Pajic v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2022-01-21

What these proceedings are about

These proceedings concern the Commissioner of Police's decision to refuse the applicant's Category AB Firearms licence application on 16 July 2021.
The refusal was on the basis that the Commissioner believed that it was not in the public interest for the applicant to hold a firearms licence. In the Notice of Refusal those matters predominantly concerned what was referred to as Mr Pajic's poor traffic history including three infringements for exceeding the speed limit by over 20 kmph. Additionally in 2012 Mr Pajic was charged with failing to disclose driver's identity.
The Commissioner's delegate observed that firearms possession and use was a privilege and that strict controls were in place to ensure public safety. The delegate referred to the implied need for licence holders to act responsibly and in accordance with legislation. The delegate was not satisfied that bearing in mind Mr Pajic's (apparent) disregard for the law in other areas that he would be able to act responsibly in accordance with legislation in respect of his use of firearms. For that reason the delegate determined that it was not in the public interest for Mr Pajic to be issued the licence and the application was refused.
For the reasons which follow, the Tribunal has determined upon review based on all of the evidence and material now before it, that the correct and preferable decision is to affirm the decision of the Commissioner.

Background

On 24 July 2020 Mr Pajic lodged an application for a Category AB firearms licence for the genuine reason referred to in the application of 'Recreational Hunting / Vermin Control'. This reason was selected from the 15 reasons provided by the Commissioner on the electronic lodgement form. Reference was also made to Mr Pajic's membership of the Zastava Hunting Association.
A Notice of Refusal issued on 16 July 2021 providing a statement of reasons for the refusal and setting out Internal Review rights. Mr Pajic appears to have applied in accordance with his right to Internal Review on 4 August 2021 provided a detailed email as an application for review of decision. It appears that prior to the Commissioner acknowledging or undertaking the Internal Review Mr Pajic filed an administrative review with the Tribunal on 25 August 2021. It is unclear of the specific reason for the administrative review being filed at this time in the absence of an Internal Review decision. When the matter came on for hearing this matter had not been raised by either party with the Tribunal, including the question as to whether the application to the Tribunal was out of time. I will address this below in finding jurisdiction for the review.
In his application for administrative review Mr Pajic relied on a number of grounds which he set out in submission form. Of relevance was his ground that the delegate had relied on incorrect information. Mr Pajic also submitted that the Court finding of not guilty in respect of a charge relating to using a telephone to menace and harass had not been appropriately considered. In addition there was a submission that the refusal was in part because he had made complaints about the Police involved in his matters.

Jurisdiction

The Notice of Refusal was issued under the provisions of the Firearms Act section 11. Relevantly section 11 provides: 11 General restrictions on issue of licences(cf 1989 Act s 25, APMC 4, 5, 6) (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. …. (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The first matter listed at s 75 concerns refusals to grant a licence application. Relevantly the section provides: Part 8 Applications to Civil and Administrative Tribunal 75 Administrative reviews by Civil and Administrative Tribunal of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,
The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal has jurisdiction under the Firearms Act as noted at [11] above. I note that the section does not require that the administrative review follow an internal review.
As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.
Section 9 of the ADR Act confers jurisdiction on the Tribunal to conduct administrative reviews. The section provides: 9 When administrative review jurisdiction is conferred (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. (2) If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.
I observe that s 75 of the Firearms Act provides for applications to be made to the Tribunal, therefore satisfying s 9 (1) of the ADR Act. Section 9(2) refers to reviews being subject to conditions imposed by the enabling legislation. As s 75 of the Firearms Act as the enabling legislation does not impose any conditions (such as the requirement of an internal review) I note that there is no impediment in that regard to the Tribunal's jurisdiction to conduct the administrative review sought by Mr Pajic.
However s 55 of the ADR Act places a requirement that if a person is entitled to seek an Internal Review, the Tribunal cannot conduct an administrative review in the absence of an internal review, unless it grants leave, (s 55(4) ADR Act), or certain factors are present. Section 55 (3) provides that: 55 Making of applications (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).
Section 53 (9) of the ADR Act provides: 53 Internal reviews (9) When an internal review is finalised An internal review is taken to be finalised if: (a) the applicant is notified of the outcome of the review under subsection (6), or (b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on). Note - Section 55 provides that an interested person may apply for an administrative review under this Act of an administratively reviewable decision once an internal review of the decision is taken to be finalised under this subsection. (Emphasis added)
I note from the matters outlined at [9] above that the internal review is taken to be finalised in accordance with s 53(9) (b) of the ADR Act. In respect of the timing of the application, there was discussion at the beginning of the hearing by the Tribunal with the parties concerning s 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and the interplay with sections 53, 55 and 63 of the ADR Act, and whether the matter had been received within time. However by the application to the Tribunal being received under s 53 (9) of the ADR Act it is taken to have been received within time. The Commissioner's representative did not press this matter further and agreed that the Tribunal had jurisdiction to hear the matter.

