant: I don't have to hand in my firearms. Senior Constable Stephenson: At the end of the 28-day period, you have to apply to the Commander to get your firearms back. You haven't handed them in. Applicant: Bingo.
During cross-examination Mr Degotardi acknowledged that he knew from at least time of the interaction with police on 5 November 2023 that his firearms licence was suspended.
On 7 November 2023 the Firearms Registry sent Mr Degotardi a "Notice of Expiry of Firearms Authority" that explained that his "current authority to handle, possess or use firearms is due to expire" and that he "must submit [his] renewal application before the expiry date for [his] current authority to continue." The notice did not mention that Mr Degotardi's current licence had been suspended.
On 17 November the Firearms Registry requested that police serve Mr Degotardi with a "Notice of Suspension" and seize the applicant's firearms. Whilst the Notice of Suspension was not ultimately served on Mr Degotardi, police did make some attempts to serve it. Police also made several attempts to seize Mr Degotardi's firearms. On Mr Degotardi's own evidence "all [the police] cared about" during that period was seizure of his firearms. After receiving a telephone call from police on 21 November 2023, Mr Degotardi arranged for a friend to provide the police with access to his home to enable them to seize his firearms. This occurred the following day.
The PAVO remained in force until it was withdrawn on 16 April 2024. The reason provided by Senior Constable Storck for the withdrawal of the PAVO is that Elizabeth and Jennifer did not provide statements in time for him to file and serve a brief of evidence in relation to the PAVO proceedings.
Mr Degotardi was cross-examined as to why he did not surrender his firearms licence or his firearms after being served with the PAVO on 19 September 2023. Mr Degotardi acknowledged that he had read the PAVO, which included the direction to surrender his firearms and licence. However, he said he did not surrender his firearms to police because he was in Sydney at the time he was served the PAVO, and his firearms were at home in the NSW Northern Rivers region. When asked why he did not surrender the firearms when he did eventually return home, he said he was not "about to walk into a police station carrying my firearms". Mr Degotardi did not provide any clear explanation as to why he didn't surrender his firearms licence prior to the interaction with police on 5 November 2023. Mr Degotardi emphasised that he had co-operated with police at all times with regard to the return of his firearms and his firearms licence. There is also some suggestion in Mr Degotardi's submissions that police had incorrectly told him that there was a 28-day "cooling off" period after which he was not required to surrender his firearms. However, even if police did provide this misinformation to Mr Degortardi (and there is insufficient evidence to satisfy me that they did), it was made clear to Mr Degotardi by Senior Constable Stephenson on 5 November 2023 that he was required to surrender his firearms and that the cooling off period did not apply in circumstances where the firearms had not been returned.

False or misleading information

In the January application, Mr Degotardi answered "No" to the following questions: 1. "Are you currently subject to an injunction, apprehended violence order, interim or provisional apprehended violence order, restraining order or any other prescribed order or decision in NSW or elsewhere?" 2. "At any time within the past 10 years, have you been subject to an injunction, apprehended violence order, interim or provisional apprehended violence order, restraining order or any other prescribed order or decision in NSW or elsewhere?"
Those answers were both incorrect because Mr Degotardi was, at the time of making that application, subject to the PAVO, which remained in force until it was withdrawn in April 2024.
In the April application (lodged three days after the PAVO was withdrawn) the applicant answered "No" to the following questions: 1. "At any time within the past 10 years, have you been subject to an injunction, apprehended violence order, interim or provisional apprehended violence order, restraining order or any other prescribed order or decision in NSW or elsewhere?" 2. "Have you ever had an application for a licence or permit refused under the Firearms Act 1996?"; and 3. "Have you ever had a firearms licence or permit suspended or revoked, whether in New South Wales or elsewhere?"
Those three answers were incorrect because the applicant had, in the past ten years been subject to the PAVO, had had a firearms licence refused (being the refusal in February 2024 of the January application), and had had his firearms licence suspended as a result of being subject to the PAVO.
