The applicant's argument is that the VRO was not made in relation to him. Rather it was made in relation to the Mr Pezzano born in 1994.
The applicant's counsel conceded (appropriately in the Tribunal's opinion) in response to a question from the Tribunal that if the VRO had simply contained the wrong date of birth, then the VRO would still be 'in relation to' the applicant. However, the applicant points out that in this particular matter, the VRO on its face applies to someone with the same name as the applicant and who lives at the same address as the applicant and who was known to both Mr Pezzano and Mr Chiametti. Further the police had originally sought to serve that person with the VRO. It is not the case here that there was a simple error in the form containing for example, a birth date of someone not known to the applicant or someone who was not residing at the address.
The applicant says that it is a question of what is on the face of the VRO which is important and not the subjective belief of Mr Pezzano nor the reasonableness of the belief of Mr Pezzano that it was not him that was bound by the order. The evidence of Mr Pezzano, which is discussed below, was that it is his belief that at most he was accepting service of the VRO on behalf of his cousin.
[2]
The respondent's argument is that an analysis of the circumstances in which the VRO was made, at the interim and final stages, in light of the relevant provisions of the RO Act and 2024 Act, demonstrates that the VRO was made in relation to the applicant for the purposes of reg 6(2)(b) of the Regulations. The respondent refers in particular to the fact that the applicant signed for service of the VRO as the person bound by the VRO with his correct date of birth.
The respondent submits that it would be contrary to the purpose of the RO Act, which it says is quintessentially protective legislation, to leave the applicant for a restraining order unprotected simply because they, or the court, made an error as to the date of birth of the person proposed to be bound by the restraining order.
The respondent also referred the Tribunal to several authorities which support the proposition that although the VRO contained an error, it was valid until it was set aside. The respondent concedes that the correction of the date of birth on the VRO made by the police officer had no legal effect but says that it did not need to as the applicant was already the subject of the VRO.
[3]
The applicant does not argue that the authorities referred to by the respondent are incorrect. Indeed, the applicant's counsel said that she accepted the propositions referred to. However, the applicant's position is that while the order is valid on face, in this case it is valid in relation to another person - being the Mr Pezzano born in 1994.
The Tribunal notes that the respondent itself believed initially that the VRO applied to Mr Pezzano born in 1994 as the police records indicate that a police officer advised the person protected on or about 13 November 2019 that he would need to liaise with the court to have a different person bound nominated on the interim VRO. There is no evidence that this occurred.
The Tribunal notes that the provisions of the RO Act do not require that any date of birth be included. However, in this case, a date of birth was included and it was the date of birth of Mr Pezzano born in 1994.
Submissions were made at the hearing as to whether the applicant would have had standing to seek to amend the VRO. The applicant's counsel also submitted that no prosecution could succeed for breach of the VRO in circumstances where the identity of the person bound by the VRO could not be proved beyond reasonable doubt. In the Tribunal's view it is not necessary to consider these issues given the conclusion it has reached below about the order on its face applying to the Mr Pezzano born in 1994.
Mr Pezzano gave evidence at the hearing as to his understanding of whom the VRO applied to. His evidence at the hearing was that he believed the VRO applied to the Mr Pezzano born in 1994 (his cousin) who resided at the same address and that is why he accepted service. He said that had he believed it was intended to apply to him he would have sought to challenge it, just as he challenged the criminal charge.
We have asked ourselves if the subjective belief of the applicant as to whether the VRO was made in relation to him is relevant? Further, we have asked ourselves whether the Tribunal should consider the plausibility of Mr Pezzano's evidence that he was simply accepting service on behalf of his cousin noting that at the time-of-service he had recently been convicted of the criminal charge and knew that Mr Chiametti was the protected person?
In the Tribunal's view, in the highly unusual circumstances of this case, the subjective belief of the applicant is not of primary relevance and neither is the reasonableness of his belief. Further, the fact that the applicant accepted service of the order is one relevant consideration to take into account, but it is not determinative.
The question for the Tribunal is whether the VRO was, in fact, made in relation to the applicant.
The Tribunal accepts the applicant's submission that this case differs from a perhaps more usual case where there is an error in a VRO such as a wrong date of birth or misspelled name. The VRO in this matter correctly identifies a person with the date of birth which is on the VRO living at that address with the same name who is not the applicant.
It is not a question as to whether or not on the balance of probabilities the Tribunal is of the view the VRO was intended to apply to Mr Pezzano, or whether we consider his evidence as to whether he was bound by the order is plausible in all of the circumstances. The issue is simply whether the order as made applied to Mr Pezzano? In the highly unusual circumstances of this case, we are unable to be satisfied that the VRO was made in relation to the applicant but rather it was made in relation to Mr Pezzano born in 1994.
We therefore find that Mr Pezzano is not a disqualified person under s 9(1) of the 2024 Act and is not automatically disqualified from holding a firearms authority under the 2024 Act. This does not mean though that the respondent cannot take into account all relevant information, including the circumstances of the criminal charge, when determining whether the applicant is a fit and proper person to hold a firearms licence, including the full reasons for decision of the Supreme Court in Pezzano v The State of Western Australia.
It is for the Commissioner to determine whether or not the applicant is a fit and proper person to hold a firearms licence, even though he was acquitted of one charge and his conviction was overturned in relation to the other charge, based on all of the relevant circumstances of the case. That is a matter for the Commissioner.
[4]
The application for review is allowed.
The decision of the respondent is set aside and substituted with a decision that the applicant is not a disqualified person.
[5]
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
Legislation Cited (2)
Orders Act 1997
Administrative Tribunal Act 2004
Cases Cited (3)
PEZZANO and COMMISSIONER OF POLICE [2026] WASAT 26 (27 March 2026)