Meacham v Commissioner of Police

Background

1. The appellant has held a firearms licence since 1995.
2. Her husband conducted an indoor firing range in Condell Park New South Wales (the Range).
3. The appellant assisted in the management of the Range in some respects. For this purpose, in addition to her firearms licence, she held a dealers director authority, a firearms training authority, and a high calibre pistol permit.
4. When making the original decision to refuse the appellant's application, the Commissioner took into account two previous incidents which had occurred at the Range.

The 2013 incident

1. In 2013, when the appellant was on front desk duty, an unlicensed person committed suicide at the Range by using a firearm while he was being educated in the use of firearms. The appellant was charged with "operat[ing] approved shooting range contraven[ing] conditions" under cl 91(1)(b) of the Firearms Regulation 2017 (NSW), and pleaded guilty (her evidence was that she did so on the basis of "vicarious liability"). Under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court did not proceed to a conviction.
2. As a result of this incident the Range introduced a system of tethering firearms while in use, to prevent a recurrence of such an incident.
3. The appellant's ABH firearms licence was revoked on public interest grounds as a result of this incident, but was subsequently reinstated in October 2014 following an internal review of the revocation decision.

The 2015 incident

1. In 2015, the appellant gave evidence that, while she and her husband were away on holiday, a number of firearms were taken or went missing from the Range where they were stored. Her evidence was that she conducted an audit before the holiday, and no firearms were missing. The respondent questions whether this audit occurred. Shortly after their holiday, the appellant says she and her husband were notified that some firearms were missing, and her husband contacted police. Another "self-audit" revealed that 12 firearms were missing. Following this, the police conducted a full-scale audit and found that 21 firearms were missing. Through the course of the police investigation, a number of those firearms were recovered, and this number decreased to 11. One of the missing firearms was used in a homicide in 2016 and was subsequently recovered by police in 2017.
2. The appellant was not charged over the missing firearms. Her husband was charged with "not prevent[ing] theft/loss of firearms - not prohibited firearms/pistol" under s 39(1)(b) of the Firearms Act 1996 (NSW), pleaded guilty, and received the benefit of s 10 of the Crimes (Sentencing Procedure) Act.
3. In October 2015, very shortly after the firearms were found to be missing, the appellant's firearms licence was suspended. It was then revoked on public interest grounds in March 2017. It is now over four and a half years since the events in 2015.

