Madziala v Commissioner of Police

NCAT Appeal Panel|2022-03-25

Background

The appellant applied for a Category AB firearms licence under the Firearms Act 1996 (NSW) ("Firearms Act"). That application was refused by the Commissioner of Police, New South Wales Police Force ("Commissioner"). The appellant then lodged an internal review which affirmed the decision to refuse his application for a firearms licence on the basis that it was not in the public interest for him to hold a firearms licence: s 11(7) of the Firearms Act.
When the appellant applied to the Tribunal for a review, the Tribunal affirmed the Commissioner's decision to refuse the firearms licence. The appellant now appeals from the Tribunal's decision.
For the reasons set out below we have dismissed the appeal.

The Decision under Appeal

In the decision under appeal ("the Decision"), the Tribunal set out the relevant legislative framework at [8]-[18].
The Tribunal then proceeded to address the evidence and the parties' respective submissions concerning that evidence, in particular, the appellant's criminal history, traffic infringements, character references and the issue of personal and public interest.
Relevantly, Senior Member Dinnen: 1. noted that in the internal review, no emphasis was placed on the appellant's potential mental health concerns (at [7]); 2. noted that in evidence and under cross-examination, the appellant minimised or denied conduct subject to Apprehended Violence Orders (AVOs) issued in 1994, 1995 and 1999, submitting that he had not assaulted the women involved, and that there were ulterior motives for them seeking the orders (at [22]); 3. gave limited or no weight to character references provided by the appellant as they did not mention the criminal charges or his traffic history, and only two referred to his firearms licence application. The authorities for this approach to the references were also noted at [27]; 4. acknowledged that while the appellant's criminal history was decades behind him, expressed concern that the appellant did not realise the seriousness and illegality of his dangerous and aggressive conduct, nor its impact on others. This concern was based on his deflections in evidence of personal responsibility, his denial of documented domestic abuse and attributing his criminal history entirely to his membership of a club, explaining the attention of police after 1999 and various COPS entries of aggression as "the police having it in for me" (at [34]); 5. noted that in respect of the appellant's history of traffic infringements, the numerous occasions that the appellant was found to be driving unlicensed (his licence having been removed for speeding and dangerous driving violations) was particularly concerning and that the appellant's lack of recent driving offences did not positively demonstrate that he understood the importance of compliance with regulatory schemes or issues of public safety (at [35]); 6. found that the appellant fell short of the community expectation that those afforded the privilege of being issued with a firearms licence should have maintained a lawful lifestyle and be able to demonstrate that they will be able to comply with legislative requirements (at [36]).

Grounds of Appeal

In the Notice of Appeal dated 30 November 2021, the grounds of appeal stated as follows: "I have not received the documents to this date as notification of the decision 16 September 2021 From Ncat in the mail. Inflexible application of policy. Police follow a policy to keep firearms away from omgs and anyone with any kind of alleged link, even previously severed, or false. A Decision maker he or she must not act as if he or she is bound by that policy in the same way as legislation. That is, a 'refusal to entertain the possibility that a particular case might fall outside the policy, or require its re-consideration' is an error of law. The decision is not reasonably open on the primary fats. Apprehended Bias. The Firearms Registry original refuse; (the reviewable decision) The reviewable decision maker does not have jurisdiction to require the applicant, Mr E Madziala, to undertake a mental health assessment. The time elapsed in the making of the internal review decision is unreasonable. New material previously not available to the Applicant/Appellant. Procedural Fairness. Natural Justice."
We note that part of the appellant's appeal related to the sound recording of a confidential hearing (which was subject to confidentiality orders under s 49 and s 64 of the Civil and Administrative Appeals Tribunal Act 2013 (NSW) ("CAT Act") from which the appellant was excluded. This sound recording was inadvertently provided to him following the hearing.
At the hearing of this appeal, the appellant informed us that he had returned the recording to the Tribunal and had not kept a copy. He also accepted that it was not appropriate for him to refer to anything he heard on that recording and that the confidentiality regime was to continue.
The appellant submitted at the hearing that if there was no error of law, that we consider his appeal on the merits.
We also note that the appellant's Notice of Appeal was dated 20 November 2021, two days outside the period within which an appeal should have been lodged. The date it was received by the Tribunal was recorded as 30 November 2021. The appellant sought an extension of time to file the Notice of Appeal.

