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Cases Cited: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Category: Procedural rulings

Parties: Sebastian James Patrick Papa (Plaintiff)
Commissioner of Police, New South Wales Police Force (Defendant)

Representation: Counsel:
N Simpson with A Edye (Plaintiff)
S De Brennan (Defendant)
Solicitors:
Hartmann & Associates (Plaintiff)
Maddocks Lawyers (Defendant)

File Number(s): 2026/258966

REVISED EX TEMPORE JUDGMENT

1. HIS HONOUR: Pursuant to a summons filed on 22 June 2026, the plaintiff seeks both interlocutory and final relief against the defendant, the Commissioner of Police, New South Wales Police Force (“the Commissioner”). The reason that the plaintiff seeks the relief sought in the summons is that in accordance with decisions made by the Commissioner on 29 April 2026 and then a review decision on 2 June 2026, the plaintiff’s firearm licences have been revoked.

2. The plaintiff is a person who relies on the holding of his firearms licence for the purposes of earning an income. He works as a professional kangaroo harvester and has adduced evidence that, if he does not have the firearms licence, he will suffer a significant loss of income. For example, he says that in March 2026, his income was approximately $17,000. Since his firearms licence has been revoked, the plaintiff has been unable to maintain the supply of the carcasses to the various purchasers of his work. The plaintiff says he normally employs two full-time harvesters and four part-time harvesters who assist in the process.

3. The matter was listed before me today for the purposes of the application for interlocutory relief. The plaintiff seeks an order staying the original decision of the Commissioner dated 29 April 2026, to revoke the plaintiff’s category AB firearms licence as well as a stay of the review decision of the Commissioner dated 2 June 2026, affirming the decision to revoke the plaintiff’s category AB firearms licence. By way of final relief, the plaintiff seeks orders quashing the decisions of the Commissioner.

4. On hearing the application today, Mr Simpson appears with Mr Edye, both of counsel. Mr De Brennan of counsel appears on behalf of the defendant. The defendant opposes the orders sought by way of interlocutory relief and will be opposing the orders sought by way of final relief.

5. In essence, the plaintiff is seeking judicial review of the decisions made by the Commissioner to revoke his licence. It is agreed between the parties that the final hearing will not be a merits review but is a review on a more limited basis.

6. For the purposes of the application today, the plaintiff accepts that he must demonstrate that there is at least a prima facie case for final relief and that the balance of convenience favours the granting of a stay: see Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623; [1968] HCA 1. In other words, the plaintiff must establish that there is a serious question to be tried and that the application is not frivolous or vexatious: see Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [71].

7. The Court has power under s 23 of the Supreme Court Act 1970 (NSW) to make the orders sought by the plaintiff, as well as inherent power to act in the interests of justice. Again, it is not suggested by the Commissioner that I do not have the power to make the order sought by the plaintiff. In support of the application, the plaintiff relies on his own affidavit dated 17 June 2026, as well as an affidavit of Glenn Desmond Kable dated 3 June 2026. The defendant relies on an affidavit of Inspector Paul Anthony Bush dated 2 July 2026.

8. In reality, there is little dispute as to the facts, at least for the purposes of this application. The plaintiff has held a firearms licence for many years. He has no criminal history, although there have been some earlier interactions with the police. On 15 April 2026, the defendant, acting through the Firearms Registry, decided to impose two special conditions on the plaintiff’s category AB Firearms licence. These conditions included a prohibition on the plaintiff from possessing or storing firearms or firearms parts and ammunition at any location where a person known to the plaintiff, named Lenard Kelly, resided. Mr Kelly is in some way related to the plaintiff’s partner.

9. On 21 April 2026, the police attended at the plaintiff’s residence to issue him with the special conditions. They were informed that Mr Kelly no longer resided at the address but had moved to Balranald 12 months earlier. When the plaintiff was informed of the conditions, he reacted adversely. The interaction between the police and the plaintiff was recorded on body-worn video. Although he complied with the police request to surrender his firearms, he engaged in what might be described as somewhat of a diatribe against the police and the system. He was clearly angry and upset at what the police were doing. He made various comments to the effect that if the police were doing their job properly, they would have gained proper assistance from the community in respect of solving an alleged domestic violence murder in Lake Cargelligo as well as espousing what must be viewed as a conspiracy theory about what happened at Bondi in December 2025.

10. The plaintiff made derogatory comments about the police and derogatory comments directed at the community which was the subject of the events in Bondi. He also suggested that it had been part of his work in getting rid of some police who worked in the district (by that I mean only them being moved on, not suggesting in any way any violence was involved) and that there was only one police officer left. Again, I assume he is referring to someone involved in this matter with whom he is unhappy. Having said that, I emphasise he complied with the police orders on the day despite his obvious agitation and concern.

11. After that event, the police made a further decision being a decision to revoke the plaintiff’s category AB firearms licence pursuant to s 24(2)(d) of the Firearms Act 1996 (NSW) and cl 20 of the Firearms Regulations 2017 (NSW). It is apparent from a review of that decision that the police were reliant very much on what was captured on the body-worn footage when they attended on 21 April 2026. The police also referred to an incident in 2019, which resulted in the plaintiff’s licence being revoked, albeit that was temporary, when the plaintiff sought to be argumentative and challenged their authority.