The decision under review

In the Internal Review the senior delegate made a number of findings of fact including that the applicant was:

Issued with Traffic Infringement Notices on a number of occasions for exceeding the posted speed limit with at least three occasions involving exceeding the speed limit over 20kmph.
That in 2012 Mr Pajic was charged with Responsible person / custodian not disclose driver's identity.

Administrative Review by the Tribunal

The applicant filed his application for Administrative review on 3 September 2021. The application was filed within the period provided to lodge an administrative review application with the Tribunal.
The matter was heard over a full day on 21 January 2021.

What issues do these proceedings raise for determination?

On my assessment the issues are as set out by the Commissioners delegate:

Is it in the public interest for the applicant to hold a licence?

This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant's written evidence

Exhibit 'A-1' Application for Admin Review - Refusal Decision / Statement of Reasons 16 July 2021
Exhibit 'A-2': Statement of M Pajic dated 12 September 2021 and attachments.
Exhibit 'A-3': Applicant's evidence bundle filed 15 November 2021 9 attachments.
Exhibit 'A-4' applicant's written response and attachments (2 x PDF) evidence files, filed 12 January 2022,

Respondent's written evidence

Exhibit 'R-1' Documents filed under s 58 ADR Act filed 14 October 2021.
Exhibit 'R-2' Supplementary Bundle of s 58 documents filed 13 January 2022.
Exhibit 'R-3' Statement of Sgt L Baker dated 16 December 2021.
Exhibit 'R-4' Statement of SC B Adba dated 15 December 2021.

The Commissioner also relied on written submissions filed 20 December 2021. In the material submitted to the Tribunal in respect of Mr Pajic's administrative review, the Commissioner relied upon a significant amount of material and evidence concerning why it was not in the public interest for Mr Pajic to hold a firearms licence. The vast majority of this material did not concern Mr Pajic's traffic record but further significant matters which the Commissioner sought to rely upon arising from an insurance claim and associated matters.
A summary of the fresh material submitted for the review relates to the criminal charge preferred against Mr Pajic. The background to the adverse matters / allegations being that Mr Pajic was involved in a motor vehicle accident in 2014. Apparently Mr Pajic made an insurance claim arising from that incident. The insurer determined to investigate aspects of the claim noting a claims history. As part of this investigation the matter was allocated to a Solicitor ('ND') who had carriage of the matter. Overt surveillance was conducted of the claimant (Mr Pajic) which at times covered his home life. By Mr Pajic's own evidence he had significant issues with the apparent intrusion of surveillance and made legitimate inquiries with the insurer as to who was in charge of the matter. The Commissioner's case in these proceedings was that Mr Pajic used various means to locate private phone and email contact details with attempted and successful contact escalating to threats against 'ND'. Mr Pajic maintained that his only issue with the matter related to the intrusion on his wife and young children and an alleged assault on him by the person conducting the surveillance.
The Tribunal noted that none of these matters were raised in the decision to refuse Mr Pajic' application for a Category AB Firearms Licence.