Materials

In deciding the appeal, we have had regard to the following: 1. Notice of Appeal dated 20 November 2021; 2. Reply to Appeal dated 17 December 2021; 3. Written submissions for the appellant dated 23 November 2021 and a further reply submission received on 22 February 2022; 4. Written submissions for the Commissioner dated 11 February 2022; 5. Oral submissions made on behalf of the parties at the hearing; 6. A bundle of documents provided by the appellant, including the material provided to the Tribunal below and an audio of the hearing on 17 June 2021. 7. A bundle of material from the Commissioner, that was before the Tribunal below including statements of the applicant, character references and the s 58 documents filed by the Commissioner; and 8. The Tribunal's reasons for decision of 16 September 2021.

Scope and nature of appeals

An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: CAT Act, s 80(2).
On an appeal on a question of law, the exercise of a statutory discretion, including that under s 11(7) of the Firearms Act, can only be overturned in limited circumstances: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505-506.
In Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 the Court of Appeal summarised the House v The King circumstances at [14] (Tobias AJA) and held that an 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."

An appeal commenced out of time

The appeal was not commenced within time.
The appellant says he did not receive a copy of the Decision and has not received reasons. Yet his Notice of Appeal which is dated 20 November 2021, attached the Decision. The Appeal was not received by the Tribunal until 30 November 2021, beyond the 28 days allowed for filing the notice under Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014. We may, though extend time for filing the Notice of Appeal: NCAT Act, s 41.
The discretionary power to grant an extension of time under s 41 of CAT Act is unfettered but it must be exercised judicially and having regard, among other things, to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings".
In Kelly v Szatow [2020] NSWSC 407 at [28]-[32], the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff's case and consideration of whether the defendants would be prejudiced by a granting of the application: see also Jackson v Land and Housing Corporation (NSW) [2014] NSWCATAP 22 at [22].
The appellant bears the onus of demonstrating that strict compliance with the timeframe would work an injustice: see Gallo v Dawson (1990) HCA 30; 93 ALR 479.

Leave to appeal

The Appeal Panel has a discretion whether to grant leave under s 80(2) of the CAT Act.
The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.

Extension of time to appeal

Having regard to the overriding objectives of the CAT Act; that the appellant contends he did not receive the reasons; that the Notice of Appeal was filed only two weeks outside the time period for lodging appeals; and that the Commissioner does not object to the Tribunal extending the time for appeal, we grant an extension of time to appeal.

The Decision was an error of law in that it did not "entertain the possibility that a particular case might fall outside the policy [to keep firearms away from omgs and anyone with any kind of alleged link, even previously severed, or false]"

This ground is not an error of law, nor does it give rise to any question of law.
While the prior membership of the appellant in an Outlaw Motorcyle Gang (OMG) may have been a factor considered by the Tribunal in its assessment, it was not determinative. Rather, the appellant's criminal record, driving history and disregard for the regulatory regimes were fundamental to the conclusion that it was not in the public interest for the appellant to have a firearm's license.
In any event, there is no evidence that such policy exists. We note that an association with an OMG or others with criminal history has been held by the Tribunal to demonstrate a risk to public safety and may not be in the public interest: Addison v Commissioner of Police, NSW Police Force [2019] NSWCATAD 99 at [19]-[21]. On other occasions, the Tribunal has granted firearms licences where a person has been a member, or had been connected to members, in OMGs: see Hailes v Commissioner of Police [2022] NSWCATAD 37 and Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156.
We reject this ground of appeal.

The Decision "is not reasonably open on the primary facts"

Based on the evidence before the Tribunal including the appellant's extensive criminal record and driving history, as well as his apparent disregard for the regulatory regimes designed to ensure public safety, we do not see any merit in the complaint now raised in this ground of appeal.
The Tribunal's conclusions were reasonably open on the evidence and we would have reached the same view.
This ground of appeal fails.

