Hijazi v Commissioner of Police, NSW Police Force

NCAT Appeal Panel|2015-03-16

Introduction

In September 2013 the Commissioner of Police revoked Mr Hijazi's category A, B and H firearms licences and also his category G, firearms collector's licence: Firearms Act 1996 (NSW), s 24(2). Mr Hijazi applied to the Tribunal for a review of those decisions. The Tribunal affirmed the Commissioner's decision to revoke the firearms collector's licence but set aside the decision to revoke Mr Hijazi's category A, B and H firearms licences. The Commissioner has appealed against the second decision.
We have decided to set aside the Tribunal's second decision but only on the ground that when reviewing the decision to revoke Mr Hijazi's category A, B and H licences, the Tribunal did not take into account Mr Hijazi's failure to comply with certain statutory requirements.

Background

The Tribunal set out the relevant background at [2] and [3]: Mr Hijazi has held firearms licences since 2002. Originally the licences Mr Hijazi held were in categories A and B, which deal with shotguns and rifles. In 2007 he was issued with a Probationary Pistol Permit. That permit expired in July 2008. Mr Hijazi did not intend for the permit to expire but he failed to have it renewed within time. As a result of the expiry Mr Hijazi was unlawfully in possession of firearms despite not having a valid permit or licence for them. In December 2008 members of the Police Force attended his home and seized his firearms. Two months later, in February 2009, Mr Hijazi was successful in having category H (target shooting) added to his firearms licence and the firearms previously seized were returned to him. In July 2011 Mr Hijazi obtained a collector's licence, which is commonly referred to as a category G licence (although the legislation does not designate it in that way). A licence of that kind has very stringent storage requirements attached to it; these are dealt with in s 20(e) of the Firearms Act 1996 (NSW) and clause 34(7) of the Firearms Regulation 2006, which are quoted in [8] and [9] below. Police visited Mr Hijazi's home in May 2012 to carry out an inspection of his firearms storage arrangements and were satisfied with them. However, on a further inspection carried out in January 2013, the storage arrangements were considered to be unsatisfactory and Mr Hijazi's licences were suspended.

Grounds of Appeal

The Commissioner may appeal as of right on questions of law but must obtain leave to appeal on 'other grounds': Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
The Commissioner divided the grounds of appeal on questions of law into four broad categories: 1. failing to consider the public interest ground; (grounds 1 and 2) 2. misapplication of the public interest test; (grounds 1 and 9) 3. treating category G related breaches as discrete; (ground 3) 4. failing to consider Mr Hijazi's breaches of the firearms regime when determining the relevance of his poor driving record (grounds 4, 5, 6, 7 and 8).

Relevant statutory provisions

The principles underlying the Firearms Act are set out in s 3: (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.
Section 24, which gives the Commissioner power to revoke a firearms licence, has three components. First, it provides in s 24(1) that a licence is "automatically revoked" in certain circumstances. Secondly, in s 24(1A), it provides that the Commissioner "must" revoke a licence in other circumstances. Thirdly, it gives the Commissioner discretionary power to revoke a licence in any of the seven circumstances listed in s 24(2). It is the discretionary revocation power that is under consideration in these proceedings: A licence may be revoked: (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee: (i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or (c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or (d) for any other reason prescribed by the regulations.
In this case the Commissioner relied on the statutory contravention ground in s 24(2)(b)(ii) and the public interest ground. Section 24(2)(d) provides that the Commissioner may revoke a licence "for any other reason prescribed by the Regulation." (Emphasis added.) The public interest ground is prescribed under the Firearms Regulation 2006 (NSW) in cl 19: ". . .if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence."
Part 2 of the Firearms Act, which includes s 24, commenced on 1 July 1997. The Firearms Regulation, including clause 19, commenced on 1 September 2006. Consequently the public interest has been a separate ground for revoking a firearms licence since 2006.
The Commissioner did not rely on the fitness ground in s 24(2)(a). That provision gives the Commissioner power to revoke a licence "for any reason for which the licensee would be required to be refused a licence of the same kind". Section 11(3)(a) provides that "[A] licence must not be issued unless the Commissioner is 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." There is a separate fitness ground for revoking a licence in s 24(2)(c) which does not include the public safety element. That fitness ground is not relevant to these proceedings.
The Tribunal's power on review is to decide what the "correct and preferable decision is having regard to the material then before it": Administrative Decisions Review Act 1997 (NSW), s 63(1). In determining that application the Tribunal may affirm, vary or set aside the decision and "may exercise all of the functions that are conferred or imposed . . . on the administrator who made the decision.": Administrative Decisions Review Act 1997 (NSW), s 63(2) and (3). When reviewing the administrator's decision, the Tribunal stands in the shoes of the Commissioner and determines whether the Commissioner's decision to revoke the licence is the correct and preferable decision.