Grounds of appeal and submissions

1. The appellant has alleged 14 grounds of error of law in her notice of appeal. Originally she claimed there were 22 grounds but 8 are no longer pressed.
2. The appellant also sought leave to appeal on grounds other than questions of law, on the basis that a substantial miscarriage of justice occurred because the Tribunal's "discretion in the application of the public interest test miscarried, due to the cumulative effect" of the errors listed in the grounds of appeal.
3. Both parties were legally represented, and filed written submissions on the appeal supplemented by oral submissions at the appeal hearing.
4. The appellant's case can be summarised as: the Tribunal relied on evidence and findings which either were not established, or were not open to it to find; it misunderstood or gave insufficient weight to evidence; the Tribunal gave inadequate reasons; and considering these matters as a whole it erred in law in exercising the Tribunal's discretion in the application of the public interest test.
5. From the notice of appeal, written and oral submissions, we understand the key errors of law propounded by the appellant to be that: 1. the Tribunal misapplied the public interest test with the effect of "effectively punishing" the appellant, rather than protecting public safety, and that this was an unfair approach and error of law; 2. the Tribunal failed to set out sufficient reasons identifying the appellant's acts or omissions which purportedly led to the loss of the firearms. Relatedly, the Tribunal did not provide reasons why the appellant "bore a significant level of responsibility for the circumstances which led to the loss of [the] firearms" (Decision at [64]). The appellant referred to case law on adequacy of reasons, including Pettitt v Dunkley [1971] NSWLR 376 at 387, which in turn cited Carlson v King (1947) 64 W.N. (NSW) 65 for the principle that it is the "duty of a court at first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal", including "not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision". In order to meet this standard, it was submitted the Tribunal needed to consider three questions: how and when the firearms were stolen or lost; what the appellant's involvement in the theft or loss was; and, in the context of the appellant's prior conduct, how the public's safety would be put at risk by granting the appellant's application. It failed to do so; 3. there was no evidence which allowed the Tribunal to find that the appellant was responsible for the loss or theft of the firearms, that they had been stolen/lost when she was in charge of the Range, that the firearms had been "inappropriately stored", that she knew the whereabouts of the firearms, or that she provided insufficient assistance to police in trying to locate them. In relation to the finding that firearms were "inappropriately stored", it was submitted that this was not reasonably open to the Tribunal, and that no adequate reasons were provided as to how the Tribunal came to this conclusion and "how that then should be shouldered by the Appellant". In relation to the appellant's interactions with police, it was submitted that Senior Constable Jackson's evidence was that she was "co-operative, frank and assisted in any way she could", and that "there was nothing about [her] attitude or behaviour ... that suggested that the Appellant posed a risk to public safety"; 4. the Tribunal made findings which were impermissibly vague. In oral submissions, counsel for the appellant focussed particularly on the Tribunal's references to the "crucial times" at which the appellant was found to be in charge of the Range (Decision at [49]), and her responsibility for the "circumstances which led to the loss" of the firearms (Decision at [64]). It was submitted that the appellant was "left to ponder" what these phrases meant. It was also submitted these findings had no basis in the evidence before the Tribunal, pointing to the "undisputed" evidence of the appellant that it was not known when the firearms were lost, and that she had been absent when it was discovered they were missing; 5. the Tribunal ignored or gave insufficient weight to evidence about considerations highly relevant to the exercise of its discretion. These relevant considerations included that the appellant was not present when it was discovered the firearms were lost, it is unknown when the firearms were lost, the appellant provided assistance to police in trying to locate the firearms, and there have never been any incidents in connection with the appellant's personal firearms licence or firearms; 6. The Tribunal erred in concluding that the appellant had an onus of establishing how many firearms were "eventually found" (Decision at [64]).
6. The respondent defended the Tribunal's decision by refuting the appellant's claims of error, and stating that: 1. the evidence was sufficient, and that the findings of fact were reasonably open to be made on the evidence (and that such findings do not amount to errors of law even if they appear to have been drawn as a result of illogical reasoning); 2. the Tribunal provided adequate reasons to explain how the appellant's conduct led to the loss of firearms, including that she played a significant role in the operation of the business; 3. while the judicial duty to give reasons applies to the Tribunal, there is no need to refer to the relevant evidence in detail, especially where it is apparent that the evidence has been considered; 4. the Tribunal's reasons set out the evidence and the submissions of the parties, the law, the findings, and the consideration of the Tribunal in an appropriate manner; 5. the Tribunal was clear in arriving at a conclusion that the appellant, by virtue of the roles and functions she exercised at the Range, played a part in the circumstances that led to the firearms being stolen or lost; 6. the Tribunal properly identified the considerations relevant to the application of the public interest test, and correctly applied the test to its findings of fact; and 7. there was no suggestion in the Tribunal's decision that the appellant had an onus to establish how many firearms were eventually found.
7. In addition, the respondent made a number of submissions opposing the grant of leave to appeal.

Task of Tribunal and firearms licensing regime

1. It is well established that, in administrative review proceedings, the Tribunal is to reach the correct and preferable decision on the relevant factual material in the light of the law, whether statutory or case based, and it stands in the shoes of the decision maker: s 63, Administrative Decisions Review Act 1997 (NSW). The Tribunal is not bound by the rules of evidence: s 38(2), NCAT Act.
2. The firearms licensing regime contained in the Firearms Act recognises that it is a privilege to possess and use a firearm. The respondent is the person charged with the duty of deciding whether to permit a licence applicant to enjoy that privilege.
3. The Commissioner (and the Tribunal when standing in his or her shoes) has an overriding discretion to refuse a licence application on grounds of public interest: s 11(7), Firearms Act. This involves a discretionary value judgement taking into account undefined factual matters (which nevertheless must be relevant to the exercise of discretion) confined only by subject matter, scope and purpose of the statute: O'Sullivan v Farrar (1989) 168 CLR 210 at 216. See also Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25].
4. The scope and purpose of the Firearms Act can be discerned from the principles and objects set out in s 3 which provides as follows: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.
5. Referring to those principles and objects the overriding consideration of the maintenance of public safety is to be clearly noted. In the words of the Tribunal in Ward v Commissioner of Police [2000] NSWADT 28, the decision maker must be satisfied that there is virtually no risk to the public. In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33] it was said: "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".
6. While the Commissioner can take into account an applicant's prior conduct, the licensing regime is supposed to be a matter of considering the public interest in its various aspects, and not a means of punishing an applicant for past misdeeds or infractions.

Consideration

1. On an appeal on a question of law, the exercise of a statutory discretion is liable to be overturned in limited circumstances: House v King (1936) 55 CLR 499 at 504-505; [1936] HCA 40, cited with approval in Hannaford v Commonwealth Bank of Australia (2014) NSWCA 297 ("Hannaford"). 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".
2. The fact that the Tribunal makes an error does not necessarily mean that the decision should be set aside, unless the error is material in the sense that it "might" or "may" have made a difference to the decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 and 384; House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112 at 121.
3. In this case, we are satisfied that the Tribunal erred in law in the following respects: 1. It provided inadequate reasons for its decision, including by failing to make findings of fact on critical matters contested by the parties, and failing to set out clearly the reasoning process that led the Tribunal to its ultimate conclusion. 2. A material finding of fact was not supported by evidence before the Tribunal. 3. The Tribunal failed to take into account relevant matters that were, collectively, significant to the question of whether issuing a licence to the appellant would be contrary to the public interest.