Apprehended bias

This ground of appeal is based on a question by the Tribunal to the Commissioner as to whether there were any submissions on the issue of public confidence in the regulatory regime. The appellant contends that, to an "informed open minded observer there would be the appearance of bias". We disagree.
In EMF v Cessnock City Council [2021] NSWCATAP 234, the Appeal Panel considered the issue of apprehended bias, citing Wootten v Godfrey [2019] NSWCATAP 255 at [26] and following, where the relevant principles were summarised. The Tribunal paraphrased them as follows at [117]: "(1) in the contexts of courts, the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). (2) in Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135, in the context of a decision by a local council committee, Kiefel, Bell, Keane and Nettle JJ at [20], stated the test to be 'whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made'. Their Honours stated that this was largely a factual question "albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made". (3) the test of apprehended bias is objective. It involves possibilities (real and not remote) not probabilities. The question is not whether the decision-maker would not actually bring an impartial mind to the matter. The question is whether the fair-minded lay observer might reasonably apprehend that to be the case. While the observer assessing possible bias is not a lawyer and is not assumed to have a detailed knowledge of the law, nonetheless they are taken to be aware of the nature of the decision, the context in which it was made and to have knowledge of the circumstances leading to the decision: Isbester at [23]. (4) the question of whether the fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the matter is directed not to the correctness of the outcome, but to the apparent fairness of the process: VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209]; SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [3]. (5) Where the claim of apprehended bias relies on multiple instances of conduct, it is necessary to consider those instances both individually and cumulatively to determine whether they were capable of giving rise to a reasonable apprehension of bias: Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 at [176]; Concrete Pty Limited v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [114]."
The Senior Member's request for submissions on the issue of public interest does not demonstrate apprehended bias. To the contrary, one of the obligations of parties under s 36 of the CAT Act is to provide assistance to the Tribunal. The Tribunal's request demonstrates that care was taken to ensure there was a fair hearing which addressed all of the matters relevant to a review of a decision under the Firearms Act - this necessarily involved the question of public interest considerations.
This ground of appeal fails.

No jurisdiction to require the appellant to undertake a mental health assessment

This ground of appeal is misconceived. The appellant appears to challenge considerations in the Commissioner's original decision to refuse the application. The original decision was the subject of internal review and does not form part of the appeal before us. The Commissioner did not rely on the issue of the appellant's mental health in the proceedings before the Tribunal.
We reject this ground of appeal.
In any event, we note that the Tribunal did not make any finding as to the appellant's mental health.

The time elapsed in the making of the internal review decision is unreasonable

This ground of appeal is also misconceived and raises no error of law.
There was no issue raised by the appellant in its original application for a review concerning the time that had elapsed in the making of the internal review. Consequently, the Tribunal below did not make any decision concerning this issue.
We reject this ground of appeal.

New material previously not available to the Applicant / Appellant

We note the appellant's concession during the course of the hearing (referred to at [9]-[10] above) and consequently, we do not understand this ground of appeal to be pressed by the appellant.
In any event, the confidential material mistakenly disclosed to the appellant after the hearing was not given any weight in the decision.
The appellant did not make any further submissions about procedural fairness, apprehended bias or natural justice arising from the confidential material (or any other basis) and we do not consider these grounds of appeal have been established.

Leave to appeal

As we have found that the Tribunal did not err on any question of law, to succeed on this appeal, the appellant requires leave to appeal.
We refuse leave for the following reasons: 1. The appellant has not demonstrated "something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact (see BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19]; Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; and Collins v Urban [2014] NSWCATAP 17 at [84(1)]). 2. There is no injustice which is reasonably clear, in the sense of going beyond merely what is arguable, and no error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand. 3. There is no factual error that was unreasonably arrived at and clearly mistaken. 4. The Tribunal did not go about the fact finding process in an unorthodox manner or in such a way that it was likely to produce an unfair result.

Orders

For the above reasons, our orders are as follows: 1. Time to lodge the Notice of Appeal is extended to 30 November 2021. 2. Leave to appeal is refused. 3. The appeal is dismissed.

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: 03 May 2022

Civil and Administrative Appeals Tribunal Act 2013(NSW)

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