Mr Hijazi's conduct and other relevant considerations

The conduct and considerations on which the Commissioner relied in revoking all of the licences was that Mr Hijazi: 1. had previously not complied with the Firearms Act because, for 5 months in 2008, he had been in possession of firearms relating to a category H licence, despite the fact that his Probationary Pistol Licence had expired: Firearms Act, s 7; 2. had not rendered the pistols which were registered under his category G licence "temporarily inoperable" as required by s 20(b) of the Firearms Act; 3. had not met all the strict storage requirements in relation to the collector's, or category G, licence as provided in reg 34(7) of the Firearms Regulation; 4. had possessed two magazines, one for each pistol registered to his category G licence, but had no permit authorising him to possess those magazines: Weapons Prohibition Act 1998 (NSW), s 7; 5. had a history of failing to comply with traffic legislation from 1998 to 2013; 6. had a lax attitude to compliance and had failed to take personal responsibility for his obligations; and 7. is known to associate with members of outlaw motor cycle gangs (OMCGs).
At [10], the Tribunal summarised these matters in the following way: There are three broad areas of concern which led to the Commissioner's revocation of Mr Hijazi's licences and which, according to the Commissioner, should lead the Tribunal to affirm the decision. They are: (a) Mr Hijazi's failure to comply with the Act and Regulation; (b) Mr Hijazi's association with members of Outlaw Motorcycle Gangs (OMCGs); (c) Mr Hijazi's generally lax attitude to public safety, as evidenced not only by Mr Hijazi's non-compliance with the firearms legislation but also by his poor driving record.

Tribunal's decision

The Tribunal outlined the evidence in relation to each of the three categories it had identified. When considering the first category, Mr Hijazi's failure to comply with the Act and Regulation, the Tribunal concluded at [25] that his shortcomings with respect to the category G requirements justified the Commissioner's decision to revoke that licence.
The Tribunal went on to consider the second category - Mr Hijazi's alleged links with OMCGs. The Tribunal also took into account several character references which Mr Hijazi had provided. The Tribunal expressed the view that the Commissioner's position in relation to these matters was 'somewhat thin' and concluded at [34] that, [A]ny fear that he may come under pressure from, or under the influence of OMCGs or other criminal elements is in my view unwarranted."
The Tribunal then dealt with Mr Hijazi's driving record at [38]: In some circumstances it is appropriate to give a poor driving record significant weight when considering a person's general attitude to compliance with the law but it must surely be regarded as of less significance when an applicant has a fully compliant history in the particular regulated activity under consideration. This is such a case. With the exception of the non-compliance in relation to the category G licence, Mr Hijazi has been fully compliant with the requirements of the legislation. Mr Hijazi has done nothing to suggest that he has a generally lax attitude to compliance; indeed, his history suggests otherwise.
Finally the Tribunal considered the fact that Mr Hijazi allowed his Probationary Pistol Permit relating to the category H licence to expire in 2008. The Tribunal accepted Mr Hijazi's evidence that his life was very busy at the time and things simply got the better of him. The Tribunal noted at [36] that "[T]here have been no similar slip-ups since and there is no reason to suppose that there will be any in the future."
At [39] the Tribunal set out its overall conclusion: Accepting, as I do, that public safety is a paramount consideration, and acknowledging that holding a firearms licence is a privilege, not a right, I am nevertheless satisfied that Mr Hijazi should have his category A, B and H licences restored. The best indicator of future behaviour is past behaviour and in that regard I am satisfied that Mr Hijazi's continued holding of a firearms licence in those categories does not place public safety at risk.

Errors when exercising discretion

On a question of law appeal the exercise of a statutory discretion, including the discretion under s 24(2) of the Firearms Act, can only be overturned in limited circumstances: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505-506. Those circumstances were summarised recently by the Court of Appeal in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14] by Beazley P, Emmett JA and Tobias AJA. The Court held that any attack on a discretionary decision must fail: ". . . unless it can be demonstrated that the decision maker: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or gave insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning."