In the further application made on 3 July 2024 the applicant answered "No" to the question: "At any time within the past 10 years, have you been subject to an injunction, apprehended violence order, interim or provisional apprehended violence order, restraining order or any other prescribed order or decision in NSW or elsewhere?"
Again, that response was incorrect. However, in an email to the Firearms Registry dated 15 July 2024 Mr Degotardi stated "As I have previously explained, please be advised that I should have answered "Yes" to this question. At the time I answered this question I did not understand what the meaning of 'interim AVO' was".
In the 3 July 2024 application Mr Degotardi also correctly answered "Yes" to the question "have you ever had a firearms licence or permit suspended or revoked whether in New South Wales or elsewhere?".
Mr Degotardi does not dispute that he provided false information in each of the January, April and July applications, in the manner outlined above, but says there are reasonable explanations for this conduct.
With regard to the incorrect response to the questions about having been subject to interim or provisional apprehended violence orders, he says he did not understand what an "interim" or "provisional" apprehended violence order was, that he thought that because the PAVO had not "gone to court" it was not relevant, that he had simply ticked the wrong boxes, and that the errors were inadvertent clerical or administrative errors. He also said that he considered the allegations forming the basis of the PAVO were a "load of rubbish", and that "the whole thing was a joke". When asked in cross-examination whether he answered "No" because he didn't respect the PAVO, he responded that he didn't "understand the gravity of it". He said that he made the mistake of not taking the PAVO as seriously as he should have.
In relation to the incorrect responses regarding the question "Have you ever had an application for a licence or permit refused under the Firearms Act 1996?" Mr Degotardi said in cross-examination that the Commissioner was "splitting hairs" and that he had understood the refusal had been in relation to a "renewal", rather than an "application".
With regard to the incorrect responses to the question "Have you ever had a firearms licence or permit suspended or revoked", Mr Degotardi said that he answered "No" because he believed that the notice of suspension had not been correctly served on him by police. He also referred to the fact that the notice issued by the respondent on 7 November 2023 inviting him to renew his licence did not mention that it had been suspended. He also repeated that he did not understand the seriousness of the questions on the application form.
When asked in cross-examination whether he answered questions on the forms untruthfully because he did not want to attach scrutiny to himself, he responded "Gee that worked didn't it. I'm not going to entertain that with an answer."
I find it difficult to accept that Mr Degotardi did not appreciate at the time he completed the January, April and July applications that his responses to the questions about the PAVO were false for the following reasons: 1. At the time of completing all the relevant applications, Mr Degotardi knew about the provisional apprehended violence order because he had had multiple conversations with police about it (including with Senior Constable Storck on 12 September 2023 and with Senior Constable Stephenson on 5 November 2023), and because he had collected it himself from Windsor Police Station on 19 September 2024. 2. Mr Degotardi acknowledged having read the PAVO when he collected it. The PAVO clearly stated in large bold font at the top of the first page that it was a "provisional" order. His assertion that he did not understand what a "provisional" order was, or that he did not realise he was subject to a provisional order, is inconsistent with the evidence about his knowledge of the matter. 3. At the time of completing the April application and the July application, Mr Degotardi was in receipt of the notice of refusal which had been issued on 20 February 2024 in respect of the January application. That notice specifically stated that Mr Degotardi was "currently subject to a Provisional Apprehended Violence Order".
Similarly, I cannot accept that Mr Degotardi did not understand that the responses he gave in the January and April applications regarding the suspension of his firearms licence were false. Regardless of whether a "Notice of Suspension" had been validly served, Mr Degotardi knew that his licence had been suspended because he had been informed about this on multiple occasions by police and because both his physical licence and his firearms had been seized in November 2023. In addition, the PAVO, which Mr Degotardi acknowledged having read, specifically stated that he was required to surrender his licence and firearms to police. Although I accept that the notice of 7 November 2023 informing Mr Degotardi that his licence was due to expire did not specifically mention that the licence had been suspended, there were ample interactions between Mr Degotardi and police in which it was made clear to Mr Degotardi that his firearms licence had been suspended. As Mr Degotardi said himself, "all [the police] cared about" during that period was seizure of his firearms - and this occurred in November 2023.