Principles applicable to adequacy of reasons

1. Section 62(3) of the NCAT Act provides that a written statement of reasons, given on request by a party under s 62(2), 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; and (c) the reasoning processes that lead the Tribunal to the conclusions it made.
2. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 ("Orr"), Bell P said, while the operation of s 62(3) is "arguably" confined to reasons supplied pursuant to a request by a party, "[i]t is not unreasonable… to suppose that s 62(3) supplies important guidance as to what should be set out by the Tribunal in reasons which it chooses to give even without a request for reasons pursuant to s 62(2)": Orr at [55] (Bell P, and see Ward JA at [112]).
3. Proceeding on that basis, Bell P said that, while s 62(3) provides a "useful starting point" as to what is required in a statement of reasons, it "still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed": Orr at [72]. Bell P outlined the following requirements additional to those in s 62(3), drawing particularly on case authorities relating to judicial review (citations omitted) at [73]-[75] and [77]:

• While a detailed exposition of every element of the evidence and arguments is not necessary, a basic explanation of the fundamental reasons which led the Tribunal to its conclusion is required;
• It is not necessary to detail each factor found to be relevant or irrelevant, or to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference to what is found is appropriately clear, and the basis of the decision is made apparent;
• The reasons must indicate to the parties why the decision was made, and allow them to exercise any rights that may be available to them in respect of the decision (including any avenue of appeal);
• The reasons must provide an explanation connecting any findings of fact with the decision reached;
• It is not necessary to decide each factual issue in isolation from the others, and expressing conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.

1. Further, in reviewing the adequacy of a decision maker's reasons, an appellate court (and, by extension, this Appeal Panel):

• should not read passages from the reasons for decision in isolation from others to which they may be related;
• must read the reasons fairly and as a whole;
• should not inspect the reasons with a fine tooth comb attuned to identifying error; and
• should have a degree of tolerance for looseness in the language of the Tribunal, unhappy phrasing of the Tribunal's thoughts or verbal slips: Orr at [77].

1. In line with the authorities referred to in Orr, it has also generally been accepted that, while not every submission or piece of evidence put forward by the parties must be referred to, "central controversies" put up for resolution by the parties must be dealt with, and the competing evidence relevant to those controversies analysed and resolved: Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 ("Mitchell") at [2].

Whether the Tribunal's reasons in this case were inadequate

1. In this case, the Tribunal's reasons were not provided pursuant to a request by either party. However, we accept the suggestion in Orr that s 62(3) of the NCAT Act, though not strictly applicable, provides "important guidance", together with the common law authorities citied in that case, as to what should be included in the Tribunal's reasons, even absent such a request.

Express and implied findings made

1. While the Tribunal set out the submissions of each party at [4]-[36] of the Decision, its own findings at [39]-[68] (though mostly concentrated at [59]-[68]) were far more limited.
2. The extent of the Tribunal's express findings, in respect of the matters which were contested at the hearing, appears to be that: 1. an unlicensed person was "able" to commit suicide at the Range in 2013 (at [42], [65] of Decision); 2. a large number of firearms were lost or stolen from the Range in 2015, one of which was used in a homicide (at [46], [65]); 3. the appellant was a de facto manager of the Range at "crucial times" and "carried and exercised a significant level of responsibility" for managing the business, but "no longer has a de facto manager role" (at [49]-[50], [65]); 4. the appellant therefore "bore a significant level of responsibility" for the "circumstances" which led to the loss or theft of the firearms (at [64]); 5. the appellant has a "great deal of knowledge" about firearms and firearms legislation, and has "undertaken a significant number of training courses", however these were undertaken prior to the 2013 and 2015 incidents (at [59], [62]); 6. in light of the "serious outcomes" at the Range, members of the public "may be concerned about the effectiveness of firearms regulation and public protection" if the appellant were "again to be licenced to be in charge of firearms" (at [66]); and 7. for reasons of public safety and public confidence in the licensing system, issuing a firearms licence to the appellant would be contrary to the public interest (at [68]).
3. A finding can be also be implied from the Tribunal's reasons that: (h) the appellant failed to ensure the safe or appropriate storage of firearms at the Range (at [65]).
4. That the firearms at the Range were "inappropriately stored" is the strong implication at [65] of the Decision, where the Tribunal stated that "one of the risks of inappropriately stored firearms" had "materialised" in the 2015 incident. This inference is reinforced by the Tribunal's remarks at [62] that "[t]he knowledge and ability required to safely store firearms, ensure they are not lost or stolen, and comply with registration requirements are relevant to public safety" (also see Decision at [59]). It can also be inferred from those and surrounding paragraphs of the Decision that the appellant played a significant role in the "inappropriate storage".
5. It is not clear whether the Tribunal made an additional (implied) finding that the appellant failed to cooperate adequately with the police investigation into the missing firearms. The appellant proceeded in its grounds of appeal and submissions on the basis that the Tribunal found that the appellant "had not provided information to the Commissioner about the missing firearms". This "finding" was the subject of extensive submissions on appeal. The Tribunal referred to at [64] of the Decision to the appellant's failure to address, in her evidence before the Tribunal, "how many firearms were eventually found". It also emphasised, at [63], the principle that, "if firearms remain unaccounted for, this is a significant risk to public safety". From these statements, it could perhaps be inferred that the Tribunal accepted that the appellant generally failed to "account for" the missing firearms, in part through a failure to assist police. However, reading the Tribunal's reasons as a whole, we doubt that a finding that the appellant failed to cooperate with police can be implied from the Tribunal's reasons. Rather, given its centrality in both parties' arguments at first instance, we think the Tribunal should have expressly considered this point and made findings of fact in this regard.

