Lee v Commissioner of Police, NSW Police Force

Supreme Court of NSW|2017-10-31|Before: Bellew J

34 Date of Decision: 28 October 2016 Before: Deputy President N Hennessy, Senior Member L Robberds QC

Judgment

By an amended summons filed on 15 August 2017 Stephen Gary Lee ("the plaintiff") seeks leave to appeal from a decision of the Appeal Panel ("the Appeal Panel") of the New South Wales Civil and Administrative Tribunal ("the Tribunal") delivered on 28 October 2016. On that occasion the Appeal Panel allowed an appeal by the NSW Commissioner of Police ("the first defendant") against an earlier decision of the Tribunal constituted by a Senior Member. The effect of the decision of the Appeal Panel was to confirm the decision of the first defendant to refuse the plaintiff's applications for a firearms license and a high calibre pistol permit, and to revoke a paintball games permit which had previously been issued to him, pursuant to the Firearms Act 1996 (NSW) ("the FA") and/or the Firearms Regulations 2006 (NSW) ("the FR").

THE FACTS

The plaintiff made application for, or alternatively held, various licenses and permits pursuant to the FA and the FR as well as the Weapons Prohibition Act 1998 (NSW) ("the WPA"). On or about 22 October 2013, the first defendant made a determination to: 1. refuse the plaintiff's application for a ABCDH firearms licence (a personal licence) on the basis that the issue of such a licence to him was not in the public interest: s 11(7) of the FA; 2. refuse the plaintiff's application for a high calibre pistol permit on the basis that the issue of such a permit to him was not in the public interest: s 29(4) of the FA; 3. revoke the plaintiff's paintball games permit on the basis that was not in the public interest for him to hold such a permit: s 30(4)(b) of the FA and cl 20(1) of the FR; 4. revoke the plaintiff's firearms dealers licence on the basis that it was not in the public interest for him to hold such a licence: s 24(2)(d) of the FA and cl 19 of the FR; 5. revoke the plaintiff's prohibited weapons dealer permit on the basis that it was not in the public interest for him to hold such a permit: ss 18(2)(a) and 10(4) of the WPA; 6. revoke the plaintiff's theatrical armourer dealer licence on the grounds that it was not in the public interest for him to hold such a licence: s 24(2)(d) of the FA and cl 19 of the FR; and 7. refuse the plaintiff's application for a theatrical weapons armourer permit on the ground that it was not in the public interest for him to hold such a permit: s 10(4) of the WPA.
The plaintiff applied to the Tribunal for a review of these determinations. The Tribunal set aside the determinations in 6, (ii) and (iii) above, but confirmed those that remained: Lee v Commissioner of Police, NSW Police Force [2015] NSWCATAD 254.
The first defendant appealed to the Appeal Panel against the Tribunal's determination. The Appeal Panel allowed the appeal and set aside the Tribunal's determination: Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234. The effect of the Appeal Panel's decision was to confirm the first defendant's determinations in 6, (ii) and (iii) above.
The present proceedings are, of course, not a merits review. Moreover, any grant of leave to appeal is limited to a question of law. That said, the plaintiff's history of non-compliance with aspects of the legislative regime governing the possession and use of firearms is relevant to the respective determinations of the Tribunal and the Appeal Panel. The particulars of that non-compliance are helpfully set out in the written submissions of the first defendant and may be summarised as follows: 1. in 1987 the plaintiff was charged with, and convicted of, possessing a firearm without a licence; 2. in 2000 the plaintiff breached ss 39 and 40 of the FA by not storing firearms safely; 3. in April 2004 the plaintiff breached s 7 of the FA by possessing unregistered firearms whilst unlicensed; 4. between March and June 2008 the plaintiff breached ss 7A(1) and 30(6) of the FA by possessing a total of 21 firearms for paintball without a permit; 5. between 2010 and 2012 the plaintiff breached subs 7A(1) and (2) of the FA by using firearms and live ammunition for theatrical production; 6. in December 2011 the plaintiff, in breach of s 51A(1) of the FA acquired a prohibited weapon from a person who was not licensed to have it; 7. in April 2012 the plaintiff permitted an unlicensed person, namely his son, to use a high calibre pistol; 8. between April 2012 and July 2013 the plaintiff operated an unapproved shooting range in breach of cl 85 of the FR; 9. in August 2012 the plaintiff acted in breach of s 51(1) of the FA by selling a prohibited firearm to an unauthorised person; 10. between August 2012 and July 2013 the plaintiff twice used firearms on an unapproved shooting range, in breach of cl 5 of the FR; 11. between August 2012 and July 2013 the plaintiff sold and transferred a prohibited firearm from his dealer's business to himself, in breach of ss 7(1) and 51(1)(a) of the FA; 12. in September 2012 the plaintiff, contrary to s 51A(1) of the FA, acquired a prohibited weapon from a person who was not licensed to have it; 13. between March and April 2013 the plaintiff breached ss. 7A(1) and 30(6) of the FA by possessing 64 firearms for paintball without a permit; 14. in May 2013 the plaintiff supplied a prohibited firearm to an unauthorised person, and made an incorrect entry in his dealer's records; 15. in June/July 2013 the plaintiff stored live ammunition in firearms, in breach of s 40 of the FA; and 16. in July 2013 the plaintiff breached s 19(1) of the FA by not storing firearms in compliant storage facilities.