I also do not accept that Mr Degotardi did not know that the response he provided to the question in the April application "Have you ever had an application for a licence or permit refused under the Firearms Act 1996?" was false. It is clear from the terminology used in the communication issued to Mr Degotardi about the refusal that it involved refusal of an "application". The Notice of Refusal issued on 20 February 2024 clearly stated: "I advise your renewal application for a Category AB firearms licence has been refused" (emphasis added). The notice went on to state "[s]ection 11(5) of the Firearms Act 1996m prescribes that the Commissioner must not issue a licence to a person if satisfied that the person is subject to an apprehended violence order or interim apprehended violence order…". In my view, Mr Degotardi's explanation for the error - that he understood the refusal was in relation to a "renewal" rather than an "application" - is grounded solely in sophistry.
I also found Mr Degotardi's various explanations for the provision of false information to be evasive and unreliable. In particular, his assertions that the false information merely involved "clerical" or "administrative" errors, and that he had simply "ticked the wrong box", were inconsistent with other explanations given by him, including that he did not understand the questions, and that he did not take the PAVO seriously because he did not agree with the basis of it. It is also implausible that he would inadvertently "tick the wrong box" in response to the same questions on three separate occasions.
It is also relevant that Mr Degotardi is not an unsophisticated person who has rarely been involved in legal form-filling such as was the case in Hook v Commissioner of Police [2020] NSWCATAD 250. To the contrary, in his own written evidence he says he has had "an enormous amount of experience spanning several decades when it comes to writing, reading interpreting and responding to investigative policy, procedure and protocol documentation" and that he has "literally made a career out of reading, interpreting, responding to and writing Contract and Tender documentation, Training Manuals, OH&S Manuals, Insurance policies and claims, Legal documentation and interpretation of Legislation for use in the workplace generally".
One would expect a person with such experience to take great care in the completion of an important document such as a firearms application form, to readily grasp the meaning of the reasonably straightforward questions posed in the form, and to be unlikely to repeatedly make "clerical" or "administrative" errors across multiple forms.
Moreover, when asked whether he deliberately provided false information because he did not wish to attract scrutiny, Mr Degotardi refused to provide a direct response.
For all of these reasons, in my view it is likely that Mr Degotardi knowingly provided false information about material matters (being matters directly relevant to Mr Degotardi's licensing history) in each of the January, April and July applications in breach of s 70, and I find accordingly.

Mr Degotardi's interactions with the police and members of the public

The Commissioner makes a range of allegations about the applicant's interactions with his family, with members of the public and with police over a period of some 20 years. It is not necessary to canvass all of those allegations in these reasons. I will address only the more recent and serious allegations.
On 10 September 2023 Mr Degotardi's sister Jennifer received an email from Mr Degotardi's email address. It stated "Dear lying, fat, ugly pig who killed their own mother. Have it your way then. Now your children will find out what you did". The subject line of the email was "tick tock tick tock" and the email included an image of an alarm clock. In cross-examination Mr Degotardi acknowledged that he had sent this email to his sister. He did not express any remorse for having sent this email. He said he did not consider it a "problem" for him to "divulge the truth" to his sister's adult daughters. When asked whether, over the past ten years or so, he had accused his sister Jennifer of killing their mother, he replied "I don't believe it I know it".
The Commissioner alleges that Mr Degotardi used a false Facebook account to send messages to acquaintances. During cross-examination Mr Degotardi was shown copies of multiple such messages, each of which was issued under the name "Brian Shaw". Mr Degotardi acknowledged that the text contained in those messages was written by him in emails he had previously sent to his relatives, but denied that he had created or used a Facebook account under a false name. He said that another person must have created a Facebook account in the name of Brian Shaw, and copied and pasted the text from Mr Degotardi's emails into Facebook messages emanating from that account. I do not find this evidence to be credible. Mr Degotardi did not produce copies of the emails from which he says the text was copied. In any event, I find it implausible that a third person would create a false Facebook account in an unknown name, copy text Mr Degotardi had written elsewhere, and insert that text into messages emanating from the false account. I am satisfied that Mr Degotardi has used a false Facebook account to communicate with people.