Mr Pajic's evidence at hearing

In evidence in chief Mr Pajic described himself as a taxation accountant. He formally adopted his statement as true and correct to the best of his knowledge.
In cross-examination Mr Pajic was taken to the transcript of the Local Court in respect of a hearing of a charge of Use carriage service to menace / harass / offend. That charge arose from the insurance matter referred to at [27] above. Mr Pajic was accused of harassing a lawyer engaged by an insurance company who were investigating a personal injury insurance claim lodged by Mr Pajic. The lawyer 'ND' made a number of reports to Police about threats to him and his family and unwarranted phone calls demanding 'ND''s mobile phone number.
Police investigated those matters and identified Mr Pajic as a suspect in those matters and attended Mr Pajic's work address as the IP address of harassing emails was traced to that address. In July 2017 Mr Pajic was interviewed by Police as part of the investigation of the matters concerning harassing 'ND' and his family. After further evidence was obtained and Mr Pajic declined to be interviewed about that evidence, Police charged Mr Pajic in October 2017 with the offence outlined at [30] above.
Mr Pajic outlined the history of the matter as follows. On 21 November 2016 he saw the insurance investigator conducting surveillance. On 23 November 2016 he emailed 'ND' about the matter. He said that he was concerned that the investigator was videoing his children in the backyard. In March 2017 he received the DVD / USB of the surveillance as he had requested. He also said that he contacted the QBE (insurer) client manager about the matter.
Mr Pajic was taken to page 33 of exhibit 'R-2' which contained the transcript of the Local Court hearing. The transcript contains the following evidence about the exchange between Mr Pajic and the investigator. And I walked towards him and I said :Listen, can you stop recording my kids? .. They feel scared". He stood up and grabbed me for neck [sic] and pushed me against the bus stop and he walked off. I felt scared for my life. Well I called the Green Valley Police Station. They said "Sorry can you identify the person?" I said "All I can say, he's around 40, 41. He's a Caucasian dark hair, well built. He's wearing a Chicago blue singlet and shorts. He's videotaping my kids and assaulted me". And they said "Sorry we cannot drive around to see if we could see that person. Never happen" [sic]. In late March I received a DV - DVD of the - myself surveillancing [sic] me in a gym. I was in a gym it has all mirrors around so that person is videotaping himself also. So my wife looked at footage and she said "This is the person who was across the road from bus stop, this person who assaulted you and this is the person who followed my kids to shopping centres myself"[sic]. And I was very angry.
In cross-examination the Commissioner's representative submitted that Mr Pajic never contacted QBE prior to receiving the DVD as he had claimed in his statement. Further it was put to Mr Pajic that he already had 'ND's phone number contrary to his evidence in the Local Court at 37 of 'R-2'. Mr Pajic did not accept that the evidence of calls to 'ND's home phone on 21 April 2017, 22 April 2017, 23 April 2017, 24 April 2017, 25 April 2017 and 3 May 2017 were made to 'ND's home phone. Mr Pajic maintained that he was calling all of the numbers that he had / could identify and that he did not already hold the number. He stated that to his knowledge he never called 'ND' but was trying to locate him by calling and asking for him. He said 'I did contact that number but I was not aware that it was his number'.
Mr Pajic said that he reported the assault by the investigator at least five times to Police prior to 13 July 2017. The Commissioner maintained that Mr Pajic only ever reported the assault once and that was on 13 July 2017.
Mr Pajic was asked about his police interview from July 2017 about these matters and whether he recalled admitting to trying to contact 'ND'. The Commissioner suggested that in his answers to Police in July 2017 Mr Pajic was not frank and honest with them. Mr Pajic says that he was being positive towards the Police as he was voluntarily assisting them and answering their questions about the matter.