Central controversies left undecided

1. Outside of the findings referred to above, the Tribunal did not rule either way on a number of central controversies in the hearing below. These were controversies concerning key disputed facts that might have founded a logical connection between the incidents at the Range and the risk to public safety if the appellant were to again hold an ABH firearms licence. It is unclear which of the parties' submissions, and which disputed pieces of evidence, on these matters were rejected or accepted by the Tribunal as a basis for its conclusion that granting a licence to the appellant would be against the public interest.
2. While, as stated in Orr and Mitchell, a decision maker is not required to advert in its reasons to every piece of evidence, or every argument put forward, or to express its conclusions in any particular sequence, it is necessary for it to deal with those contested matters which are fundamental to the decision before it. In this case, reviewing the Tribunal's reasons as a whole gives rise to uncertainty as to whether any conclusion at all was reached in respect of several material issues. Each of these issues is relevant to an analysis of the appellant's conduct in relation to the 2013 and 2015 incidents, and therefore whether it is against the public interest for her to be granted a licence.
3. First, the respondent submitted that there was insufficient evidence that the appellant carried out an audit before going overseas, and so this process could not be relied on to say that the loss or theft of firearms happened in her absence (Decision at [33]). The appellant had conceded that she did not keep any physical records of the audit. The Tribunal did not indicate, either way, what it thought about this matter. Instead, it stated at [64] that "[the appellant's] evidence was that she initiated and managed the audit process" and that, in these circumstances, it was satisfied she "bore a significant level of responsibility for the circumstances which led to the loss of approximately 21 firearms". Possibly this could be taken as a tacit acceptance of the appellant's evidence. However, it is unclear whether the "circumstances" referred to here were limited to the audit process, or included other aspects of the appellant's involvement in the business of the Range. This issue was similarly central to the Tribunal's decision, not only about the appellant's level of responsibility for the loss of firearms, but also her general concern for and compliance with safe storage requirements.
4. Second, the Tribunal made no clear findings regarding the appellant's cooperation (or lack thereof) with police following the discovery of the missing firearms. In the hearing below, the respondent submitted that the appellant "made no effort to identify or provide any information about the firearms which had been missing from the dealership, despite her intimate involvement in the operation of the dealership" (Decision at [33]). The respondent also suggested that the reason that the firearms remained missing, posing a risk to public safety, was the appellant's failure to tell the police their whereabouts (Decision at [34]). This is a serious allegation. Both parties, in the hearing below and on appeal, treated this as a key consideration in assessing the appellant's "prior conduct", and its bearing on whether she should be granted a firearms licence.
5. However, it is unclear whether the Tribunal accepted the respondent's submissions about this allegation, or considered them at all. As noted above, in the absence of a clear finding, the appellant has been forced to operate on the assumption that the Tribunal impliedly found that the appellant was uncooperative with police, aptly demonstrating the confusion that can arise from a failure to make clear findings, particularly in relation to an issue so important as a firearms licensee's past conduct. It is our view that, given the centrality to the Tribunal's decision of the appellant's involvement in the loss of the firearms and the investigation that followed, the Tribunal should have made a finding about her cooperation with police in relation to the firearms missing in 2015.
6. Third, with respect to the aftermath of the 2013 incident, the Tribunal did not make a finding about whether the appellant's decision to transfer her firearms to the dealership, such that they were not seized by police, was intended to "thwart" or "undermine" the legislative scheme. As the Tribunal emphasised at [62], the appellant's ability to comply with registration requirements bore directly on the ultimate issue of public safety. It was the respondent's submission that the appellant's failure to surrender her firearms to police was "frowned upon", was a breach of the Firearms Act, and should be enough, by itself, to deny the appellant a licence. Together with the appellant's failure to provide the police with information as to the whereabouts of the missing firearms, the respondent contended that this evidence "should carry significant weight in the matter" (Decision at [36]). This issue, being the subject of extensive submissions and evidence in the hearing below, clearly constituted a "central controversy" in the sense described in Mitchell.
7. It may be possible to infer that, by not making findings on these points, the Tribunal either tacitly rejected the respondent's submissions and evidence, or alternatively, did not consider the issues to be important to the decision at hand. However, given the emphasis placed on these issues by the parties in written and oral submissions below, and the adverse implications for the appellant, such a process of reasoning should have been made clear to the parties. We consider that the Tribunal should have made findings on these matters.

