Ryan v Commissioner of Police, NSW Police Force

NCAT Appeal Panel|2023-12-15

Introduction

The Appellant had been issued with a category AB licence on 12 March 2018 for the stated reason of recreational hunting/vermin control. The Respondent's position was that the licence had been issued on the basis of his having permission to shoot at a rural property at Bellingen. The Appellant had nominated his Ingleside property (the Property) on his application as the land on which he sought to shoot vermin, but that section of his application had been crossed out, without his knowledge, according to the Appellant. The Respondent did not dispute that the Appellant held a genuine belief that he was authorised to shoot on his Ingleside property.
On 7 August 2021, Police received a complaint that sounds of shooting had been heard from the Property. The Police attended the Property and spoke to the Appellant, who said that he used his firearms to manage the population of rabbits on his property.
The Appellant's licence was then suspended on 17 August 2021. On 24 August 2022, a special condition was placed on his licence in light of the incident described above and the location of the Property. The condition prohibited the Appellant from possessing, using, or storing firearms, firearms parts or ammunition on the Property.
The placing of special conditions on firearms licences is governed by s 19(1) of the Firearms Act 1996 which provides that 'A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose'.
The appellant applied for internal review and the Respondent issued a decision on 8 February 2023 which substituted a more limited condition prohibiting only the use of firearms on the property. Reference was made to the fact that Police attending the Property had concluded that it was not suitable for firearms use because of its size and its proximity to other properties and consequently presented a risk to public safety.
The Appellant's application for review of this decision in the Tribunal resulted in the Tribunal affirming the decision under review on 11 July 2023 (the Decision). The Appellant appeals from this Decision.

The evidence

The Tribunal summarised the evidence before it at [9] - [19] as follows: 9 The respondent called no oral evidence (subject to one question asked at my request which is referred to below), instead relying on the documentary evidence, including the s 58 documents (exhibits R1 and R2). 10 At the hearing the applicant adopted his signed statement dated 16 May 2023 which stated that, apart from the reports alleging that he was firing a firearm through trees on his property, he agreed with the documents contained in the s 58 documents and on the recorded footage concerning the police investigation of those allegations. 11 He stated that exhibit R1, pp 23 - 24, showed his P661 genuine reason form, which he filled out and signed on 19 November 2017. In the section headed "Permission from owner or occupier of rural land" he had filled out that section so as to be authorized to shoot on his property. 12 As a result of the police investigation, it was brought to his attention that that portion of the form had been crossed out and appeared to have been initialled "LOA". He had not crossed out that section of the form and to his knowledge he had been authorized to shoot on his property at the time the police were called there. 13 During the time he had been shooting on his property to control vermin and to sight in his firearms, no rounds of fired ammunition had left the property and no persons had been struck by any ammunition. There is a large rabbit population that comes onto his property, especially from recent road construction, and that also brings foxes with it. He needed to be able to use his firearms to control those vermin. 14 In oral evidence at the hearing the applicant said the property measured 5½ acres (2.2 ha) and contended that while he understood the respondent's concerns, a .22 bullet would only travel outside the property if there had been unsafe use. Safety depended on proper use. He used only a .22 on that property, and the force of a bullet of that calibre dropped by half over 100 yards. The closest road to where he had been sighting the rifle was about 220 m away. 15 When he was zeroing (sighting) a rifle, he used a concrete barrier measuring 600 X 600mm X 1.2 m, and behind that there was a berm 2 m high, and there were two 8 ft shipping containers behind that. He had also done vermin control 6 shooting at the request of neighbours on their properties. His own property measures 5½ acres, and the Firearms Registry had said that the minimum size for a licence based on vermin control was 5 acres. He had a right to protect his property, and rabbits had been pushed away from bushland because of work on Mona Vale Road. After the rabbits came the predators, and he was seeing foxes the size of dogs. 16 The Firearms Registry had removed the licence condition following representations by his lawyer. As the condition had been removed, he could have simply done nothing and continued as before, but he wanted clarification. 17 Cross-examined by Mr Pobrezny, he said the roadworks had begun in 2018 or 2019. The rabbits and foxes were now much worse. He acknowledged that an inadvertent error was possible, but pointed out that the berm measured 40 feet by 40 feet. Vermin do move, but in accordance with ethical hunting standards, he did not attempt a shot at a moving target as the risk of wounding the creature was greater. Exhibit R3 annexure A showed his shooting position and the safety backstops. 18 Asked whether he could use a smaller calibre shotgun instead of a rifle, he expressed doubts, saying that he could be more accurate with a .22 than with a shotgun. In a controlled space, his accuracy would be better, and he preferred to use a .22 for vermin because it was safer and quieter. 19 At that point I asked Mr T P Berry, who prepared the respondent's expert certificate, if he had prepared any range estimates for shotgun rounds, as none were mentioned in exhibit R5. Mr Berry pointed out correctly that such information was given in his expert certificate (exhibit R4).