THE DECISION OF THE TRIBUNAL

In order to understand the issues before this Court, it is firstly necessary for me to set out some aspects of the Tribunal's determination.
Commencing at [114] of its reasons, the Tribunal exhaustively summarised the plaintiff's various breaches of the FA and FR which I have set out above. Having made reference to the decision in Hijazi v Commissioner of Police, NSW Police Force [2014] NSWCATAD 148, the Tribunal said (commencing at [207]): [207] It will be noticed that most of the breaches that have been established relate to his dealer and theatrical licences and permits. I find that it is not at present in the public interest for him to hold such licences and permits. [208] Infringements that relate to his personal licences are virtually non-existent, and those that do (such as failure to renew) are of a less serious nature. The respondent relies on Hijazi at [47] as authority for the proposition that the tribunal should not compartmentalize or quarantine conduct or contraventions to a particular licence or permit. The conduct may, and does, reflect more broadly against the applicant and shows an entrenched and fundamental failure to understand and comply with his obligations as a licence holder, it is submitted. [209] While Hijazi does explain that contraventions in relation to one licence are not to be treated as irrelevant to other licences, it does not suggest that contraventions should be treated as having equal weight in relation to all licences. The applicant's transgressions in relation to his dealer and theatrical licences and permits are not necessarily decisive on the public interest issue in relation to his personal licences. I therefore find that it is not contrary to the public interest for him to hold personal ABCDH firearms licences and permits. [210] The final category of breaches are those relating to his paintball operations. These are of a different class from those arising from the possession or use of actual (as against deemed) firearms. For the reasons set out above I think there is virtually no risk to public safety in the applicant's holding the necessary permits. Indeed, as Cr Keith OAM explains, there is a demand for his services in that activity, which is seen as beneficial to the Parkes rural community by providing activities for young people. I find that it is not contrary to the public interest for the applicant to hold a paintball permit.

THE GROUNDS OF APPEAL BEFORE THE APPEAL PANEL

The grounds of appeal which were relied upon by the plaintiff before the Appeal Panel were set out in its judgment (at [15]) in the following terms: 1. whether the Tribunal made a finding of fact for which there was no evidence or which was contrary to the overwhelming weight of the material ("the no evidence ground); 2. whether the Tribunal failed to provide adequate reasons or fail to engage properly with the question of the public interest ("the inadequate reasons and relevant/irrelevant considerations ground"); 3. whether the Tribunal made a decision that was inconsistent with a previous decision based on the same factual circumstances ("the inconsistency ground"); 4. whether the Tribunal asked a wrong question or take into account an irrelevant consideration ("the wrong question and relevant/irrelevant consideration ground"); and 5. whether the Tribunal made a decision that was manifestly unreasonable ("manifest unreasonableness ground").
After the Appeal Panel had reserved its decision, the parties were directed to provide submissions in respect of two further issues, namely: 1. whether the Tribunal made an error of law by taking into account an irrelevant consideration, namely that comparatively, the breaches relating to the personal licences and permits were fewer and less serious than breaches relating to the theatrical and dealer licences and permits; and 2. whether the Tribunal made any other kind of error of law in comparing the number and seriousness of breaches relating to the personal licences and permits with the number and seriousness of breaches relating to the dealer and theatrical licences and permits.
I have dealt with specific aspects of the Appeal Panel's reasons when considering the individual grounds of appeal relied upon by the plaintiff before this Court.

Ground 1 - The Appeal Panel erred in law in finding that the Tribunal had erred on a point of law

Ground 2 - The Appeal Panel erred in finding that the Tribunal did not take into account a relevant consideration, namely the totality of the relevant conduct of the plaintiff

Ground 3 - The Appeal Panel erred in law in finding that the public interest required that the appeal by the first defendant be upheld

These three grounds largely overlap and can be conveniently dealt with together.