No reference to supporting evidence on material question of fact

1. In addition to failing to make findings in relation to central controversies, the Tribunal failed to refer to evidence to support a material finding of fact. As noted in Orr, when the Tribunal makes findings on material questions of fact, it should refer to the evidence on which those findings are based. Although the Tribunal impliedly found that the appellant failed to ensure the safe storage of firearms at the Range, no evidence was referred to in support of this conclusion (indeed, as discussed below, it appears there was no evidence before the Tribunal to support any such finding). The finding that firearms were inappropriately stored is relied on by the Tribunal in its determination that it is against the public interest to grant the appellant the licence she seeks.

Reasoning process that led to ultimate conclusion unclear

1. Noting Bell P's comments in Orr about giving latitude to looseness of language, that it is not necessary to make an explicit finding on each disputed piece of evidence, and the need to read the Tribunal's reasons as a whole, nonetheless the Tribunal's reasons must provide an explanation connecting the findings of fact with the decision reached.
2. We agree with the appellant's submissions that it is difficult to discern from the Tribunal's reasons what her involvement was in the loss or theft of firearms in 2015 and therefore her level of responsibility. In our view, it was necessary for the Tribunal to make findings about her involvement in those events in 2015 to a greater extent than it did, in order to assess how public safety would be put at risk by granting the appellant an ABH licence in the context where she would no longer have any management role at the Range whatsoever. A general finding that she had a de facto management role "at crucial times" does not explain how she was responsible for the theft or loss of the firearms in 2015. Without specific findings of fact as to why she was responsible and her shortcomings in this regard, it is difficult to discern the Tribunal's reasoning process as to how public safety could be affected in the future by granting the appellant an ABH licence for the limited purposes for which she seeks it, and ultimately how it is against the public interest to grant the licence sought and for the reasons sought by the appellant.
3. As there are insufficient findings of fact (whether those findings are express or inferred) as to the appellant's involvement in the theft or loss of the missing firearms, there is no real explanation as to why her prior conduct means the public safety would be at risk and why granting a licence is against the public interest. This is particularly so where the Tribunal accepted that she is no longer in a de facto management role in the Range. Put another way, the reasoning process that led the Tribunal to the conclusions it made are not sufficiently set out in the reasons.
4. In summary on the question of adequacy of reasons, we consider that the Tribunal erred in law by failing to make findings in relation to central controversies material to whether it was against the public interest to grant the appellant the licence sought, failing to refer to the evidence on which a material finding of fact ("inappropriate storage") was made, and failing to set out a clear reasoning process that explained why the appellant bore responsibility for the theft/loss of firearms in 2015 such that the appellant would be a risk to public safety. Without giving an explanation as to why her past conduct means she would present a risk to public safety, it is difficult to discern from the Tribunal's reasons why it is against the public interest to grant her the licence for the limited reasons sought.

No evidence for material finding of fact

1. Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it.

That the appellant was de facto manager of the Range

1. Both parties made a number of submissions on appeal concerning the Tribunal's express finding that the appellant was the de facto manager of the Range at "crucial times". The appellant submitted that this conclusion was not open to the Tribunal, and there was no evidence to support it in circumstances where: the appellant was not a public officer of the Range; the appellant did not have a financial interest in the Range; "nothing was ever done without consulting" the appellant's husband; her husband was frequently present at the Range; the appellant was not the only person involved in the audit process; and the appellant was absent at the time the firearms were discovered missing.
2. We think that it was open for the Tribunal to find, on the evidence before it, that the appellant was a de facto manager at the Range, and was involved to a significant extent in the operation of the business, at least in some respects, notwithstanding that the appellant also adduced evidence to the contrary. While the Tribunal's reference to "at crucial times" is imprecise, we take it to be a reference to the 2013 and 2015 incidents, so that what the Tribunal meant was that the appellant was a de facto manager at the time of these incidents. As noted in Orr at [77], appellate bodies should have a degree of tolerance for loose language.
3. However, a finding that she was a de facto manager at the Range at the time of the 2015 incident does not provide an explanation as to why she bears significant responsibility for the loss/theft of the missing firearms in 2015 without more specific findings as earlier discussed.