In December 2023 Mr Degotardi's sisters attended Lismore Police Station to report an alleged breach of the PAVO. Specifically, an associate of Mr Degotardi had received a text message from Mr Degotardi which relevantly stated: I need to pick up the Crimper sometime this week … Don't tell your buddy I'm making Capsicum Petrol Eye & Face Cremation Napalm Fire Spray in a can so the putrid, satanic, sociopath, narcissistic, compulsive lying succubus fuckhead & its dumbass granny killer husband, can run and tell the Police, the Army, the FBI, Alan Jones, my whole family, your mum (she already killed mine), Critter, everyone I know, Tamras Cat, & anyone else she can think of, who won't give a fuck either that she's just been informed of a new bullshit lead proving … something about something about how bad I am … I'd like to catch up with you … But so long as you are in contact with that sick, twisted, degenerate, tepid bucket of bloody urine, enema piss for brains it ain't happening.
During cross-examination Mr Degotardi acknowledged sending this message, and asserted that it contained an "accurate description" of his sister and her husband. He explained that he has a "dark" sense of humour and is known for his use of "colourful" language.
On 13 January 2024 an employee of a medical practice in Sydney reported to police that a person had left three voicemail messages for the director of the practice, who is a surgeon specialising in gender reassignment surgery.
Those voicemail messages are transcribed below: Hi, just a message for Dr … Cunt. I was wondering if he could chop my cock and balls off and then ram me a big cunt. Sick, perverted, degenerate fucking pieces of shit. I also wanted a tattoo on my forehead that says Dr … Cunt cut my cock and balls off and then rammed me a big cunt. But you won't do that will ya. You wouldn't put a tattoo on someone's forehead would ya. But you'd do all that other stuff. You sick fucks. Oh what's that, you don't recommend that an 18 year old should get a tattoo on their forehead saying Dr … Cunt cut my cock and balls off and rammed me a big cunt. But you'll actually fucking do it! What the fuck is wrong with you people. You sick, perverted, degenerate weirdo.
The messages were identified by police to have emanated from Mr Degotardi's telephone. When contacted by police, Mr Degotardi confirmed that he had left those voicemail messages for the director of the medical practice. He said that he believes the practitioner to be unethical, dangerous and hypocritical. Mr Degotardi confirmed this in cross-examination. He said that he has no relationship with the medical practice but that the surgeon to whom the messages were directed was encouraging his friend's teenage daughter to have breast removal surgery and that this would be a "criminal offence". He said that he was proud of having left those messages and that thanks to him the surgery now "can't be done by law". When asked whether he had contacted police about his concerns about alleged criminal behaviour prior to leaving the messages, he said he had not. When asked whether he agreed the messages were "abusive and offensive" he said he believed they contained an accurate description of the surgeon's services. When asked whether he agreed that a recipient of those messages might be concerned, he responded "I don't care what his opinion is".
On 13 April 2024 Mr Degotardi wrote to police to complain about the cancellation of his firearms licence and the seizure of his firearms. That email relevantly says: I have not committed ANY CRIME or been charged with ANY OFFENCE. I have NOT even had my case heard at court yet! As such, your decision is obviously totally and completely unfair. In the event my AVO case is dismissed, which in all likelihood it will when heard on 16th April 2023 [sic], if you do not reinstate my license [sic], due to an obviously massively unfair loophole in your ridiculous prejudicial system, I will be taking this matter to public media and my Local Member.
On 23 May 2024 Mr Degotardi wrote to police to complain about the decision to refuse the April application. That email relevantly states: As far as I am aware I have NEVER had my Firearms Licence suspended or revoked. To my knowledge my license [sic] simply lapsed, then I was not able to reapply until the fraudulent allegations regarding the AVO were resolved in my favor. As well as this I have NEVER had a "history of making vexatious phone calls, texts and voicemails which have required police interaction. This is a defamatory lie ... I know for a fact the Police have absolutely NO evidence of any such phone calls, texts or voicemails made by me at all."