The reasons of the Appeal Panel

The Appeal Panel reached the following conclusions (commencing at [22]): [22] When determining whether it was "not in the public interest" or "contrary to the public interest" for Mr Lee to obtain or retain the personal licence and permit and the paintball games permit, the Tribunal was, in effect, re-exercising the discretions relating to public interest in the firearms legislation. When determining an appeal on a question of law, appellate bodies can only overturn the exercise of a statutory discretion in the limited circumstances identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505-506. One of those circumstances is failing to take into account a relevant consideration. [23] It is not an error of law for a decision maker to fail to take into account a relevant consideration unless it is bound to take that consideration into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. Because the relevant factors are not expressly stated in the firearms legislation, "they must be determined by implication from the subject matter, scope and purpose of the Act": Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [15]; [1986] HCA 40; (1986) 162 CLR 24, 39-40 (Mason J). [24] The purpose of the firearms legislation is clear from the statutory principles and objects of the Firearms Act. The possession and use of firearms is subject to the "overriding need to ensure public safety": Firearms Act s 3(1)(a). Public safety is improved by "imposing strict controls on the possession and use of firearms" and by "promoting the safe and responsible storage and use of firearms": Firearms Act s 3(1)(b). The objects of the Act include "to establish an integrated licensing and registration scheme for all firearms;" "to require each person who possesses or uses a firearm . . . to prove a genuine reason for possessing or using the firearm;" and "to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms": Firearms Act, s 3(2)(b), (c) and (d). [25] In that statutory context it is uncontentious that a relevant consideration is the applicant's previous conduct. More weight may be given to conduct which directly relates to the regulated activity, but anything that the applicant has done which could affect the public interest is relevant. The Tribunal was reviewing seven separate decisions. It was right to observe that Hijazi does not suggest that contraventions should be treated as having equal weight in respect of all licences. But in Hijazi, the Appeal Panel went on to hold that it was erroneous to quarantine contraventions that relate to one type of licence when considering whether another type of licence should be revoked. Another way of expressing that principle is that it is erroneous to treat contraventions relating to another type of licence or permit as irrelevant considerations. [26] While the Tribunal referred to infringements relating to the dealer and theatrical licences and permits, it did not give "proper, genuine and realistic" consideration to those items. Having reasoned, at [209], that those matters were "not necessarily decisive" on the public interest issue in relation to Mr Lee's personal licence and permit, the Tribunal abruptly concluded that it was not contrary to the public interest for Mr Lee to hold that licence and permit. No part of the Tribunal's reasoning process reveals any consideration of the effect of the remaining established items on that question. The Tribunal's decision should be set aside on that basis.
Subsequently, the Appeal Panel concluded (commencing at [68]): [68] While we have found that there was no error of law on the 'no evidence' ground, we consider that the way the Tribunal classified, characterised and compared the items led it to make the error of failing to take into account a relevant consideration. [69] The Tribunal's central findings in relation to the 29 items were that: (1) seven items have not been made out [197]; (2) of the 21 items that have been established, 7 are not of a serious nature [197]; (3) infringements that relate to Mr Lee's personal licences are virtually non-existent and those that do (such as failure to renew) are of a less serious nature [208]; and (4) most of the breaches that have been established relate to his dealer and theatrical licences and permits [207]. [70] The Tribunal reasoned that because relatively fewer items related to the personal licence and permit, and those items were less serious, it was not contrary to the public interest for Mr Lee to retain that licence and permit. The Tribunal should not have merely compared the items relating to one type of licence with items relating to another. Rather, as we have said at [26], the Tribunal should have taken into account all the established infringements and come to a view on the totality of the evidence. While taking a comparative approach is not a discrete error of law, by reasoning in this way, the Tribunal failed to give "proper, genuine and realistic" consideration to each of the other items.
Finally, the Appeal Panel concluded (commencing at [101]): [101] The Tribunal did not mention the infringements relating to the paintball games permit or the other established items when reaching its conclusion at [210]. In failing to do so, the Commissioner submitted that the Tribunal erred by not giving proper and genuine consideration to all the items. We agree. In our view, as with the personal licence and permit, the Tribunal failed to take into account a relevant consideration, that is, all the established items. While the Tribunal referred to infringements relating to the paintball games permit in the body of the decision, it did not give "proper, genuine and realistic" consideration to those items or to the other established items when making its decision. No part of the Tribunal's reasoning process reveals any consideration of the effect of all the established items on the public interest. [102] The Tribunal's decision on the paintball games permit should be set aside on that basis.