The Tribunal's reasons

The Tribunal referred to the evidence as to the effective range of certain firearms, being the distance at which a projectile is expected to be useful for its intended purpose: [37] - [39].
The Tribunal then referred to the nature of the Appellant's Ingleside property at [41] - [43] as follows: 41 The applicant's Ingleside property is long and narrow, being approximately 491 m long and 79 m wide at its widest point. It is shaped roughly like a cricket bat, the handle being the driveway to the public road and the shooting position being located approximately where the maker's name would be. 42 Immediately to the north and south there are a number of buildings and other structures. It is bounded on the west by a public road, and immediately to the west of that road is Ku-ring-gai Chase National Park. Each of the five rifles tested were shown to have effective ranges greater than the maximum width of the property, even the shortest effective range, the 182.8 metres for the .357 Magnum and the .22 would encroach onto the private and public land adjoining the property. The greatest affective range of the 3914.4 metres, would cover a large number of adjoining properties. The respondent contended that this constituted a real and appreciable risk to public safety. 43 The greatest maximum range, 3547.8 m, would significantly encroach on Pittwater, Mona Vale, Ingleside and Ku-ring-gai Chase National Park. The respondent submitted that that constituted a real and appreciable risk as 12 annexure K of Mr Bush's affidavit (exhibit R3) showed a large number of buildings and structures in those suburbs. The respondent submitted that the annexures to the Bush affidavit provided striking evidence of the major risks associated with firearm use on the property and underscored the highly inappropriate nature of the property for shooting. The respondent added that the potential for ricochet increased the risk to public safety.
The Tribunal described the nature of the Appellant's licence at [47] - [49] as follows: 47 The event report stated that after his licence was suspended on public interest grounds, the applicant reapplied for his licence, which was returned with a letter of authority to shoot on a property at Bellingen, and was approved on that basis. "On the basis of this", the report continued, "it does not appear on basic information that the registry has approved him to shoot on the Ingleside property". Investigating police also found that one of the complainant's allegations, that he saw the applicant shooting from his balcony at trees, was "impossible" (exhibit R1, p 12). The report also noted that on 14 February 2023 police returned his firearms to Mr Ryan after his suspension was lifted and the special condition removed. 48 It was not disputed that the applicant genuinely believed that he had been authorized to shoot on the property. He had filled in the section of his genuine reason form certifying that he was the owner or occupier of rural land and had a special need for a category B firearm to control foxes, rabbits and feral cats. That section had been crossed out, however, with the annotation "LOA", the meaning of which was not apparent. 49 The applicant testified that the section was crossed out without his knowledge and that in his interaction with the firearms registry officer, she had said only that his 5½ acre property exceeded the 5-acre minimum requirement for the use of a .22 on the property. His unchallenged evidence on that point may suggest that some kind of misunderstanding did occur. Nevertheless, the reality is that he was not authorized to shoot on his Ingleside property.
The Tribunal came to the view that the Appellant was a fit and proper person to hold a firearms licence and that it was not in dispute that the Property is classified as rural land: [50].