On 12 July 2024 Mr Degotardi again wrote to police attaching his response to the internal review decision. In that email he relevantly states: I feel a need to inform you that I am in no way exaggerating when I say this Statement of Reasons by you, is by far, the single worst example of legal documentation I have ever had the pleasure of wading through in my entire life.
The email goes on to make a number of allegations against the internal review process including that the internal reviewer "set about to malign my character with an intentionally targeted slanderous version of events, designed to distort the truth, twist facts, lie and exaggerate in a blatantly libelous attempt commit [sic] defamation and to destroy my reputation" and that the internal reviewer should be "summarily dismissed from their position immediately". The email also suggests that the internal review "was some sort of bizarre 'test' designed to gauge my response to what is an intentionally fabricated load of erroneous garbage designed to infuriate the reader to the utmost degree, to see if they break under the pressure of being required to read it … if after successfully reading and responding to such a ludicrous interpretation of events, they somehow manage to pass the test, you will then feel the situation safe enough to reinstate their firearms license [sic]".
The comments contained in the attached detailed response included: "this is without doubt the most ridiculous erroneous, jumbled incorrect (again) interpretation of events that I have ever read, so far this year anyway. It is riddled with so many errors that I am stupider for having read it" and "congratulations on your ridiculous, unethical, immoral, pathetic attempt to literally "blame the victim."

Is Mr Degotardi a fit and proper person to hold a firearms licence?

Section 11(3) of the Act requires that the Tribunal be satisfied that the Applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace.
The "fit and proper person" test was summarised in Doan v Commissioner of Police, NSW Police Force [2022] NSWCATAD 220 at [18] - [19] as follows: The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities: per Toohey and Gaudron JJ at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41]. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails." In the context of firearms licensing, in Barlow v Commissioner of Police, NSW Police Force [2003] NSWADT 254 at [22], JM Higgins stated that in determining the fitness and propriety of an applicant for a licence s 11(3)(a) of the Act requires the decision-maker to have regard to an applicant's conduct and whether that conduct is such that the decision-maker can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. The test is directed towards maintaining and encouraging appropriate standards in the use of firearms.
In Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at [9] the High Court defined the concept of fitness as involving three things - "honesty, knowledge and ability." In FD v Commissioner of Police, New South Wales Police [2008] NSWADT 88, the ADT said at [45]: Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.
Given the potential risks to public safety in permitting a person to have possession and use of a firearm, issuing a firearms licence is a "privilege conditional on the overriding need to ensure public safety." s 3(1)(a). As the Tribunal said in McCulla v Commissioner of Police, NSW Police Force [2024] NSWCATAD 39 (McCulla) at [24]: "fitness and propriety are … to be assessed in the heavily precautionary context of the Act, bearing in mind the overwhelming concern of the Act is to protect public safety".
Determining an individual's fitness and propriety to hold a firearms licence requires the Tribunal to consider both circumstances against and in favour of the applicant's knowledge, honesty and ability in the context of firearms possession and use: McCulla at [86].
Prior to the suspension of his licence, Mr Degotardi had held a category AB firearms licence for almost five years. There is no evidence that he has been charged at any time with any firearms or violence related offences. Mr Degotardi voluntarily attended Windsor Police Station to collect the PAVO within days of being asked to do so, and ultimately complied with police requests to surrender his firearms licence and his firearms. These factors all weigh in Mr Degotardi's favour. Mr Degotardi also relies on a character reference provided by a friend, Ms Kristen Walsh, dated 14 September 2024. That document provides specific comments about Mr Degotardi's interactions with the author's sister, but is of little assistance in assessing Mr Degotardi's fitness and propriety to hold a firearms licence.
Weighing against the matters referenced above are a number of significant considerations.