Submissions of the plaintiff

As previously noted at [4] above, s 18(1) of the Act allows an appeal to this Court by leave, on a question of law. When asked in the course of the hearing before this Court to articulate the question(s) of law upon which the plaintiff relied, senior counsel did so in the following terms (at T3.7-11): "Firstly, did the Appeal Panel err in law in holding that the Tribunal erred in law in that it did not given 'proper genuine and realistic' consideration to infringements relating to the dealer's and theatrical licenses and permits, and I say that because that seems to us to be the kernel of the decision of the Appeal Panel …"
Senior counsel then said (commencing at T3.30): "If we were to put it another way, it could be formulated did the Appeal Panel err in law in holding that the Tribunal erred in law in that it took into account an irrelevant consideration, namely that comparatively the breaches relating to the personal licenses and permits were fewer and less serious than breaches relating to the theatrical and dealer licenses and permits …. In substance it seems to us to be the same".
Senior counsel for the plaintiff submitted that far from the Tribunal making any error, it was in fact the Appeal Panel who had erred in its interpretation of the Tribunal's determination. In particular, it was submitted that the Appeal Panel's effective characterisation of the Tribunal's decision as being little more than a comparative exercise was incorrect. It was submitted that the Tribunal had clearly understood and applied the relevant law, and that a proper assessment of its reasons made this clear.
Senior counsel further submitted that the plaintiff's various breaches had obviously been considered by the Tribunal, and that the Tribunal had correctly treated them as relevant to, but not determinative of, the issues that were to be determined. It was submitted that having taken such matters into account, the Tribunal had properly decided that they were not decisive, to the point that it was not contrary to the public interest for the plaintiff to hold the licence and permits referred to in 6-(iii) above. It was submitted that when read as a whole, the Tribunal's judgment was to be taken as having been reached after consideration of all of the plaintiff's breaches.
Senior counsel for the plaintiff also took issue with the Appeal Panel's conclusion that the Tribunal had failed to give proper, genuine and realistic consideration to the totality of the plaintiff's breaches, as well as the Appeal Panel's suggestion that there had been an absence of "active intellectual engagement" on the part of the Tribunal in terms of how those breaches were to be taken into account. In this regard, it was submitted that the Appeal Panel had itself erred in law in misunderstanding and misinterpreting the Tribunal's decision, and that the Tribunal had given adequate consideration to the totality of the plaintiff's breaches when making its determination. Whilst accepting that a decision maker was obliged to do more than simply make a passing note of, or a passing reference to, a relevant consideration, and was required to give any such consideration proper attention, it was submitted that the Tribunal had discharged those obligations in the present case, and that the Appeal Panel had erred in law in reaching a contrary conclusion.
It was further submitted on behalf of the plaintiff that the Appeal Panel erred by interpreting the phrase "proper genuine and realistic consideration" in a manner which was both impermissibly wide, and contrary to authority.

Submissions of the first defendant

Counsel for the first defendant made lengthy submissions in relation to the construction of the FA. In doing so, he submitted that the licensing regime prescribed by the FA is concerned with the protection of the public, and the making of decisions consistent with the need to reduce, to a minimum, any risk to the public arising from the possession or use of firearms. It was submitted that in that sense, the public interest encompasses considerations which require preference to be given to the broader interests of the community, over the interests of private individuals.
Counsel for the plaintiff accepted that the Tribunal: 1. had acknowledged the decision in Hijazi; 2. was thus alive to the proposition that it should not compartmentalise or quarantine the plaintiff's conduct or contraventions as being relevant only to a particular licence or permit; and 3. had accepted that the decision in Hijazi did not suggest that contraventions should be treated as having equal weight in respect of all licences.
However, it was submitted that it did not follow that proper consideration had been given by the Tribunal to the implications of such findings in determining whether or not it was in the public interest for the plaintiff to hold the relevant licence and permits.
Counsel for the first defendant submitted that properly understood, the crux of the conclusion reached by the Appeal Panel was that despite its acknowledgment of the decision in Hijazi, the reasons of the Tribunal made it clear that it had failed to consider the totality of the plaintiff's previous conduct in reaching its determination. It was submitted that in these circumstances, no error on the part of the Appeal Panel was established.
To the extent that the plaintiff relied, before this Court, on submissions which had been made to the Tribunal, counsel for the first defendant submitted that it did not follow that the Tribunal had engaged in some process of reasoning which was not otherwise evident from its reasons. This, it was submitted, was particularly so in circumstances where it was clear on the face of the Tribunal's reasons that it had failed to give proper, genuine and realistic consideration to totality of the plaintiff's conduct when making the determinations that it did.