There was significant disagreement between the parties during cross-examination about when Mr Pajic reported the assault by the investigator. He maintained that it was in November 2016 whereas the Commissioner maintained that the first report was July 2017. This line of questioning appeared relevant only to determining Mr Pajic's honesty and candour before the Tribunal, a matter the Commissioner pressed.
Mr Pajic was questioned about the matter which gave rise to the insurance claim. He said that he had a car accident in 2014. He said that the surveillance occurred in September, October and November 2016. In November 2016 he claimed that the investigator assaulted him and he reported the matter to Police '10 minutes later'. He said that he followed the matter up on at least five occasions. He said that he did not get anywhere with Police and that he contacted the Law Society, QBE and the Office of the Legal Services Commissioner (OLSC) to complain about the investigator and 'ND' the solicitor with carriage of the matter.
When questioned about his attempts to call 'ND' at home and work in April and May 2017 and the timing of the complaint to the OLSC, Mr Pajic accepted that his order of events was wrong and that the OLSC complaints were made in late April and early May 2018.
The Tribunal observed that during his cross examination Mr Pajic repeatedly answered (when asked about specific matters recorded in the documents filed in evidence) that he had not read or checked the material and therefore was unable to confirm what may have been otherwise recorded about a specific matter. Likewise when Mr Pajic was asked about specific matters and to agree or disagree he repeatedly prefaced his answers with the words ' to the best of my knowledge'.
When asked about his earlier assertion that the Magistrate had said that the Police investigation of the matter was not proper, Mr Pajic said that to the best of his knowledge the Magistrate described the investigation as a 'big faller'. The Commissioner said that from an examination of the Transcript it was clear that the Magistrate never described the case that way. Mr Pajic maintained that was how the overall position at Court about the Police case could be translated.
When asked for the basis of the prosecution Mr Pajic gave evidence that Police were corrupted in the matter and received some financial benefit from the alleged victim of the telephone contact. The Tribunal noted that he made a number of assertions about conspiracies against him and improper motivations of others against him at this stage of his cross-examination. The Tribunal noted that in all of these matters (including an allegation that the Commissioner's legal representative had damaged his car), there was absolutely no evidence put before the Tribunal other than Mr Pajic's assertions on oath.
The Tribunal notes that the formal professional complaints about 'ND' and the law firm that he worked for were not sustained. Mr Pajic agreed that after the OLSC complaint 'ND' ceased working on his insurance matter.
The Tribunal asked a number of question of Mr Pajic consistent with the provisions of s 38 of the NCAT Act (to inform itself as it sees fit), beginning with confirmation of whether Mr Pajic had received a copy of all of the Commissioner's material with sufficient time to prepare for the hearing of his matter. Mr Pajic confirmed that he had received them some time ago.
The Tribunal inquired into the basis of his evidence that his car had been vandalised and that he knew the basis for that action. Mr Pajic said that the damage occurred on 31 October 2021 just when the Commissioner's lawyer and he were exchanging their evidence and material for this hearing. Mr Pajic believed that the coincidence in the timing of the proceedings as somehow relevant to the damage, with the purpose of pressuring Mr Pajic to drop his review. The Tribunal notes that there appears to be no cogent basis for this allegation concerning the Commissioner's lawyer other than Mr Pajic connecting the matters by coincidental timing.
Mr Pajic said that he had been a Justice of the Peace for the last 10 years. When asked by the Tribunal about the domestic violence allegations referred to in the Commissioner's material from some 15 years earlier he said that he had ended the relationship in 2005. In respect of the interim Apprehended Violence Order (AVO), Mr Pajic said that there was no hearing of the matter as the person to be protected by the Order (the person in need of protection - PINOP) did not press the matter.