The Tribunal's concern related to some aspects of the Property as follows at [51] - [58]: 51 Even so, some aspects of the property cause concern. As was noted above, it is long and narrow, measuring only 79 m at its widest point. He has neighbours on both sides, and judging by exhibit R3, annexure A, their houses and other buildings are almost adjacent to his firing position and appear to be only some 10 m and 20 m from the boundary respectively, well within the 182.8 m effective range of a .22. He stated on the police body worn video (BWV) footage that he had canvassed all the nearby residents and once apprised of the facts, all but the putative complainant had no objection to his using firearms on the land. There is no corroboration of that assertion, however, nor of the applicant's claim that he knows the identity of the unnamed complainant, who he describes in uncomplimentary terms, including that he is a disgruntled ex-employee. Nor is there any way of verifying his claim that there has been no instance where one of his projectiles has travelled outside the property. 52 The complainant said that the sound of gunshots so close to his own property caused him fear, and it is quite plausible that the sound of shooting at such relatively close quarters could reasonably give rise to concern on the part of neighbours, especially if high velocity (noisier) .22 rounds were in use. Given the applicant's safety-conscious attitude to firearms use, and the extensive precautions he has taken, the risk to public safety is probably minimal. Nevertheless, while public safety is the primary consideration, it is not the only one. Another is the legitimate safety concerns of neighbours hearing the sounds of shooting at relatively close quarters, especially if at some future time there were children living in the area. 53 As the respondent pointed out, Mr Ryan sometimes has other licensed persons using his rifle while he is sighting it, as in fact happened at the time of the 7 15 August 2021 incident. Such arrangements could increase the risk of a stray shot. The applicant's line of argument based on the safety precautions taken by the individual shooter cannot, therefore, be accorded decisive weight. Whether a different view might be taken if his sighting range were situated in a different part of the property, further away from other habitations, can on the evidence before the tribunal be only a matter of speculation. 54 The applicant's second line of argument was that he needed to be able to shoot on the property in order to control the influx of vermin and ferals such as rabbits and foxes, that had increased since the construction work on Mona Vale Road had driven them out. He said some of the foxes had grown to the size of dogs and represented a threat to his own dogs. The respondent contended that there were other ways in which vermin and ferals could be controlled, such as by poison or traps, and that as Mr Ryan was not a primary producer, he had no special need to use firearms for the purpose. 55 It is usually considered that, other things being equal, shooting is a more humane method of controlling vermin and ferals than poisoning, which can destroy native fauna, or traps, which can be inhumane. And although the applicant is not a primary producer, he lives on rural land and has a legitimate interest in controlling the depredations of unwanted pests. But again, the shape and location of the Ingleside property presents safety problems. 56 Given the shape of the property, a bullet ricocheting from a stone, for example, could well reach neighbouring residences. Mr Ryan was adamant that he never carries a rifle in battery and does not chamber a round until he has seen the target through his telescopic sight. He never attempts to shoot a moving target. If he is not sure that he can do so safely, he does not take the shot. 57 All that is no doubt true, but the risk of an accidental firing while hunting cannot be regarded as fanciful, and in such relatively close proximity to neighbouring residences could present a non-trivial risk, as understood in Webb v Commissioner of Police, NSW Police Force [2004] NSWADT 110. At the hearing I raised hypothetically whether a small calibre, less powerful shotgun 16 (such as a 410 gauge) firing pellets might present less of a risk (assuming it were otherwise permissible and in the public interest), but the applicant was not interested in that possibility as he preferred the greater accuracy of a .22. Further, there was no evidence before the tribunal about the performance characteristics of a 410. The question was therefore nugatory and was not pursued. 58 The s 19(1) power to impose conditions is discretionary. The condition imposed goes no further than is required for the protection of the public interest, as that criterion was understood in Wallin (No 2). In light of all the evidence, I find that it would at present not be in the public interest to lift the condition and that the correct and preferable decision is to affirm the decision under review.