Consideration

As set out above, the Tribunal made reference to the decision in Hijazi, which was also referred to extensively by both parties in their respective submissions before me. In Hijazi, an Appeal Panel concluded that a determination by a Tribunal at first instance to "quarantine" a failure on the part of a license holder to comply with statutory requirements in relation to a particular licence from consideration in relation to other licences, constituted a failure to take into account a relevant consideration. Commencing at [46] the Appeal Panel in Hijazi observed that s. 24(2)(b)(ii) of the FA provided that a licence may be revoked if the licensee contravenes any provision of the Act or the Regulations, whether or not the licensee has been convicted of an offence for the contravention. The Appeal Panel in Hijazi then went on to say (commencing at [47]): [47] 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 in the present case was clearly aware of the decision in Hijazi. So much is clear from the references to that decision in the Tribunal's reasons. As a consequence, it must be accepted that the Tribunal was cognisant of the need to take into account all breaches, and not just those which were germane to a particular licence or permit. However, it does not follow from that factor that all or any of grounds 1, 2 and 3 are made out.
The two essential propositions advanced on behalf of the plaintiff in support of grounds 1 to 3 were that the Appeal Panel erred in: 1. finding that the Tribunal erred in law by failing to give proper, genuine and realistic consideration to the plaintiff's prior infringements; and 2. interpreting the phrase "proper genuine and realistic" in a manner which was impermissibly wide and contrary to authority.
As to the first proposition, the Tribunal (at [207] of its reasons) correctly stated the effect of the decision in Hijazi, before concluding that the plaintiff's breaches in respect of his dealer and theatrical licences and permits were "not necessarily decisive of the public interest issue in relation to his personal licences". However, without anything more, absent any further exposition of reasoning, and apparently without any further consideration of the plaintiff's breaches, the Tribunal proceeded to find that it was not contrary to the public interest for the plaintiff to hold the licence and permits in question.
It is one thing to determine that breaches of the kind committed by the plaintiff are not decisive, or are not determinative of a particular outcome. However that does not mean that such breaches are irrelevant to that outcome. Having determined that they were not decisive, the Tribunal was required to consider what effect they had on the question of whether it was contrary to the public interest that the plaintiff be issued with a particular licence, or be permitted to continue to hold particular permits. Expressed in the way that it was, the Tribunal's conclusion that it was not contrary to the public interest for the plaintiff to continue to hold the permits was something of a non-sequitur, following as it did immediately upon a statement of the proposition that his breaches were not determinative of the outcome, and in the absence of any intervening consideration of those breaches. A conclusion that it was not contrary to the public interest for the plaintiff to hold a particular licence or permit does not, without more, automatically follow from a conclusion that his previous breaches were not decisive of that question.
These matters support the conclusion reached by the Appeal Panel that no proper, genuine and relevant consideration was given by the Tribunal to relevant factors. The Tribunal's reasoning was, in that sense, "abrupt" in the way in which in the Appeal Panel determined. Nothing in the Tribunal's reasons gives the slightest indication that in reaching the conclusion that it did, any real consideration at all was given to the effect of the plaintiff's numerous breaches.
As to the second proposition, in Belmorgan Property Development Pty Limited v GPT RE Pty Limited (2007) 153 LGERA 450; [2007] NSWCA 171 Tobias JA said (at [28]): [28] The relevant function of the Council in the present case was contained in s 80(1) of the EPA Act which empowered a consent authority to determine a development application either by granting consent unconditionally or subject to conditions or by refusing consent to the application. In making that determination it was mandatory for the consent authority to take into consideration the matters prescribed by s 79C(1) insofar as they were relevant. As the primary judge observed (at [44]), it was well established that the consent authority must give "proper, genuine and realistic" consideration to those matters: Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401 at 266-267 [37] where McClellan CJ summarised the principles articulated by this Court in Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88.
In the same case, Basten JA made the following observations about the phrase "proper, genuine, and realistic consideration" (commencing at [76]): [76] I do not think that this reasoning is inconsistent with the approach of Tobias JA, nor, for that matter, with the reasoning of Biscoe J in the Land and Environment Court. However, I would not adopt the passage in the judgment below, quoted above at [28] in which it is said that the consent authority must give "proper, genuine and realistic" consideration to the matters prescribed by s 79C: GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303 at [44]. Biscoe J, in my view correctly, noted the need to apply those epithets cautiously lest they "encourage a slide into impermissible merit review", referring to Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, (2006) 143 LGERA 277 where that risk was noted at [74]-[79]. That caution was reiterated in Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [49]-[51]. [77] By way of explication, it may be noted that use of the word "proper" may be understood to invoke the requirement that a power can only be used for the purpose or purposes for which it is conferred and not for some extraneous purpose: see, eg, Sydney Municipal Council v Campbell [1925] AC 338 and The Queen v Toohey; Ex parte Northern Land Council (198081) 151 CLR 170 at 232-233 (Aickin J). Similarly, the word "genuine" may be understood to reflect the well-established principle that the decision-maker must undertake his or her function in good faith, a requirement bound up in the concept of "improper purpose", as explained by Aickin J in Ex parte Northern Land Council. Nevertheless, both those obligations are properly related to the exercise of power, rather than some discrete aspect of the exercise, namely taking into account a particular mandatory consideration. The third limb of the trinity, "realistic" finds no ready referent in the language of judicial review. [78] That is not to say that to give grossly inadequate weight to a matter of some importance may not provide a basis for review; however, to qualify as a ground of judicial review, such conduct must satisfy the test of manifest unreasonableness as applied to the exercise of the power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-86) 162 CLR 24 at 41 (Mason J). It is not helpfully reflected in a supposed obligation to give "realistic" consideration to a particular matter.
In Ku-ring-gai Council v West (2017) 220 LGERA 386; [2017] NSWCA 54 Sackville AJA made reference (at [278]) to the "controversy surrounding the meaning and utility of the expression 'proper, genuine and realistic consideration".
Whatever the extent of any such controversy might be, it does not impact on the present case. This is because it is clear from Appeal Panel's decision, as explained at [26] and [101] of its reasons, that there was no consideration by the Tribunal of particular matters at all. That finding was well open, for the reasons that I have already expressed. On any view of it, a failure to consider a relevant matter obviously falls short of consideration which might be described as proper, genuine and realistic.
It follows that grounds 1 to 3 inclusive are not made out.