Commissioner's evidence

The Commissioner relied upon the material outlined at [25] above. Sergeant Baker gave evidence and adopted his statement (Exhibit 'R- 3').
In cross examination he was asked about the error in [8] of this statement concerning Mr Pajic's date of birth which was clarified with nothing arising.
Senior Constable Adba also gave evidence at hearing and adopted his statement (Exhibit 'R-4'). The witness was asked about his searches of the COPS system for records of a report from Mr Pajic prior to 13 July 2017 about the assault of 23 November 2016. The witness stated that there was no evidence of any report prior to 13 July 2017.
In cross-examination the witness was asked how long he had knowledge of the person 'ND'. The witness was unaware of 'ND' prior to 13 July 2017 when the first recorded report was made. The witness (who was based at Day Street Detectives in the Sydney CBD) was asked why they had taken on the investigation if 'ND" lived near Strathfield. The witness said that city detectives were tasked with the matter due to the physical location (in Kent Street Sydney) of the IP address.
Mr Pajic asked the witness whether he had received any financial benefit from Mr 'ND' to which the witness answered no.
When questioned about the IP address matter as referred to in 'ND's statement, the witness stated that the charges did not relate to a complaint being made to the ACCC purportedly by 'ND' from Mr Pajic's work IP address, but solely to the matter of the telephone calls. In that context the witness said that the IP address issue was no longer relevant to the Police prosecution.
In re-examination the witness was asked by the Commissioner why the IP address matters did not progress to charges. The witness said that their investigation determined that a number of persons had access to the IP address in the workplace. Up to 10 people worked in the Company where the IP address originated with access to some via Wi-Fi networks. For those reasons at best there would only be a circumstantial case against Mr Pajic should a prosecution be commenced.