Failing to consider the public interest ground for revoking the licences

Background

The Tribunal identified the statutory contravention ground as a ground on which the Commissioner relied but did not identify the public interest ground. The Tribunal assumed that the Commissioner's second ground was the fitness ground. The Commissioner submitted that this oversight meant that the Tribunal had made three errors of law. It had made an error of legal principle, it had failed to take into account or given insufficient weight to some relevant matter and it had given inadequate reasons.

Error of legal principle

By not identifying and addressing the public interest ground for revocation, and instead applying the fitness ground, the Tribunal has asked itself a wrong question. That is an error of legal principle. As well as asking whether Mr Hijazi had contravened any provision of the Act or Regulation, the Tribunal should have asked itself whether it was satisfied that it was not in the public interest for him to continue to hold the category A, B and H licences. As a result of that error, the Tribunal failed to separately examine the public interest ground as a ground for revocation of Mr Hijazi's licences: Lynch v Commissioner of Police New South Wales Police [2006] NSWADTAP 43 at [41].
The fact that one of the questions the Tribunal asked itself was the wrong question or that the Tribunal did not separately consider the public interest ground does not necessarily mean that the decision should be set aside. 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) 170 CLR 321 at 353 per Mason CJ and 384 per Toohey and Guadron JJ; House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112 at 121.
The fitness ground includes the requirement that the person is a person who can be trusted to have possession of firearms without danger to public safety or to the peace: Kocic v Commissioner of Police NSW Police Force [2014] NSWCA 368 at [35]. It was the Commissioner's case that by treating public safety as the only public interest consideration, the Tribunal failed to take into account other matters relevant to the public interest. That issue overlaps with the next ground of appeal which we consider below.

Failure to take into account relevant considerations

The Commissioner submitted that the Tribunal's failure to ask itself whether it was in the public interest that Mr Hijazi's licence be revoked meant that it failed to take into account, or gave insufficient weight to, matters of public interest. It was said that while public safety, which is a component of the fitness ground, is an important matter to be considered, it was not the only matter advanced by the Commissioner.
The matters which the Commissioner submitted that the Tribunal did not take into account because it did not consider the public interest ground was public confidence in the administration of the licencing system. The factual matters which were said to be relevant to that matter included Mr Hijazi's breaches of the Firearms Act as well as the absence of any reasonable explanations for those breaches and his failure to show personal responsibility for complying with his obligations under the legislation. The Commissioner had put to Mr Hijazi in cross examination and to the Tribunal in submissions, that Mr Hijazi was deliberately ignorant of his personal obligations.
According to the Commissioner, the Tribunal addressed that submission only insofar as it related to public safety. The Tribunal did not consider whether public confidence in the administration of the licencing system would be affected if Mr Hijazi was to continue to hold category A, B and H licences. The Commissioner pointed to the Tribunal's findings at [23] - [25] and highlighted the following two findings which the Tribunal did not consider in the context of public confidence in the administration of the licencing system: 1. Mr Hijazi's "own evidence is that he became fully aware of the safe storage requirements for a category G licence, and the requirement to have the collector's pieces rendered inoperable, only after his licences were revoked"; at [23]; and 2. Mr Hijazi's "shortcomings with respect to category G compliance bespeak a failure on Mr Hijazi's part to inform himself fully on what his responsibilities were": at [25].
The Commissioner also highlighted the fact that Mr Hijazi contravened his obligations as a licence holder in 2008 and then again in 2012 and 2013. The lax attitude to his obligations required the Tribunal to consider whether it would affect public confidence in the administration of the licencing system if Mr Hijazi showed no regard for the advice and warnings given to him when seeking licences and permits and then later failed to comply with his obligations.