Ground 4 - The Appeal Panel erred in exercising its own discretion and not remitting the matters back to the Tribunal

The reasons of the Appeal Panel

Commencing at [109] the Appeal Panel said the following: [109] We have allowed the appeal and set aside the Commissioner's decisions which were favourable to Mr Lee. The Commissioner now submits that, rather than directing the Tribunal to reconsider the matter, we should substitute our own decision for that of the Tribunal: NCAT Act, s 81(1)(d) and s 81(2). The basis for this submission was that we will have gained familiarity with the case in the course of hearing and determining the appeal. The Commissioner emphasised that he did not seek to adduce any new evidence or rely on any new material. [110] The Appeal Panel has power, in determining an appeal, to make "such orders as it considers appropriate in light of its decision" including, as we have done, to set aside the decisions under appeal: NCAT Act, s 81(1). Having set aside a decision, the Appeal Panel may make another decision in substitution for that decision. [111] In House v The King, the High Court held that where, for example, a decision maker does not take into account some material consideration, the appellate body, "may exercise its own discretion in substitution for his if it has the materials for doing so": House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. [112] The Commissioner's submission was that we should re-exercise the discretion after making findings of fact which differ significantly from those made by the Tribunal below. For example, the Commissioner submitted that "the public simply cannot have any confidence that the Respondent will not continue to breach the 'strict' regime of the Firearms Act". ([103] of 10 March 2016 submissions). That assertion is directly inconsistent with the finding of the Tribunal that "Mr Lee is unlikely to seek to push the boundaries of permitted conduct or to neglect the obligation to seek licence or permit renewal and to remain up to date with legislative requirements". [113] None of our conclusions has impugned any of the Tribunal's factual findings. Indeed, on the question of law appeal, the Commissioner did not challenge any of the findings made by the Tribunal on the 29 items at [114] - [196]. There is no basis for re-visiting those findings. Given the detailed findings made by the Tribunal, we have sufficient material to re-exercise the discretions. We will do so by giving "proper, genuine and realistic consideration" to all the established items.

Submissions of the plaintiff

Senior counsel for the plaintiff submitted that this was not a case where the Appeal Panel was in as good as a position as the Tribunal to determine what inferences could or should be drawn from such facts as were established by the evidence. It was submitted that although established facts were available to the Appeal Panel, the "balancing act" of deciding what was in the public interest should not be based upon the drawing of inferences, but should be carried out with the advantage of seeing and assessing the relevant witnesses. It was submitted that in these circumstances, the Appeal Panel fell into error in "effectively deciding" that the Tribunal had enjoyed no significant advantage in that respect.

Submissions of the first defendant

Counsel for the defendant submitted that the plaintiff's position in support of this ground misapprehended the reasons why the Appeal Panel had decided not to remit the matter to the Tribunal. It was submitted that central to the Appeal Panel's decision in this respect was the fact that none of its conclusions had impugned the factual findings made at first instance, such that its re-exercise of the relevant discretion did not require determining facts or drawing inferences.
It was further submitted that any benefit that the Tribunal may have had in seeing and assessing the witnesses was overstated, in circumstances where (inter alia) only two witnesses had given evidence before it.
Counsel for the first defendant also pointed to the objects of the Act which include (at s 3(d)) enabling the resolution of the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. It was submitted that in these circumstances it could not be said that the exercise of discretion by the Appeal Panel had miscarried, or had involved any error of law.

Consideration

Having regard to s 81(1) of the Act, the Appeal Panel clearly had the power to substitute its own determination for that of the Tribunal. In exercising that power in the present case, it is evident that the Appeal Panel: 1. took into account the fact that none of the factual findings of the Tribunal had been impugned; 2. concluded that it had sufficient evidence before it to enable it to re-exercise the relevant discretion; and 3. indicated that in re-exercising the discretion, it would do so by giving proper, genuine and realistic consideration to all of the relevant factors.
In circumstances where the factual findings of the Tribunal were not disturbed by the Appeal Panel, the Appeal Panel was clearly as well placed as the Tribunal to reach a conclusion. Further, to have remitted the matter in those circumstances would have been at odds with the objects set out in s 3(d) of the Act.
It follows that this ground is not made out.