Commissioner's submissions

The Commissioner made oral submissions at hearing and advised that at the conclusion of the evidence they did not resile from their written submissions.
The Commissioner submitted that there were four basis as to why the Tribunal should not accept Mr Pajic's position on the matter and agree that it was not in the public interest for him to hold a firearms licence.
The first basis being that Mr Pajic was not frank with the Tribunal in his evidence at hearing. References to his repeated denial that he had called 'ND' at any stage, and that he had reported the assault matter to Police numerous times prior to July 2017, were significantly against the weight of evidence. On this basis the Commissioner submitted that Mr Pajic was neither frank nor honest in both his dealings with Police or his duty to disclose matters truthfully to the Tribunal.
The second basis concerned Mr Pajic's pattern of behaviour. The Commissioner submitted that his behaviour was such that he could not be entrusted with the responsibility that attaches to firearms licence holders.
The third basis was that his behaviour in pursuing those who were legitimately vetting his insurance claim, had continued to now pursuing and making allegations against those who were standing in the way of his licence application. The assertions and allegations of malfeasance and corruption of the Police witnesses at hearing as well as the unfounded allegations against the Solicitor representing the Commissioner at hearing showed how Mr Pajic reacts to any matter (large or small) which comes between him and what he is seeking to achieve. This, like the second matter, is contrary to the type of character necessary to discharge the requirement that the issuing of licence in this instance be in the public interest.
The fourth basis is that to the civil standard, on the balance of probabilities, the Tribunal could be satisfied that on the available evidence it was Mr Pajic who had contacted 'ND' and his family and made the threats, even if to the criminal standard of being satisfied beyond reasonable doubt, the matter had not been made out at Court.
The Commissioner submitted that Mr Pajic was not frank , especially since his insistence that there was surveillance after March 2017 when there is no evidence before the Tribunal to establish such an assertion. Likewise with the report of the assault to Police. The Commissioner submitted that based on Mr Pajic's own evidence (annexure 'A' to Exhibit A-3) that it was open to the Tribunal to make a finding that the report was first made on 13 July 2017.
In addition the Commissioner submitted that based on the Local Court Transcript (which Mr Pajic would not engage on in his evidence) the Magistrate was never critical of Police in bringing the charge.
Further the Commissioner submitted that the Tribunal should make a finding that Senior Constable Adba was not corrupt and that there was no evidence to support the allegation that he was. The allegation being that he received a financial benefit to bring the charge against Mr Pajic.
The Commissioner made submissions about Mr Pajic's evidence at the hearing. When interviewed by the Detectives at Day Street Mr Pajic said that he never called 'ND'. However at page 34 of the Local Court Transcript (received as Exhibit 'R-2') the Magistrate states that Mr Pajic did contact 'ND' by telephone at both his home and work telephone numbers.
The Commissioner submitted that it was clear from the evidence that Mr Pajic had lied to the Tribunal and that this was a very concerning matter for the Commissioner of Police. In addition the Commissioner pressed the point that Mr Pajic engages in a pattern of behaviour whereby something happens against him so he raises something in response. The allegations against 'ND', Senior Constable Adba, and now the Solicitor representing the Commissioner at hearing were all evidence of this concerning reactive behaviour by Mr Pajic.
The Commissioner submitted that on 13 July 2017 Mr Pajic first becomes aware of 'ND's reports to Police about the harassment so he makes a complaint about an alleged assault eight months prior in retaliation. In respect of the allegation that the Solicitor representing the Commissioner damaged his car, Mr Pajic had no objective evidence that the Solicitor did scratch his car. It was submitted that when allegations are made against him Mr Pajic makes allegations against others.
The Commissioner noted that no questions were asked of Senior Constable Adba in cross examination about the harassing phone calls, only questions about why they did not pursue the IP address matter and whether he was corrupt.
In written submissions the Commissioner referred to the case law on matters concerning granting an application and the public interest.
The Commissioner submitted that the central principles to be observed in exercising any function under the Firearms Act concerned protecting the public and relying on the case of Petas v Commissioner of Police NSW Police [2013] NSWADT 137 at [36]: 36. …. But the licensing regime is not about punishment. It is about protecting the public. It is about identifying the possible risks to the public, and then making decisions that are consistent with a need to reduce any risks to a minimum.
Reference was also made to the case of Hill v Commissioner of Police New South Wales Police Service [2002] NSWADT 218 at [24] where the Administrative Decisions Tribunal (ADT) discussed public safety in greater detail in the context of the Firearms Act. 24. The critical issue for determination is whether it is in the public interest for Mr Hill to continue to hold a firearms licence. As mandated by the legislation, public safety is to be given paramount consideration in any licensing decision. I concur with the view of Deputy President Hennessy in Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 [at 23] that the discretion to revoke a licence should be exercised in a way that promotes the responsible use of firearms. The legislation does not prescribe the factors to be taken into account in the exercise of this discretion.
Reference was also made to the cases of Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, Director of Public Prosecutions v Smith [1991] 1 VR 63 and the often cited case of Ward v Commissioner of Police New South Wales Police Service [2000] NSWADT 28 in establishing that there should be virtually no risk to public safety in the granting of a licence.
The Commissioner in fairness submitted that the question of risk should not be viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way taking account of all the circumstances, including attitudes, character and prior conduct with an overriding focus on public safety. In this regard the Commissioner relied on the case of Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97 at [64] - [66]. 64. In relation to the Act's emphasis on the overriding need to ensure public safety, reference is usually made to Ward v CoP [2000] NSWADT 28, [28], in which Hennessy DP said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the tribunal could never be totally satisfied that a person would not pose any risk to public safety. Indeed, her Honour could not have been totally satisfied of that, as the applicant had been convicted of an offence of violence and had been the subject of an apprehended violence order. Some other cases to a similar effect are reviewed in Green v CoP [2014] NSWCATAD 59, [72] - [79]. 65. In Webb v CoP [2004] NSWADT 110, for example, Montgomery JM when considering the question of public safety stated that, "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration": [32]. 66. The question of risk is therefore not viewed as requiring an applicant to discharge an almost impossible burden of proving a near-absolute negative, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety.
The Commissioner referred to the earlier AVO matter which was covered in written submission involving a former partner. Reference was made to reports that Mr Pajic had made numerous attempts to follow and contact the ex partner at the time of the ending of the relationship. Other reports of intimidation and threats being made to the victim in the charge matter, as well as a report of white powder being sent to the victim's home and damage to their car. Whilst none of these matters were established Police maintained that Mr Pajic was suspected of involvement in those matters.
Reference was made to the extensive evidence concerning the threats and contact which resulted in the charge and Mr Pajic's continued denial of any involvement in such matters. In closing the Commissioner submitted that the Tribunal is required to look at Mr Pajic's conduct as a whole and in doing so would identify a pattern of intimidating behaviour and threatening conduct as well as an inability to display a level of frankness and cooperation expected of licensees.