12. The plaintiff then requested a copy of the body-worn video and then requested a review. A review took place on 4 May 2026 and the decision was confirmed. The plaintiff then commenced these proceedings

13. The plaintiff seeks to challenge the decisions on a number of bases, being:

14. The defendant had regard to irrelevant considerations and failed to have regard to relevant considerations in making the decisions;

15. The defendant denied the plaintiff procedural fairness in the way in which decisions were made; and

16. The defendant misapplied the law in its approach to the issue of public safety.

17. In this regard, the plaintiff relies on the statements made in the original decision of 29 April 2026 to the effect that the decision maker was not satisfied that the plaintiff’s possession and use of firearms “would be with virtually no risk to public safety”. The plaintiff submits that there was nothing in the legislation which requires a person such as the plaintiff to establish that there was “virtually no risk to public safety”.

18. The defendant disputes that the plaintiff has established any arguable case for final relief. In particular, the defendant suggests that there could hardly be any suggestion of a failure to afford procedural fairness in circumstances in which the very basis of the defendant’s decision was the conduct of the plaintiff (of which, of course, the plaintiff must have been well aware). Further, the defendant submits that the decision has plainly been made in accordance with the Firearms Act, cl 20 of the Firearms Regulations and disputes the failure to consider relevant information.

19. The underlying principle of the Firearms Act is to confirm that firearm possession and use is a privilege that is conditional on the overriding need to ensure and improve public safety by imposing strict conditions on the possession and use of firearms and promoting the safe and responsible storage and use of firearms. Section 24 of the Firearms Act provides the authority to the Commissioner to revoke a licence. The grounds on which a licence may be revoked are set out in s 24(2) and are very broad, including subs 2(c), being, “if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence” and subs 2(d), being, “for any other reason prescribed by the regulations”. Again, it is not suggested that the Commissioner was acting outside his powers in coming to the decision.

20. Plainly, the decisions were made based on public safety, albeit the plaintiff asserts that the approach to public safety was erroneous as a matter of law. It is only necessary to say that, at least for the purposes of this preliminary hearing, I accept that the plaintiff has established that there is a prima facie case for final relief.

21. I accept that, at least arguably, the test applied by the Commissioner when making the decision was particularly onerous, having regard to the words used. That may be a matter which gives rise to an argument as to an error of law. I also accept, at least having regard to the material before me, there may be an argument about the matters which the Commissioner has considered in coming to the decision. I need not say more about that in this judgment.

22. The real question which arises is whether the balance of convenience favours granting a stay. No doubt public safety is a matter of particular significance in assessing whether an order sought by the plaintiff should be made. There is nothing to suggest other than that the police have made this decision in good faith, having regard to what they consider to be matters of public safety. That of course does not mean that the plaintiff has no right to challenge or that the plaintiff would not be successful but it is plain that the basis of the decision was a concern about the plaintiff’s behaviour when police attended at his property and reference to some earlier behaviour when police had previously sought to revoke his licence.

23. Persons do not have a right to have a firearms licence. As the Firearms Act suggests, it is a privilege. It is also plain that a firearms licence may be revoked on many grounds, one of which is public safety. The question which arises however is, in this case, whether the concern about public safety is such that it outweighs the very significant detriment that the plaintiff will suffer if the order is not made.

24. The plaintiff has held a licence for many years. He uses his licence for the purposes of earning his income. The evidence contained in his affidavit about the income he earns, the people he employs, and his other behaviour has not been the subject of challenge today. As such, I accept that without his licence, he will suffer a very significant detriment. I also accept that other than in respect of that earlier behaviour in 2019 dealing with the earlier problem with revocation, there is nothing which would suggest that the plaintiff has been or is likely to be violent.

25. The behaviour demonstrated on the body-worn video is on one view of a concern. It is a concern because the plaintiff is ranting about inadequacies in the Police Force and seemingly connecting those inadequacies with other events which have occurred in Australia. However, there was nothing in anything said by the plaintiff during his interaction with the police which might be suggestive of any threat of violence on his part or an indication that he is likely to be violent at any stage in the future. The fact that he has a grievance about the attempt of the police to place conditions on his licence is one thing, but it is entirely another thing to then conclude that that grievance leads to an appreciable risk of violence on his part.

26. Nothing I say should be taken as any criticism of the police and the views they have taken, but having found that there may be an arguable case to challenge the decision, the question remains whether the balance of convenience favours the granting of the order, that is, the granting of the temporary stay until such time as this matter is heard.

27. In my view, it does. The plaintiff will suffer a significant detriment if his means of earning an income is taken away from him. In assessing the risk to public safety, I have regard to what is an unblemished record since the plaintiff obtained his firearms licence many years ago and the fact that he willingly cooperated with the police in handing over his guns when asked to do so.

28. The plaintiff’s rant at the police was unnecessary, uncalled for and frankly absurd, but that of itself does not seem to me to be a basis for not making the orders sought in the circumstances which have been put before me. I should also say that I have in mind listing this matter urgently and I will list the matter for hearing on Monday, 17 September 2026. I note that the effect of the order is to stay the revocation of the licence, leaving the police to deal with the other matter raised, that is the conditions. It is a matter between the police and the plaintiff as to whether the police are satisfied of ongoing compliance with the original conditions sought to be imposed.

29. Therefore, I make the following orders:

30. The matter is listed for hearing on 17 September 2026, for 1 day.

31. The decision of the Commissioner of Police dated 29 April 2026 to revoke the plaintiff’s Category AB firearms licence is stayed until 17 September 2026 or further order of the Court.

32. The review decision of the Commissioner of Police dated 2 June 2026 affirming the decision to revoke the plaintiff’s Category AB firearms licence is stayed until 17 September 2026 or further order of the Court.

33. Direct the parties provide chambers with consent orders within 14 days setting out proposed orders for exchange of evidence and preparation for hearing of the matter.

34. Note that both parties agree to the date of listing.

35. Grant liberty to apply on 3 days’ notice.

36. Costs are reserved.

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