Ground 5 - The decision of the Appeal Panel was manifestly unreasonable

The reasons of the Appeal Panel

Commencing at [114] the Appeal Panel said the following: [114] The Tribunal concluded at [206] that Mr Lee's "record of repeated failures to renew licences and permits, the clear and substantial contravention involved in the operation of an unapproved firing range and his other varied infringements lead to the conclusion that general deterrence requires the application of a sanction in this case". The Tribunal reasoned that public confidence in the licencing scheme will be maintained if "those whose conduct does not meet the required standards" are not permitted to hold a firearms licence or permit. [115] Even if most of the breaches relate to the dealer and theatrical licences and permits, and those relating to the personal licence and permit are less serious, Mr Lee has demonstrated by his conduct since at least 2000, that he is unable or unwilling to comply with the "strict controls on the possession and use of firearms": Firearms Act, s 3(1)(b). [116] Mr Lee operated an unapproved shooting range between April 2012 and July 2013. The Tribunal described that item as a "clear and substantial contravention". In April 2012, during the birthday party episode, he used a .45 rifle and a number of .45 hand guns to fire at targets and a birthday cake containing explosives. He then handed a revolver to his son Jarod who fired five rounds at targets. The Tribunal did not accept Mr Lee's explanation that he thought he was lawfully able to test firearms on his testing facility under his dealer's licence. The Tribunal did accept Mr Lee's evidence that he believed at the time that his son's pistol permit was current. Ultimately, Mr Lee admitted the contraventions. [117] Another incident which the Tribunal found counted against Mr Lee was the sale as a firearms dealer of a prohibited firearm to himself when he had no permit or licence for it. The Tribunal found that Mr Lee completed that transfer after being told that it was impermissible and then posted a YouTube video of himself firing it, under the title, "M14 - Now a Prohibited Weapon". Despite submitting to the Tribunal that he was purporting to conduct "testing" for the purposes of selling M14, he described his actions in the video as a "review". [142] - [143] and [172] [118] Mr Lee was in possession of firearms for paintball without a paintball games permit on two occasions - from March to June 2008 and again from March to April 2013. The Tribunal held that these incidents demonstrated a "casualness of attitude towards compliance with obligations as a permit holder" [122] and a "cavalier attitude to the regulatory scheme". [124]. [119] Contrary to Mr Lee's submission a "compromise outcome" is not appropriate. Nor is it relevant that it is not unusual for the Tribunal to uphold some decisions and set aside others in a complex and lengthy matter. His infringements relate to every licence and permit he has held. They have taken place over a period of at least 13 years, despite at least one warning. They were not isolated or insignificant events. Even if there were no actual instances of dangerous conduct, Mr Lee has breached the legislation and exhibited a lax attitude over many years. In order for public confidence in the regulatory scheme to be maintained, the Commissioner's decisions should be affirmed.

Submissions of the plaintiff

It was submitted on behalf of the plaintiff that the manifest unreasonableness of the decision of the Appeal Panel stemmed from the fact that it had wrongly considered that it was in as good a position as the Tribunal to exercise the relevant discretion. It was submitted that the reasons of the Appeal Panel at [114] to [119] amounted to nothing more than a recitation of the "misdeeds of the plaintiff", which had then led to a conclusion that the decisions of the first defendant should be affirmed in order for public confidence to be maintained in the regulatory scheme.
It was further submitted that in reality, the reasons of the Appeal Panel at [114] - [119] amounted to nothing more than a blanket of denunciation of the plaintiff, in the absence of the Appeal Panel properly carrying out the necessary balancing act, such that the conclusion it reached was one to which no reasonable authority could have come.

Submissions of the first defendant

To the extent that the plaintiff attacked the reasons of the Appeal Panel at [114] to [119], counsel for the first defendant submitted (inter alia) that the discretion to refuse a licence was a broad one and was to be exercised having regard to the public interest. It was submitted that "public interest" was a broad concept, and allowed for issues going beyond the character of an applicant to be taken into account. Counsel for the first defendant also submitted that the FA and the FR provided a regime for the licensing of firearms, and did not operate in way which fettered a pre-existing right to possess a firearm.
Counsel for the first defendant further submitted that the plaintiff had continuously failed, over a lengthy period of time, to comply with (inter alia) the conditions of the various licences and permits which had been issued to him. It was submitted that taken as whole, those ongoing failures were not insignificant, and demonstrated the display of a cavalier attitude by the plaintiff towards his responsibilities, of a kind that would damage public confidence in the regulatory system if he were allowed to retain the license and permits in question.