Meaning of public interest

In order to determine the grounds of appeal relating to asking the wrong question and failing to take into account a relevant consideration, we must determine the meaning of "public interest" and the extent to which that ground overlaps with or includes other grounds such as the fitness ground. The statutory context of s 24(2) is outlined at [7] - [10] above. The public interest ground in the Firearms Act gives the Commissioner power to revoke a licence "for any other reason prescribed by the Regulation" (Emphasis added). The "other reason" as prescribed in Cl 19 of the Regulation is ". . . if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence." Depending on the statutory context, courts have held either that the public interest ground is a stand-alone ground and that other factors cannot be considered or that there is no "bright line" between public interest grounds and other grounds.
In O'Sullivan v Farrer (1989) 168 CLR 210, the High Court was considering the meaning of s 45(1)(c) of the Liquor Act 1982 (NSW) which allowed objections to be made to an application for the removal of an off-licence to sell liquor from certain premises. The Court described that legislation in the following terms at 214: ". . . s45 specifies a number of grounds of objection that may be taken to the grant of an application, including, as is expressly recognized by s45(1)(c), an application for the removal of an hotelier's licence and an off-licence (retail) from one location to another. S45(1)(c) permits objection on the ground that "for reasons other than the grounds specified in para(a) and para(b) and subs(2) and subs(3), it would not be in the public interest to grant the application".
The Court went on to say at 216, that: The public interest considerations which may ground an objection under s45(1)(c) are, in terms, confined to considerations "other than the grounds specified in para(a) and para(b) and subs(2) and subs(3)". But, these limits aside, the Act provides no positive indication of the considerations by reference to which a decision is to be made as to whether the grant of an application would or would not be in the public interest. Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission, per Dixon J at 505.
In a different statutory context, the Court of Appeal has held that there is no "bright line" between the public interest factors and other factors: Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368. In that case the Court of Appeal was interpreting the Firearms Act in the context of a licence being issued or refused under s 11 rather than in the present context which involves the revocation of a licence under s 24(2). Section 11(3) and (7) state that; (3) A licence must not be issued unless: (a) the Commissioner is 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, and . . . (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (Emphasis added)
One issue in Kocic v Commissioner of Police, NSW Police Force was whether the public interest considerations in s 11(7) include the applicant's fitness or character which are mentioned separately in s 11(3)(a). Basten JA held at [41] that there is no "bright line" that can be drawn between the factors relevant under subs (7) and those which must be addressed under the other subsections." His Honour went on to say that, "there may be characteristics of the applicant which do not lead the Commissioner to refuse a licence under one of the other provisions, but nevertheless permit the refusal of a licence under subs (7)." Leeming JA at [93] and White J at [106] agreed that "the matters that can be taken into account in making an assessment of the public interest pursuant to s 11(7) are not limited to matters not otherwise dealt with by s 11(3)." In White J's words at [106]: Such considerations may include an applicant's fitness or character if that is relevant to an assessment of the public interest (as it would usually be), notwithstanding that an applicant's fitness or character is a separate matter to be considered under s 11(3)(a).
The Court of Appeal's conclusion was supported by the fact that s 11(7) is prefaced with the words "[D]espite any other provision in this section". That form of words is not repeated in s 24(2)(d) or cl 19.
In our view, because s 24(2)(d) speaks of "any other reason prescribed by the Regulation", the public interest ground is intended to cover grounds for revocation that are in addition to those listed in s 24(2) or, at least, where those considerations are not sufficient in their own right to warrant refusal. That conclusion is consistent with that reached by the predecessor to the Administrative and Equal Opportunity Division of the Tribunal, the Administrative Decisions Tribunal (ADT), when considering the same legislation.
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 the ADT was dealing with s 15 of the Security Industry Act 1997 (NSW) which regulates the issuing of security licences. Two grounds on which the decision maker must refuse a licence under s 15 are that the person "is not a fit and proper person to hold the class of licence sought" and ". . .if the Commissioner considers that the grant of the licence would be contrary to the public interest." In relation to that provision, the Appeal Panel stated that at [25] that: "The 'public interest' is an inherently broad concept giving an appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operated in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.
In Ward v Commissioner of Police [2000] NSWADT 28, the ADT expressed the view that at [33] that these comments apply equally to the Firearms Act.
The relationship between fitness grounds and yet another public interest ground has also been considered in the context of s 11 of the Firearms Act relating to the issuing of licences. In Constantin v Commissioner of Police [2013] NSWADT AP 16 the Appeal Panel of the ADT was considering the fitness ground in s 11(3) and another public interest ground - s 11(5A). The Commissioner found that the appellant was not a fit and proper person to be granted a licence and the licence was refused under s 11(3)(a). In addition or alternatively, the Commissioner found that it was not in the public interest for him to be granted such a licence and relied on s 11(5A). The Appeal Panel held at [33] that: The 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.
The Commissioner's reference to public confidence in the administration of the licencing system is taken from this passage. Despite the Appeal Panel's wording, in our view, it is not a separate consideration which the Tribunal should take into account when determining whether to revoke a licence in the public interest. The ability of the Commissioner to revoke a licence on the basis of any of the seven circumstances listed in s 24(2) is intended to generate public confidence in the administration of the licencing system. But that matter is a goal of the legislative scheme, not a relevant factor to be taken into account.
Despite the fact that the Tribunal asked itself a wrong question, that error was not material in the sense that it might have led to a different decision. A component of the fitness ground is that the person "can be trusted to have possession of firearms without danger to public safety or to the peace". Improving public safety is also one of the underlying principles of the Firearms Act. In substance, the Tribunal considered the public interest ground when determining whether Mr Hijazi was a person who could be trusted to possess firearms without danger to public safety or to the peace. Both the public interest ground and the fitness ground are discretionary value judgments. With two exceptions which we will address below, the Tribunal considered all the factual matters on which the Commissioner relied including Mr Hijazi's lax attitude to his obligations.