Mr Pajic's submissions

Mr Pajic in oral submissions maintained that the OLSC complaint had nothing to do with the surveillance itself, but that in his view 'ND' had dealt with confidential information and disclosed it to a third party.
Mr Pajic said that he was justified in making the complaints and that he was trying to ensure that his 'wife and kids were protected'. He said all he had lawfully tried to do was ensure that there was no more surveillance.
In written submissions Mr Pajic maintained that his character was positive, citing his marriage and two daughters. He submitted that he had demonstrated a level of frankness and co-operation in dealing with his licence application and had passed all of the preliminary steps to obtain a licence such as training and membership of a hunting club.
Mr Pajic maintained in his written submissions that he had been found 'not guilty' of the use carriage service to menace / harass / offend charge and that 'ND' had fabricated the evidence against him.
A submission was made about the Commissioner engaging a solicitor to represent them in these proceedings and that there were errors in the Commissioner's compliance with Tribunal timetables. In addition an issue was raised that the matter had been prepared to be heard in the holiday season. In addition a submission was made that Magistrate / register [sic] should be free of any bias and not influenced by other / respondent's party conclusion.

Consideration

As a preliminary point I note that in respect of Mr Pajic's submission in the paragraph immediately above, no assertion of bias or conflict of interest was explicitly made to the Tribunal which would require consideration of recusal. In the absence of such an application it is difficult to ascertain exactly what Mr Pajic means by that submission, other that a concern that the Tribunal (in dealing with the Commissioner's evidence), might not be fair to him. I find that submission unnecessary and place no weight on it.
I note that whilst not squarely in the decision for review before the Tribunal, the notion of 'fit and proper' is referred to the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond.
The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.
On the notion of public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.
Section 3 of the Firearms Act 1996 provides: 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
It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered.
The often cited cases of Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 were all referred to in the Commissioner's submissions as to public interest.
The case of Director of Public Prosecutions v Smith [1991] 1 VR 63 is also relevant where the Court observed: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of a government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of it members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
That case (Smith) outlines similar views to those expressed in the line of cases above and in particular Comalco Aluminium where the Court observed that the interests of the whole community are matters for the Commissioner's consideration.
When looking at the issue of public interest the Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16. 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: . . . 33. 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. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
I note that the case law indicates that the individual's interests would always be subordinate to the public interest in the issuing of a licence. The case of Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 is relevant on this issue. At paragraph 681 of the Report: The purpose of the reference to 'public interest' is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.
In Toleafoa at paragraph [25], the Appeal Panel said that the public interest: "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".
Again, I note that the body of case law indicates that the discretion is to be applied for the public benefit rather than the individual benefit.
In my view the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.
In applying the discretion for the public benefit I have significant concerns about the pattern of behaviour of Mr Pajic as demonstrated by the evidence relied upon by the Commissioner. In my view having regard to the totality of the evidence, and matters arising since the charge that went to Court, it appears open to the Tribunal to make a finding that Mr Pajic did make the phone calls as referred to in the prosecution brief.
The evidence indicates that on the balance of probabilities when looking at the call records, the timing of the matters involving the investigator as well as the retaliatory behaviour concerning the ACCC complaint, the OLSC complaint and the Police complaints, that Mr Pajic appeared motivated to undermine any actions he perceived were against his position. His somewhat extraordinary behaviour whilst giving evidence under cross examination whereby he accused the Commissioner's Solicitor of committing the crime of malicious damage, with intent, in the absence of any evidence of probative value is most concerning. His position was, as I understood it, you are acting against me in these proceedings so therefore you would always be acting against me. My car was damaged, only someone who was against me would do that. Therefore you must have damaged it. I was unable to understand this allegation of Mr Pajic's beyond that line of reasoning.
Likewise his assertion that a Police Officer would, as a starting point, be involved in corrupt conduct in receiving a financial benefit to investigate and prosecute him on a significant but not extremely serious charge, just doing the bidding of the victim, in the absence of any evidence other than an asserted corrupt motive appears fanciful.
Again I note that there was no evidence to support this very serious allegation and that the only evidence before the Tribunal was to the contrary.
These are therefore significant matters which would prevent Mr Pajic being granted the licence. Whilst he does not have criminal antecedents of any significance, a nil conviction record, and the traffic record relied upon for the refusal was not run against him in the proceedings, in my view the positive and less serious matters should be balanced with the facts and circumstances surrounding the events which have been closely examined during the hearing before the Tribunal.
The Tribunal is more and more often being tasked with determining the balance in respect of the public interest as the sole assessment criteria when it comes to firearms licence reviews. Recently the majority of cases deal with this sole issue of whether the granting of the licence would be in the public interest. Previously fit and proper person grounds were often advanced, sometimes in conjunction with public interest grounds.
In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal recently observed that the 'burden' that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed: 56 It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative. 57 Rather, as stated in Webb at [32] when considering the question of public safety: "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".
In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, that it would not be in the public interest to grant the licence.
Having regard to the cases referred to above in my view it would be contrary to the public interest to grant Mr Pajic the licence and I so find.

Conclusion

Because of the findings that I have made, it is appropriate to affirm the decision of the Commissioner's delegate, being the respondent.
As this is an administrative review matter, it therefore follows that the correct and preferable decision is to affirm the decision of the respondent.
I therefore make the following order:

Orders 1. The decision to refuse the Applicant's Category AB Firearms Licence is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2022

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (4)

Cases Cited (8)