The Appeal

Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides that an internal appeal may be made 'as of right on any question of law, or with the leave of the Appeal Panel on any other grounds'. Accordingly, where a ground of appeal relies on an error fact only, leave to appeal is required.
The general principles governing whether or not leave to appeal should be granted under s 80(2)(b) has been stated by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [84].
At the hearing of the application, the Appellant was unrepresented. The Appellant gave oral evidence and neither party introduced oral evidence from other witnesses.
At the hearing of the appeal, the Appellant was represented by Mr Lowe of Counsel. The Appellant relied upon an amended Notice of Appeal filed 27 November 2023. The Appellant asserted that each of the grounds of appeal involve questions of law but, at the hearing, sought leave if we are of the view that a ground does not involve a question of law.

Ground 1: Failure to evaluate improper opinion evidence

Appellant's submissions

The Appellant referred to the affidavit of Mr Paul Bush, dated 8 June 2023 and to the fact that this affidavit was relied upon by the Tribunal.
Mr Bush is a Police Inspector and solicitor in the office of the police general Counsel. He is trained in the use of operational firearms. The Appellant referred to paragraph 17 of Mr Bush's affidavit as follows: [The] maps marked with the effective and maximum ranges of the cartridges utilised in the firearms owned by the Applicant demonstrate the risk to public safety if the Applicant were permitted to shoot on 20 Chiltern Road, Ingleside because there is always a real possibility of human error and unintentional discharge when firearms are being used. In other words, I consider that Annexures F to M underscore the real risk that, in using his firearm on 20 Chiltern Road, Ingleside, the Applicant may accidentally or unintentionally cause bullets to travel significant distances into the suburbs surrounding his property.
The Appellant then referred to the fact that the Tribunal in summarising the evidence before it provided a summary at [35] of Mr Bush's evidence at [17] of his affidavit. The Appellant then referred to paragraph [57] of the Tribunal's Decision which we have already quoted above. The complaint made by the Appellant was that 'at no stage did the Tribunal purport to evaluate the probative value or weight to be given to, Mr Bush's evidence, or consider whether he was qualified to give opinion evidence about the risk of accidental discharge of firearms which was a dispositive issue in the review'.
The Appellant contended that Mr Bush purported to provide expert opinion evidence that was not based on his specialised knowledge. It was no more than an expression of subjective belief or unsupported speculation.
The Appellant accepted that Mr Bush was not cross-examined, and no objection was made to his affidavit. However, according to the Appellant, it was incumbent upon the Tribunal to determine for itself what weight to give to the evidence and even though it was freed from the rules of evidence, the Tribunal must still consider whether the material before it should in fact be given any weight.
The Appellant summarised the Tribunal's error as being twofold: Firstly, the Tribunal abdicated its statutory task by failure to evaluate and weigh critical evidence for itself, and secondly, the Tribunal unfairly relied upon 'expert' opinion from an individual who did not have specialised knowledge on the particular issue and whose opinions were predicated upon speculation.

Respondent's submissions

The Respondent submitted that the first ground of appeal does not raise a question of law. The Respondent then submitted that this ground of appeal in fact involved two grounds: whether the Tribunal unfairly relied upon the opinions from Mr Bush who is speculating beyond his area expertise and, secondly, whether the Tribunal had abdicated its statutory task by not for itself determining what weight should be given to Mr Bush's evidence.
In respect of the first contention, the Respondent submitted that Mr Bush's affidavit was not read as expert evidence but as lay evidence of a person with firearms training and experience.
The Respondent contended that given Mr Bush's experience, his opinions as to the risk of human error and unintentional discharge had probative value and were relevant.
Accordingly, given its relevance and that no objection was taken to it and no submissions were made by the Appellant about the weight it should be afforded by the Tribunal, it was not unfair for the Tribunal to rely upon it.
In respect of the Appellant's second contention, the Respondent submitted the Tribunal did not 'abdicate its statutory task' by failing to determine for itself what weight should be given to the evidence.
According to the Respondent, the true statutory task facing the Tribunal was not to draw inferences or jump to conclusions which the available material did not adequately support. In other words, even in absence of objection to evidence, the Tribunal cannot take from material that is of no probative value the conclusion which that material does not adequately support.
The Respondent submitted that in this regard the Bush evidence was rationally probative: it contained opinion evidence from a deponent with experience in firearms use and possession as to what are, essentially, common sense propositions, namely, that shooting at a moving target increases the risk that a discharged round could travel astray and that there is always a real possibility for human error or unintentional discharge when firearms are being used.
As this evidence was rational and probative of the issue in dispute, the Tribunal made no error in relying on the evidence in the Bush affidavit.