Firstly, for reasons explained, I am satisfied that, in breach of s 70 of the Firearms Act, Mr Degotardi knowingly supplied false or misleading information when completing three separate firearms applications. This goes directly to Mr Degotardi's honesty, specifically in the context of the firearms regulatory scheme. Even if I am wrong about this, then at best, Mr Degotardi displayed a reckless disregard for the importance of completing the forms accurately. The questions which Mr Degotardi answered falsely were not difficult or complex, particularly for a person with Mr Degotardi's experience in form-filling and legal matters. As the Tribunal said in Kogias v Commissioner of Police [2020] NSWCATAD 297 at [114], "[th]e functioning of a proper system of firearms licensing is one of the stated objectives of the Firearms Act, which depends on applicants providing true and correct information in a comprehensible manner". Where a person, particularly one with the applicant's experience of form-filling and legal matters, has on three separate occasions provided false information, whether deliberately or recklessly, serious doubts are raised as to whether that person would act responsibly in complying with the requirements of his licence and the regulatory scheme.
Secondly, Mr Degotardi did not act with sufficient diligence to surrender his firearms licence or his firearms after he was issued with the PAVO. Mr Degotardi has provided no cogent explanation for the failure to surrender his physical licence prior to the interaction with police on 5 November 2023. Although his absence from home at the time he was served with the PAVO reasonably explains his initial failure to surrender his firearms, it does not explain why he subsequently failed to do so, particularly after the 5 November 2023 interaction. Mr Degotardi's assertion that he was not "about to walk into a police station carrying my firearms" is not an adequate rationale. If he had genuine concerns about returning his firearms to a police station, it was open to him to contact police and inquire as to what arrangements could be made to surrender his firearms safely. There is no evidence of him having done so. The failure by Mr Degotardi to take active steps to surrender his firearms is a serious matter. It is an offence under the Firearms Act for a person to possess a firearm unless the person is authorised to do so by a licence or permit: s 7A(1). Mr Degotardi's conduct in this regard displays at best a lack of understanding of, or a careless attitude towards, important aspects of the firearms licensing scheme, and at worst an unwillingness to comply with the scheme. Again, this conduct gives rise to doubts about the likelihood of Mr Degotardi complying with the requirements of his licence and of the licensing scheme.
Thirdly, the various abusive and vexatious voicemail, text and email messages sent by Mr Degotardi to his sisters, acquaintances and members of the public, and his use of a fake Facebook account to communicate with acquaintances, particularly when considered collectively, demonstrate Mr Degotardi's propensity to act with irrationality and volatility in a manner that shows a lack of regard for public safety and the peace. The language deployed by Mr Degotardi in such messages cannot reasonably be dismissed, as suggested by Mr Degotardi, as "colourful language" or "black humour". The messages contain language which is highly offensive, disturbing and at times menacing. The fact that Mr Degotardi has shown no remorse for such conduct, and indeed expresses pride in much of it, reinforces my concerns in this regard.
Fourthly, I have concerns about the manner in which Mr Degotardi has interacted with representatives of the Commissioner. Mr Degotardi's communications regarding his dissatisfaction with the various decisions regarding his firearms licence (detailed earlier in these reasons) contain language which is highly discourteous, irrational and unreasonably argumentative. Examples include referring to the Commissioner's delegate as "completely incompetent", suggesting that the delegate had applied a test "deliberately designed to gauge [his] response to what is an intentionally fabricated load of erroneous garbage designed to infuriate the reader", and referring to the internal review report as "the most ridiculous erroneous, jumbled incorrect (again) interpretation of events that I have ever read, so far this year anyway. It is idle with so many errors that I am stupider for having read it".
Mr Degotardi's communications with the Commissioner's representatives also display an attitude of derision towards the requirements of the licensing regime. For example, it is clear from his email of 13 April 2024 that Mr Degotardi strongly objects to the fact that his firearms licence was automatically suspended due to the PAVO, despite this being a mandatory requirement under the Firearms Act. In that same email he refers to the licensing system as a "ridiculous prejudicial system"
Mr Degotardi's communications with police also reveal a lack of honesty, including in the context of the firearms licensing regime. For example, he says in the email to police of 23 May 2024 that he has never had his firearms licence suspended or revoked. However, as discussed above, Mr Degotardi was well aware by this time that his firearms licence had been suspended when the PAVO was issued.