Inadequate reasons

Alternatively, the Commissioner submitted that the Tribunal had failed to give adequate reasons with respect to the public interest ground for revocation.
The Tribunal has a duty to provide each party with "a written statement of reasons" for its decisions: NCAT Act, Sch 6 cl 11. A statement of reasons must set out: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made: NCAT Act, Schedule 6, cl 11(4) and NCAT Act s 62(3).
In addition, at common law, there is a judicial duty to give adequate reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70. That duty applies to tribunals as well as courts: Absolon v NSW TAFE [1999] NSWCA 311 at [66]. Whether or not a Tribunal has failed to give adequate reasons will depend on the circumstances of the individual case.
The Tribunal made findings on material questions of fact, set out its understanding of the applicable law and provided reasons for its conclusions: NCAT Act, s 62(3). Although the Tribunal asked itself a wrong question, it did not fail to engage with the case presented by the parties. The Tribunal considered all the relevant evidence and made findings about contentious evidence. It considered both the statutory contravention ground and, in substance, the public interest ground.

Treating category G related breaches as discrete and failing to take into account 2008 breach when considering poor driving record

The Commissioner submitted that the Tribunal had mistakenly quarantined the statutory contraventions relating to the category G firearms licence when considering the decision to revoke the category A, B and H licences. The Tribunal found at [13], [14] and [25] that Mr Hijazi's failure to comply with the safe storage and other requirements meant that the category G licence should be revoked. The Tribunal then considered Mr Hijazi's history in relation to the category A, B and H licences and concluded at [26] that: However, the category G non-compliance stands in stark contrast to Mr Hijazi's years of satisfactory, and safe, compliance in respect of the other licence categories. Constable Luikens himself accepted that the safe storage shortcomings related only to category G. Except in relation to that category, there have been no adverse events; there is nothing to suggest that public safety has been at risk. At least as far as the remaining licence categories are concerned, Mr Hijazi understood the requirements and he complied with them. Failure to comply with one discrete set of requirements can and should be quarantined from Mr Hijazi's other compliant behaviour.
The Tribunal's decision to 'quarantine' Mr Hijazi's failure to comply with the statutory requirements in relation to the category G licence from its consideration in relation to the category A, B and H licences constitutes a failure to take into account a relevant consideration. The statutory contravention ground in s 24(2)(b)(ii) provides that: "A licence may be revoked if the licensee contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention."
This provision relates to the contravention of "any provision of this Act". The Commissioner relied on the contraventions in relation to the category G, collector's licence as also justifying the revocation of the category A, B and H licences. In those circumstances, when considering the statutory contravention ground, the Tribunal should have taken all the breaches into account. The weight to be given to any contravention is a matter for the Tribunal.
The Tribunal's decision to set aside the Commissioner's decision to revoke Mr Hijazi's category A, B and H firearms licences should be set aside. For reasons which we give below, we have decided not to determine the merits of the case ourselves but rather to order that the Tribunal reconsider its decision taking into account the breaches of the category G licence.
Consequently, when reconsidering its decision, the Tribunal should also be mindful of the fact that it made a factual mistake by stating at [38] that, [W]ith the exception of the non-compliance in relation to the category G licence, Mr Hijazi has been fully compliant with the requirements of the legislation." It made the same mistake at [26] when the Tribunal said that except in relation to the category G licence, "there have been no adverse events." In fact Mr Hijazi had not been compliant with the requirement to have a licence or permit when possessing a prohibited pistol in 2008: Firearms Act, s 7. At [38] the Tribunal considered Mr Hijazi's poor driving record without taking into account that breach. When reconsidering its decision the Tribunal should correct that mistake.