Consideration

We agree with the Respondent's submissions.
The ground of appeal as it is expressed is a 'failure to evaluate improper opinion evidence'.
In our view, in circumstances where the Tribunal is not bound by the rules of evidence (see NCAT Act, s 38(2)) a contention that the Tribunal was wrong to rely upon opinion evidence that was put before it without objection or to place weight upon such evidence, does not raise a question of law.
As the amended Notice of Appeal purported to be an appeal on questions of law alone, it is necessary that the Notice of Appeal identify precisely the particular questions of law sought to be raised: see Ferella v Chief Commissioner State Revenue [2014] NSWCA 378 at [22], see also Thomas and Naaz Pty Ltd (AZN101491703) v Chief Commissioner of State Revenue [2023] NSWCATAP 220 at [58] - [59].
In the absence of leave being sought and granted by the Appeal Panel, the Appeal Panel has no jurisdiction to deal with the ground of appeal. This is enough to dispose of this ground of appeal, subject to what we say in the following paragraphs.
In the event that we are wrong as to whether or not this constitutes a question of law, we will consider whether or not the Tribunal erred in the manner asserted by the Appellant.
In our view, in considering this question it is important to bear in mind the nature of the evidence given by Mr Bush.
Mr Bush annexed to his affidavit a number of maps of the Property and the surrounding area marked with the effective and maximum ranges of the cartridges utilised in the firearms owned by the Appellant: see Annexures A - K to Mr Bush's affidavit. The effective and maximum ranges of the cartridges utilised in the firearms owned by the Appellant was evidence provided by another expert, Mr Perry in his report. No objection was made to these ranges provided by Mr Perry at first instance or on appeal.
It is in this context that Mr Bush provides what the Appellant asserts is an expert's opinion at paragraph 17 of his affidavit as to the risk of public safety.
In our view, the statement of Mr Bush at [17] is no more than the statement of the obvious or what flows as a matter of common sense. It is in the nature of a submission or as the Respondent put it lay opinion evidence, rather than any true expert opinion evidence.
The Tribunal at [35], merely summarises the statement of Mr Bush as to risk to public safety at [17]. Later in the Decision at [57], the Tribunal comes to the conclusion that the risk of an accidental firing while hunting could not be regarded 'as fanciful and in such relatively close proximity to neighbouring residences could present a non-trivial risk'. The Tribunal does not expressly refer to Mr Bush's view or purport to be relying on Mr Bush's view.
It seems tolerably clear to us that the Tribunal noted the statement in Mr Bush's affidavit but came to its own conclusion based upon the maps, the evidence from Mr Perry and the shape of the Property in coming to its ultimate conclusion.
At most, Mr Bush's statement at [17] of his affidavit merely formed a background or summary of the Police's contention which the Tribunal took into account. We see no error in this approach of the Tribunal. That the Tribunal received the evidence in circumstances where the Tribunal is not bound by the evidence, where no objection was taken to it, and no submissions were made by the Appellant about the weight it should be afforded by the Tribunal, we fail to see how it could be unfair or wrong for the Tribunal to pay regard to it.
In our view, and fully allowing for the proposition that the Tribunal has some independent inquisitorial role in assessing the evidence before it, the Tribunal did not err in failing to expressly state the extent to which it placed any reliance on paragraph [17] of Mr Bush's affidavit.
This is particularly so when in our view it is clear that the Tribunal made its own assessment of the risk to the public based upon the core facts before it - namely, the ranges of the projectiles in question and the shape of the Property..
Accordingly, we reject this ground of appeal.