That the appellant failed to properly store firearms

1. As noted earlier, the implied finding at [65] of the Decision is that the Tribunal found that the firearms at the Range must have been "inappropriately" stored, which resulted in the 2015 incident, and that the appellant played some role in that "inappropriate" storage. Given the Tribunal's failure to make findings on other aspects of the appellant's past conduct - i.e. whether she conducted an audit prior to her holiday, whether she cooperated with police, and whether she attempted to "thwart" the legislative scheme in 2013 - this implicit finding on storage carries even more significance.
2. In relation to the 2015 incident, the appellant's husband was charged, and found guilty, under s 39(1)(b) of the Firearms Act, which requires a person in possession of a firearm to "take all reasonable precautions to ensure… that it is not stolen or lost". There were no charges laid in relation to the "safe keeping" of firearms (s 39(1)(c)).
3. Aside from the fact that firearms went missing, there was nothing in the evidence (or even the submissions) before the Tribunal to indicate that the storage practices at the Range were in contravention of the firearms regulations, or were otherwise "inappropriate" in a way attributable to the appellant.
4. In our view, the Tribunal erred in law by making a material finding of fact without evidence, or logically probative evidence, to support that finding.

Failure to take into account relevant matters

1. As noted earlier, a discretionary decision may be attacked for error of law where it can be demonstrated that the decision maker "failed to take into account, or gave insufficient weight to, some relevant matter": House v King; Hannaford.
2. In this case, the Tribunal did not properly consider the substantial evidence and submissions before it that the appellant was a conscientious firearms owner, and had a good record of compliance in relation to her personal licence. By neglecting to properly consider evidence relating to the appellant's personal firearms record, the Tribunal arguably failed to grapple with relevant factors weighing against the appellant posing any risk to public safety if she were to have her ABH licence reinstated.
3. In this respect, relevant factors that the Tribunal should have taken into account included that: 1. the appellant is of good character and character references were given for her which attested to her personal responsibility, knowledge and respect for firearms safety requirements, 2. she has a clean police record apart from the plea of guilty in relation to the 2013 incident where no conviction was recorded; 3. police witnesses described her as fully competent, frank, helpful and civil (acknowledged in the Decision at [26] and [28]); 4. there is nothing to suggest that there is any threat to the public or public safety from the appellant herself; 5. there has been no complaint about her conduct since the 2013 and 2015 incidents; 6. she has received extensive weapons training as an Army reservist and elsewhere and is very knowledgeable about matters to do with firearms (which the Tribunal accepted at [62], but appeared to dismiss because that training occurred before the 2013 and 2015 incidents); 7. she is no longer involved in the management of the Range (which the Tribunal accepted at [10] of the Decision); 8. it was clear that she was not directly responsible for the 2013 and 2015 incidents. In 2013, the appellant was not directly supervising the Range itself at the time of the suicide. She was on the reception desk and states that she pleaded guilty to an offence (with no conviction recorded) because she considered that she was vicariously liable in some way. As to the 2015 incident, there is nothing to suggest that she personally removed or permitted the removal of the missing firearms in 2015. No charges were laid against the appellant arising from the loss of firearms, and she gave evidence, not rejected by the Tribunal, that she was on holiday at the time the firearms went missing. 9. there have been no difficulties concerning her own firearms. When the appellant's licence was suspended after the 2013 incident she transferred ownership of her firearms to the dealership associated with the Range. The transfer of her firearms to the dealership was accepted to mean that she did not have access to them. Although the respondent submitted that this practice was "frowned upon" (based on the evidence of Senior Constable Jackson, see transcript at page 921 of the appeal bundle), the Tribunal made no finding on this matter; 10. the evidence does not suggest that the appellant had a lax attitude to firearms and their storage and safety. Both the 2013 and 2015 incidents occurred while she was an employee and "de facto manager" of the Range. As such, it might be accepted that she had a degree of responsibility, but was not directly involved. However, it was undisputed that she is well trained and knowledgeable about firearms legislation (as the Tribunal noted at [59]).
4. The above is not intended to be viewed as a list of "mandatory" considerations. It is a matter for the Tribunal what weight it gives to the evidence before it. If the Tribunal had dismissed or failed to consider one or a handful of these factors, it may not have constituted an error, or at least not an error with any material consequence. However, taken cumulatively, the Tribunal's omissions amounted to a failure to consider (or to explain in its reasons, if it was considered) the degree of relevant connection between the public interest in granting or refusing the appellant's personal firearms licence application and the incidents in 2013 and 2015.
5. The fact that the respondent had not "put the appellant's character in issue" did not make consideration of the appellant's personal record with firearms as irrelevant as the Tribunal appeared to treat it. It was correct for the Tribunal to state that the appellant's "prior conduct" was relevant to the protection of the public interest. However, in our view, the Tribunal took too narrow a view of what that prior conduct was: Decision at [60].
6. The public interest test involves (but is not limited to) looking at the applicant's conduct and not the fact of a conviction (or otherwise): Bazouni and Ors v Commissioner of Police [2002] NSWADT 100 at [21]; Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31.
7. It is erroneous to "quarantine contraventions" that relate to one type of licence when considering whether another type should be revoked: Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234 ("Lee") at [25]; Hijazi v Commissioner of Police, NSW Police Force [2015] NSWCATAP 82 at [46]. For this reason, it cannot be said that, because any failings the appellant had as a de facto manager did not stem directly from her personal firearms licence, they are irrelevant considerations to the public interest in reinstating that licence. However, it is appropriate to consider the closeness of the connection between the incidents at the Range, the appellant's role in them, and the licence for which she applied, together with other evidence more directly related to the type of licence sought: Oliver v Commissioner of Police, NSW Police [2007] NSWADT 153 at [36]-[39].
8. In our view the Tribunal also failed to adequately consider whether there was an undue focus on punishment, rather than public safety, in the respondent's decision to refuse the licence. At the time of the Tribunal's decision, the appellant had not held a firearms licence for a period of 4 years; this was quite a long period. This should have given rise to considerations of proportionality, informed by the degree of connection between the appellant's involvement in the incidents at the Range and her application for an ABH licence.
9. The Tribunal correctly stated at [60] that the licensing regime is not intended to be punitive, citing Petas v Commissioner of Police, NSW Police [2013] NSWADT 137 ("Petas") at [36]. In that case, the former Administrative Decisions Tribunal set aside a decision by the Commissioner to refuse an application for a category AB firearms licence. Mr Petas was the duty officer at a shooting club when a probationary member stole a pistol from the club, and used that pistol in a homicide. The Tribunal found that the appellant "plainly lack[ed] the competence to perform the role of a director or office-bearer of a gun club", and that his "performance as the Club's duty officer contributed to - but was not the only cause of - the tragic events that unfolded". The appellant had "made it plain" that he never intended to be the director of a shooting club again. While it would be "easy to demonise Mr Petas" and to "punish him further", the Tribunal found that issuing him a category AB licence did not pose a risk to the safety of the public, given his "long history of dealing with firearms safely": Petas at [1]-[5], [31]-[37].
10. Granted, in the present case, the number of firearms stolen from the Range was larger, and the ABH licence sought by the appellant is broader than in Petas. However, we think it would have been appropriate for the Tribunal to acknowledge a similar delineation here - between the appellant's conduct as a manager (noting that the Tribunal was satisfied at [50] that the appellant was no longer in a "de facto management" role) and the likelihood of her personally posing a risk to public safety through possessing a firearm - albeit without treating these matters as completely separate, or excluding consideration of the former. It was necessary for the Tribunal to consider what factors fostered a connection between the incidents at the Range and the level of risk that would be posed to the public if the appellant were granted a firearms licence.
11. In our view, the Tribunal erred by failing to take into account, and/or give sufficient weight to, relevant matters that, considered collectively, were significant to the question of whether issuing a licence to the appellant would be contrary to the public interest. We think that this amounted to an error in the sense referred to in House v King.
12. Based on the errors of law discussed above, we are satisfied that the appeal should be allowed.