He also says in the same email that police have "absolutely no evidence" of his having made "vexatious phone calls, text or voicemails". This statement is plainly wrong as Mr Degotardi had been contacted by police regarding such behaviour, including as recently as January 2024 when various offensive voicemail messages (discussed above) were left by Mr Degotardi at a surgical practice in Sydney. Mr Degotardi has at no stage denied having left those messages.
In my view these interactions demonstrate a lack of respect for the police and their role in ensuring public safety and the peace and an attitude of contempt towards the firearms licensing scheme. Many of these interactions also display a propensity by Mr Degotardi to act with irrationality and volatility, and at times a lack of honesty, when dealing with representatives of the respondent. Such conduct again raises doubts about the likelihood of Mr Degotardi complying with the scheme or the requirements of his licence. It is conduct which is inconsistent with that of a person who can be trusted to have possession of firearms without danger to public safety or to the peace.
In the context of firearms licensing, the Tribunal is required to form a positive state of satisfaction that an applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace: Commissioner of Police, New South Wales Police Force v EMB [2021] NSWCATAP 63 at [45]. Absent such a state of satisfaction, a licence cannot be issued.
The material before me does not positively satisfy me that this is the case. In such circumstances, the Commissioner's decision to refuse Mr Degotardi's firearms licence is the correct and preferable decision.

Public Interest

Even if I was satisfied that Mr Degotardi is a fit and proper person within the meaning of the Firearms Act, his conduct and history bring into question whether it is in the public interest to allow his application for a firearms licence.
In Commissioner of Police v Teleafoa [1999] NSWADTAP 9 at [25], the ADT Appeal Panel said: "[t]he "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".
In Constantin v Commissioner of Police, NSW Police Force [2013] NSWADTAP 16 the Appeal Panel said [at 33]: "[t]he 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
In Lukas v Commissioner of Police [2021] NSWCATAD 268 the Tribunal said at [71]: The purpose of a reference in legislation to "the public interest" is "to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker's consideration": Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657, 681. The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.
There is a degree of overlap between the considerations relevant to an assessment of the public interest and those relevant to an assessment of an applicant's fitness and propriety to hold a firearms licence, both of which are to be assessed in the heavily precautionary context of the Act, bearing in mind the overwhelming concern of the Act is to protect public safety: McCulla at [100].
My findings in relation to the issue of Mr Degotardi's fitness and propriety are relevant also to the issue of whether it would be in the public interest for him to hold a firearms licence.
I agree with the Commissioner that in view of the evidence regarding Mr Degotardi's behaviour towards the public and the police, his attitude to, and knowledge of, the firearms licensing regime, and his provision of false or misleading information in connection with various firearms licence applications, Mr Degotardi's possession and use of firearms would be entirely inconsistent with the principles of public safety, public protection and public confidence which are central to firearms licensing.
Pursuant to s 11(7) of the Act, I therefore find that it would not be in the public interest for Mr Degotardi to be issued a firearms licence.
In light of the conclusions I have reached regarding Mr Degotardi's fitness and proprietary to hold a firearms licence, and the public interest, it is not necessary for me to address the Commissioner's other submissions in support of the decision to refuse Mr Degotardi's licence application, including the submissions made in relation to s 11(4)(c) of the Firearms Act.

Conclusion

For these reasons I have concluded that Mr Degotardi is not a fit and proper person to hold a firearms licence within the meaning of s 11(3)(a) of the Act, and that it is not in the public interest for him to do so within the meaning of s 11(7) of the Act. Accordingly, the correct and preferable decision is for the Tribunal to affirm the Commissioner's decision to refuse Mr Degotardi's firearms licence application.

Order 1. The decision of the respondent to refuse the applicant's firearms licence is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2024

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