Ground 2: Denial of procedural fairness - reasoning not open on the evidence and lacked a proper evidentiary foundation

Appellant's submissions

The submission of the Appellant focused upon the statement of the Tribunal at [53] which we have quoted above that the fact that Mr Ryan has other licenced persons using his rifle while he is sighting 'could increase the risk of a stray shot' and that accordingly the Appellant's argument based upon the safety precautions he takes cannot be given decisive weight.
The Appellant contended that he was denied procedural fairness in this conclusion as the issue was not raised with the Appellant in cross-examination. The Appellant submitted that for the Respondent to make the submission that the Appellant, not being the only person who shoots on the Property is relevant to safety should have been put to the Appellant.
Secondly, the Appellant contended that the Tribunal's statement that 'sometimes other licenced persons' fires the Appellants rifle on the property was not open on the evidence as the evidence was confined to one other person, Mr Tall, having fired the rifle on the Property.

Respondent's submissions

The Respondent submitted that this ground does not raise a question of law and leave to appeal is required.
Secondly, the Respondent contended that the Appellant was not denied procedural fairness because: 1. The Respondent made oral closing submissions prior to the Appellant's closing submissions and therefore the Appellant had the opportunity to respond to the arguments advanced by the Respondent; 2. The evidence that another person had shot on the property was not new as the s 58 material contained this evidence and hence the Appellant knew that this evidence was before the Tribunal. 3. Thirdly, in respect of the Tribunal at [53] using the plural noun 'persons', in context, it was clear that the Tribunal was aware that the evidence extended only to one other person shooting on the Property. 4. The looseness in the language used by the Tribunal should not be a basis for overturning the Tribunal's decision.