Onus and standard of proof

1. Several issues were raised in this appeal about the onus and standard of proof in the fact-finding exercise undertaken by the Tribunal. While not necessary to determine this appeal, we will comment briefly on onus and standard of proof in administrative review cases.

Whether the Tribunal found that appellant bore an onus of proof

1. In a matter involving review of administrative action, there is no onus of proof strictly so-called, unless there is a provision to the contrary (e.g. s 100(3) Taxation Administration Act 1996 (NSW)). It is well established that, as the Tribunal may "exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision", an applicant for review is not subject to any burden of proof, the Tribunal's obligation being whether the decision under review is the correct and preferable decision on the basis of the available material: Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425; [1992] HCA 47; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; [2006] HCA 53 at [39]-[40].
2. We note that, in its internal review dated 16 January 2019, the respondent expressly noted that there is no onus of proof in administrative decisions about firearms licences. The Tribunal made no comment about the respondent's onus of proof in the Decision.
3. The appellant argued that the Tribunal's statements at [64] of the Decision indicated that it treated the appellant as bearing the onus of proof to establish how many firearms were "eventually found" and what "practices [were] adopted to prevent future losses". The appellant submitted that she did not bear such an onus, particularly in circumstances where information about the police investigation would be equally within the knowledge of the respondent. A police witness, Senior Constable Jones was in fact asked how many firearms had been recovered at first instance, and was unable to recall. The respondent, in reply submissions, said that the Tribunal did not impliedly impose any onus, but only stated, correctly, that the appellant had not provided evidence about certain things, either to the Commissioner or to the Tribunal.
4. This alleged error was not raised in the appellant's grounds of appeal and it is noted that the appellant, despite being represented by counsel, did not seek leave to amend her notice of appeal. In the ordinary course, an appellant should be bound to the grounds raised in a notice of appeal, unless given the permission of the adjudicative body to amend. Section 53 of the NCAT Act provides that the Tribunal may amend a document, including an appeal, if it considers it necessary in the interests of justice. However, given that we have allowed the appeal on other grounds, it is not necessary to consider this issue further, or to determine whether error may have occurred by way of the Tribunal applying an onus of proof in making findings of fact in the proceedings below.