We do not agree with the Commissioner that the Tribunal's reasoning on this point was unreasonable or irrational. While the weight to be given to any particular matter under consideration is a matter for the Tribunal, its decision will be "manifestly unreasonable" if it fails to give adequate weight to a relevant factor of great importance or gives excessive weight to an irrelevant factor of no importance: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41, Gibbs CJ and Dawson J agreeing at 30, 71; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [72]; 249 CLR 332 at 365, 366. This concept has been explained in the context of the exercise of appellate review of judicial discretion as the result being "unreasonable or plainly unjust": House v King (1936) 55 CLR 499 at 505.
We accept that on 12 July 2008, Mr Hijazi's probationary pistol licence expired. Because he continued to hold the firearms to which that licence related, he possessed firearms without being authorised to do so by the licence. That was a breach of s 7 of the Firearms Act. Police seized the firearms on 18 December 2008 about 5 months after the licence had expired.
The Tribunal addressed this breach at [36] and [37]: There are two further issues to deal with. The first is Mr Hijazi's allowing his probationary pistol permit to expire in 2008. The second is his driving record. As for the expiry of the permit, Mr Hijazi said, and I accept, that his life was very busy at the time - he had just got married and was purchasing a home to live in - and things simply got the better of him. There have been no similar slip-ups since and there is no reason to suppose that there will be any in the future.
While the Tribunal's comments at [26] and [38] suggest that the Tribunal did not take the 2008 breach into account, it did take that breach into account expressly at [36] and [37]. The Tribunal's mistake in [26] and [38] should be corrected but those oversights do not justify setting aside the Tribunal's decision on the ground of irrationality.

Appeal on other grounds

The Commissioner also appealed on 'other grounds' and submitted that leave should be granted to extend the appeal to the merits of the Tribunal's decision: NCAT Act, s 80(2)(b). The grounds the Commissioner gave for seeking leave make it clear that the Commissioner was in fact submitting that, having found legal error, the Tribunal should deal with the internal appeal by way of a new hearing: NCAT Act, s 80(3).

Dealing with the internal appeal by way of a new hearing

The Commissioner submitted that the appeal could conveniently be disposed of by turning directly to the merits of the decision under appeal. The reasons supporting that course were said to be that: 1. extending the appeal to the merits is unlikely to involve additional evidentiary material; 2. it would be more efficient and expeditious for the Appeal Panel to dispose of the matter rather than remitting it to the Tribunal at first instance; 3. the decision on the merits was wrong, infected with significant error and contrary to evidence and/or the overwhelming weight of the evidence; and 4. a review of the merits can be conveniently undertaken on the documentary evidence and transcript with the benefit of written submissions.
The Commissioner submitted that the Appeal Panel should re-determine the matter. To the extent that the issue for determination involve questions of fact, the Appeal Panel should have all the necessary factual material before it to make the correct and preferable decision. The Commissioner added that there is no prejudice to him in extending the appeal to the merits bearing in mind that the Mr Hijazi does not seek to adduce any new evidence or rely on any new material.
We have decided not to deal with the internal appeal by way of a new hearing because the Tribunal below heard the evidence and is more likely to be able to make a better informed decision than the Appeal Panel. While this is not the quickest, or perhaps the cheapest option, it is the one which, in this case, will achieve the most just outcome: NCAT Act, s 36.

Orders The decision of the Tribunal to set aside the Commissioner's decision to revoke the appellant's category A, B and H firearms licences is set aside. The decision is to be reconsidered by the Tribunal in accordance with the following direction: The Tribunal should determine whether to set aside the Commissioner's decision taking into account the matters that it took into account in the decision as well as each of the statutory contraventions whether those contraventions relate to the category A, B and H licences or not.

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: 07 May 2015

Firearms Regulation 2006(NSW)

Liquor Act 1982(NSW)

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