Consideration

We are prepared to accept that whether or not the Appellant was afforded procedural fairness does raise a question of law: Prendergast v Western Murray Irrigation Limited [2015] NSWCATAP 69 at [13].
The Appellant contends that he was denied procedural fairness by not being cross examined as to the proposition that the risk to public safety was enhanced by the practice of the Appellant of allowing other shooters to shoot his rifle on his property.The obligation to cross-examine a party giving oral evidence in order to afford that party procedural fairness, in the context of the NCAT Act was discussed by the Appeal Panel in Bilanenko v Commissioner of Police [2022] NSWCATAP 279 at [14] - [22], [25]. 14 We accept the proposition, which seemed not to be disputed by the parties, that strictly the rule in Browne v Dunn does not apply to proceedings before the Tribunal: see Twentymen v Secretary, Department of Social Services [2018] FCA 1892 at [77] (Twentymen) and see s 38(2) of the NCAT Act. 15 We further note that it was stated by Wigney J in Twentymen that the 'preferable approach is to address any issue arising from the failure to cross-examine a witness by reference to the principles of procedural fairness, without reference to the rule in Browne v Dunn': at [78]. 16 The Appellant was put on notice of the dishonesty contention in the Complaint in writing and then directly responded by way of evidence in reply to that contention. 17 In our view, as the Appellant was given the adverse information and the opportunity to respond to it, it cannot be said there was some procedural unfairness or 'practical injustice' in not being cross-examined on a point that he had addressed in his reply evidence. 18 In this regard, with respect, we agree with the statements of the Full Federal Court in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Sullivan) where the Court found that first, administrative decision-makers bound by the common law rules of natural justice or procedural fairness are not required in all circumstances to permit cross-examination (see O'Rourke v Miller [1985] HCA 24; (1985) 156 CLR 342) and, second, failure to cross-examine was no denial of procedural fairness because the applicant had notice of the statements of the witnesses and was afforded, prior to the hearing, with the inferences proposed to be drawn from the witnesses' statements. 19 Mr Higgins, of Counsel, who appeared for the Appellant, submitted that Sullivan should be distinguished on the basis that in the Commonwealth sphere the relevant issue was that of jurisdictional error as opposed to being an error of law that concerns the state jurisdiction. 20 We do not agree with this submission. Consideration of the reasoning in Sullivan and the authorities relied upon such as Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSW LR 1 at [50] (see Sullivan at [50] per Logan J) demonstrates that the Court was speaking generally in terms of a failure to afford procedural fairness flowing from the equivalent statutory provisions to section 38 of the NCAT Act. 21 We also note that in NSW's cases such as Scalise v Bezzina [2003] NSWCA 362 at [98]; West v Mead [2003] NSWSC 161 at [91]-[99] and Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294 at [140], [143] and [144] it has been started that the rule in Browne v Dunn does not mandate the proposition that matters must be put to witnesses when pre-trial preparation means sufficient and adequate notice has been given with an opportunity to respond. 22 Given that the Appellant in his statements in reply dealt specifically with the allegation of dishonesty there can be no doubt that he was on notice fairly of the case which it was proposed to make against him such that there was no breach in procedural fairness in a failure to be cross-examined on the subject. … 25 Further, we note and apply what was said by the Appeal Panel in Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99 at [31] and [32] where it was emphasised that: 'cross-examination is not an essential element of an oral hearing, nor is there a rigid rule that fairness always requires cross-examination to be admitted in administrative hearings…It is wholly within the power of the Tribunal to dispense with cross-examination if it thinks fit, provided it conforms to the rules of procedural fairness.'
In our view, there was no denial of procedural fairness for essentially three reasons.
First, the Appellant was on notice by reason of the s 58 material that evidence of another shooter being allowed to use the Appellant's rifle on the property was part of the material that was being placed before the Tribunal by the Respondent as being relevant to the Respondent's case. Accordingly, the Appellant had the opportunity to respond to that evidence such as giving context to or elaboration on the circumstances in which the Appellant would permit another person to shoot his rifle on his property.
Secondly, the Appellant, before the hearing concluded, heard the submission from the Respondent that the fact that another person, Mr Tall, also used the Appellant's firearm on the Property undermined to some extent the Appellant's reliance on his own safety conscious approach of firearms. He had the opportunity to make submissions in reply and to give evidence in support of this evidence if felt this to be required.
Thirdly, the conclusion of the Tribunal at [53] that 'such arrangements could increase the risk of a stray shot' is clearly made out on the undisputed evidence before the Tribunal.
Accordingly, we do not think the Appellant was denied procedural fairness.
The next contention put forward by the Appellant in this ground is that the Tribunal erred in stating that 'sometimes other licenced persons' use his rifle while he is sighting it was not open on the evidence or was made without any evidentiary support.
We are prepared to accept that this does raise a question of law.
We also accept, as conceded by the Respondent, that there was no evidence before the Tribunal that the Appellant had in the past allowed anyone other than Mr Tall to use his rifle while he is sighting it.
Nevertheless, we agree with the submission of the Respondent that taking into account the context, the evidence before the Tribunal and the submission of the Respondent, which only dealt with the case of Mr Tall, that the better view is that the use of the plural noun 'persons' was simply a looseness of language, intending to mean that there was the possibility, on the evidence. that Mr Ryan may allow 'persons' to fire his rifle on the Property or that it was simply a transcription mistake.
The Appeal Panel should not read the reasons of the Tribunal in a manner that is 'attuned to the perception' of error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30] - [31]. Further, as the High Court made clear in that decision (referring to Collector of Customs v Pozzolanic (1993) 43 FLR 280 at [30]) that review of an administrative decision 'should not be concerned with looseness of the language … nor with unhappy phrasings of the reasons of an administrative decision maker'.
Even if the Tribunal misunderstood the evidence, the ultimate conclusion of the Tribunal that the Appellant's practice of letting his rifle be used by others on the Property 'could increase the risk of a stray shot' is a conclusion fairly available from the evidence. Hence if there was any misunderstanding of the evidence by the Tribunal, which we do not accept, we fail to see how it had any material impact on the ultimate result of the Tribunal.
Accordingly, we reject this ground of appeal.