Whether error to "adopt" the standard of proof in the Evidence Act

1. We asked the parties at the appeal hearing if they wished to make any submissions regarding the Tribunal's statement at [39]-[40] of the Decision that it "adopts" the standard of proof in s 140 of the Evidence Act 1995 (NSW) "in making its determinations of fact". That section provides that a court in a civil proceeding must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Neither party availed itself of the opportunity to make submissions on this matter.
2. As noted at [18] of the Tribunal's Decision, it was the appellant's own submission at first instance that the standard of proof applicable in the proceedings was "on the balance of probabilities". This was repeated in the appellant's reply submissions on appeal, where the appellant submitted there "is no evidence that established on the balance of probabilities that the Appellant did anything which contributed to the theft or loss of the firearms or adversely impacted the integrity of any records".
3. Section 140 of the Evidence Act, which sets out the standard of proof in civil cases to which that Act applies, is for Tribunal guidance only, and ordinarily a party seeking administrative review of government action is not required to establish its case on the balance of probabilities: Bronze Wing Ammunition v SafeWork NSW (No 2) [2016] NSWSC 988 at [76]-[77]; Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127].
4. Rather, in an administrative review case, the parties put on such evidence as they wish and, in a matter of this kind involving the exercise of a discretion, it is a matter for the Tribunal to properly consider all relevant materials and ignore all irrelevant matters in exercising the power of the relevant administrator in review proceedings. This is especially the case where a decision has been taken on a discretionary basis in light of the public interest.
5. Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17].
6. In Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127], Leeming JA acknowledged the "strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply" (also see Sullivan at [115] (Flick and Perry JJ)). However, his Honour noted that this "should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT".
7. The so-called "Briginshaw standard" generally requires that a tribunal of fact "feel an actual persuasion" of the existence of a fact before it can be found, and that any allegation be made out to the "reasonable satisfaction" of the tribunal, depending on the gravity of the matters alleged: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 10 CLR 445; [1992] HCA 66 at [2]; Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44]-[48].
8. On these authorities, it has been considered acceptable for the Tribunal to rely on the Briginshaw standard as a guide, notwithstanding that the rules of evidence generally do not apply. Given that the Briginshaw standard has been seen as a "refinement" of s 140, it is arguably similarly permissible for the Tribunal to be guided by that test: Bronze Wing Ammunition Pty Limited v SafeWork NSW (No 2) [2016] NSWSC 988 at [76].
9. As we have allowed the appeal on other grounds, and because the parties did not make any submissions suggesting otherwise, we do not need to consider whether any potential error may have occurred by the Tribunal adopting the standard of proof in s 140 of the Evidence Act and if so, whether any practical injustice resulted.

Conclusion

1. We have concluded that the Tribunal erred in law by: (1) giving inadequate reasons for its decision through failing to make findings of fact on key issues contested by the parties, and failing to set out a clear reasoning process in making its ultimate determination; (2) making a material finding of fact with no evidence or no logically probative evidence; and (3) failing to take into account various relevant matters to such an extent that it amounts to a House v King error. We consider that these errors of law were material in the sense that they may have made a difference to the Tribunal's decision, and we accordingly have decided to allow the appeal.
2. It is unnecessary to deal with the leave point.
3. Section 81(1)(e) of the NCAT Act provides that, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including orders that provide for the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with Appeal Panel directions.
4. Having regard to the limited, often vague or implied findings of fact made by the Tribunal below, we do not think it is feasible for us to make a substituted decision without embarking on a rehearing under s 80(3) of the NCAT Act.
5. We have decided it is appropriate to set aside the Tribunal's decision, and to remit the appellant's application for the ABH firearms licence to a differently constituted Tribunal to be reheard consistently with these reasons.

Orders 1. The appeal is allowed. 2. The decision made by the Tribunal on 19 September 2019 is set aside. 3. The application is remitted to a differently constituted Tribunal for rehearing and determination consistently with these reasons, with such further evidence as the Tribunal, by leave, allows.

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: 10 June 2020