Consideration

A decision may be set aside on the grounds of unreasonableness if it is established that no reasonable person or authority could have come to it. In Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 Lord Greene MR stated the principles in this way (at 230): ... once it is conceded, as it must be conceded in this case, that the particular subject-matter dealt with by this condition was one which it was competent for the authority to consider, there, in my opinion, is an end of the case. Once that is granted (counsel) is bound to say that the decision of the authority is wrong because it is unreasonable, and in saying that he is really saying that that the ultimate arbiter of what is and is not reasonable is the court and not the local authority. It is just there, it seems to me, that the argument breaks down. It is clear that the local authority are entrusted by Parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted for deal with. The subject-matter with which the condition deals is one relevant for its consideration. They have considered it and come to a decision upon it. It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think (counsel) in the end, agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be provide to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sought honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set up in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere.
Subsequent authorities have further considered the meaning of the term "unreasonable" in the sense referred to by Lord Greene MR. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 Lord Diplock said (at 1064): To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.
In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 Lord Diplock expanded upon the issue, describing (at 821) decisions falling into the general category of unreasonable as decisions that "looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them". His Lordship's formulation was adopted by Wilcox J in Conyngham & Ors v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 423 at 433-4.
The matter was also considered by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 13. The following propositions emerge from the judgment of the plurality (Hayne, Kiefel and Bell JJ): 1. the legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused ([67]); 2. the decision in Wednesbury (supra) is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational (if not bizarre) decision or in other words, one that is so unreasonable that no reasonable person could have arrived at it. Lord Greene MR should not be taken to have limited the concept of unreasonableness in this way. His Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may, in some cases, be objectively drawn even where a particular error in reasoning cannot be identified ([68]). 3. the drawing of an inference of unreasonableness in the absence of specific error is recognised by the principles governing the review of a judicial discretion ([68]); 4. specific errors in decision-making may also be seen as being encompassed by unreasonableness ([72]); 5. a court may infer that in some way there has been a failure to properly exercise the relevant discretion if, upon the facts, the result is unreasonable or plainly unjust ([76]); 6. the reasoning in (v) above may apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts, and from the matters falling for consideration in the exercise of the statutory power ([76]); 7. even where some reasons have been provided, it may nevertheless not be possible for a court to comprehend how the decision was made. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification ([76]).
In Li, emphasis was also placed on the fact that a statutory discretion must be exercised in accordance with principles of reason: per French CJ at [24] and [29]; per Hayne J at [64], per Hayne, Kiefel and Bell JJ at [64]; per Gageler J at [88] - [92].
To some extent, ground 5 stems generally from ground 4, and specifically from what was said to have been the Appeal Panel's erroneous conclusion that it was in as good a position as the Tribunal to exercise the relevant discretion. For the reasons previously stated, I do not accept that such a conclusion was erroneous. In those circumstances, ground 4 having failed, ground 5 must meet with the same fate. However, ground 5 fails for another, and more fundamental, reason.
It is self-evident that, quite properly, issues of public safety were of paramount importance in the Appeal Panel's determination. In this regard, the Appeal Panel found (inter alia) that: 1. the plaintiff had demonstrated since at least 2000 that he was either unable or unwilling to comply with the strict controls on the possession and use of firearms: at [115]; 2. the plaintiff's operation of an unapproved shooting range between April 2012 and July 2013 was a clear and substantial contravention of the legislation: at [116]; 3. in April 2012 at a birthday party the plaintiff had used a .45 calibre rifle, and a number of .45 calibre handguns, to fire at targets, as well as at a birthday cake containing explosives, before handing a revolver to his son who fired five rounds of ammunition at targets: at [116]; 4. as a firearms dealer, the plaintiff had sold a prohibited firearm to himself when he held no permit or licence for it, and completed that transaction after being told that it was impermissible before posting an inappropriate video of himself on YouTube: at [117]; 5. the plaintiff had been in possession of firearms for paintball without the necessary permit from March to June 2008, and again from March to April 2013: at [118]; 6. the matters in (v) above demonstrated a "casualness of attitude towards compliance with obligations as a permit holder" and a "cavalier attitude to the regulatory scheme": at [118].
Having regard to these (and other) matters, the Tribunal found (at [119]) that: 1. a "compromised outcome" was not appropriate; 2. the plaintiff's infringements related to every licence and permit he had ever held; 3. those infringements had occurred over a period of at least 13 years, and were thus neither isolated nor insignificant; 4. notwithstanding the fact that there was no actual instances of dangerous conduct, the plaintiff had breached the legislation, and had exhibited a lax attitude, over many years; 5. as a consequence, and in order for public confidence in the regulatory scheme to be maintained, the decisions of the first defendant in relation to the three licences should be affirmed.
As was emphasised by the plurality in Li, the legal standard of reasonableness must be the standard indicated by the true construction of the statute. In the present case, the statutory scheme created by the FA and the FR is directed to issues of public safety. So much is clear from the provisions of s. 3(1)(a), which provides that one of the underlying principles of the FA is to confirm that firearm possession and use is a privilege, and one which is conditional upon the overriding need to ensure public safety. The nature, extent and frequency of the plaintiff's breaches of the scheme for which the FA provides were fundamentally at odds with ensuring public safety. In those circumstances, it could hardly be said that the Tribunal's decision was unreasonable in the sense described in the authorities.
It follows that this ground is not made out.

The first defendant's notice of contention

In circumstances where none of the grounds relied upon by the plaintiff have been established, it is not necessary for me to consider the notice of contention filed on behalf of the first defendant.

ORDERS

I make the following orders: 1. The time for the commencement of the proceedings is extended until 2 December 2016. 2. Leave to appeal is refused. 3. The proceedings are dismissed. 4. Absent agreement, the parties are to file with my Associate written submissions as to costs within seven days, such submissions not to exceed two pages in length in each case.

Amendments 20 June 2018 - Correction to parties on coversheet 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: 20 June 2018

Firearms Regulation 2006(NSW)

Firearms Regulations 2006(NSW)

(2007) 153 LGERA 450

(2017) 220 LGERA 386

(2004) 135 LGERA 257

(2000) 111 LGERA 181

(2006) 143 LGERA 277

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Judgment (25 paragraphs)

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