Ground 3: The Tribunal failed to consider whether the complainant was genuine and thereby failed to complete its statutory task

Appellant's submissions

The Appellant referred to the Respondent's submission that a complaint by a member of the public about the discharge of a firearm by the Appellant demonstrates that the Appellant's shooting could not be considered harmless as it had in fact caused fear to a member of the public. This submission of the Respondent referred to the fact that on 7 August 2021 an unnamed person complained to the police about the sounds of shooting and that it had caused the complainant to be fearful.
The Appellant submitted at the Tribunal hearing that the complainant was not fearful, he was just an 'opportunist looking to damage me and my reputation'.
The Appellant submitted on appeal that accordingly there was a material issue raised in the proceedings as to whether or not the complainant was genuine or rather was motivated by a personal vendetta against the Appellant. The Appellant submitted that the Tribunal never resolved this issue on the balance of probabilities and that it was an error of law to fail to consider and decide a substantial, clearly articulated argument made by the Appellant to the effect that never has anyone ever been fearful of their safety consequent upon the use of his firearm.
Alternatively, the Appellant submitted that the failure to deal with this issue amounted to a failure to give adequate reasons: see s 62(3) of the NCAT Act and the requirement that any statement of reasons must set out the findings on material questions of fact, referring to the evidence or other material in which those findings were based.
The Appellant referred to the statement by the Tribunal that the Appellant's contention in this regard was uncorroborated. The Appellant submitted, however, that there was no finding that the Appellant's evidence was false or unreliable or that it should not be accepted.
Also, the lack of corroboration of the Appellant's claim was not determinative of the issue.

Respondent's submissions

The Respondent contended that this ground of appeal does not raise a question of law.
The Respondent refers to the fact that a partially redacted statement from the complainant provided to the police on 16 August 2022 in relation to the 7 August 2021 incident was before the Tribunal in the s 58 material (the complainant's statement). Accordingly, the Tribunal did have before it the statement, promised by the complainant to be true, of the circumstances surrounding the complainant's report to police on 7 August 2021.
The Respondent accepted that the identity of the complainant and other identifying features were redacted in the complainant's statement and the police event report. The Respondent referred to the fact that at no stage in the proceedings did the Appellant summons the Respondent for the identity of the complainant. The complainant told police that they were fearful that the Appellant was using his firearm so close to the complainant's property.
The Respondent referred to paragraph [52] of the Tribunal's reasons where the Tribunal accepted that the complainant was fearful of the Appellant's use of the firearm on the property. The Appellant contends that this finding was open on the evidence on the basis of the complainant's statement and the event report, recorded by the police, of what the complainant told the police.
Further, it was reasonable for the Tribunal to discount the Appellant's assertion that the complainant was 'an opportunist looking to damage me and my reputation' given that there was no evidence that the Appellant knew the identity of the complainant.
Accordingly, it was open to the Tribunal to reject as having no evidentiary basis the Appellant's assertion that nobody has ever been fearful of his use of firearms on the property.

Consideration

We accept that the question as to whether or not the Tribunal failed to consider a substantial, clearly articulated argument or a material issue does raise a question of law: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at [24]; Whipps v Caravan & RV Central Pty Ltd [2017] NSWCATAP 163 at [27].
Alternatively, we accept that the question as to whether or not the failure of the Tribunal to give adequate reasons raises a question of law: see Donoghoe v Compass Housing Services [2015] NSWCATAP 97 at [53] and Prendergast v Western Murray Irrigation Limited [2015] NSWCATAP 69 at [13].
The issue in question was dealt with by the Tribunal at [51] - [52] as follows: 51 Even so, some aspects of the property cause concern. As was noted above, it is long and narrow, measuring only 79 m at its widest point. He has neighbours on both sides, and judging by exhibit R3, annexure A, their houses and other buildings are almost adjacent to his firing position and appear to be only some 10 m and 20 m from the boundary respectively, well within the 182.8 m effective range of a .22. He stated on the police body worn video (BWV) footage that he had canvassed all the nearby residents and once apprised of the facts, all but the putative complainant had no objection to his using firearms on the land. There is no corroboration of that assertion, however, nor of the applicant's claim that he knows the identity of the unnamed complainant, who he describes in uncomplimentary terms, including that he is a disgruntled ex-employee. Nor is there any way of verifying his claim that there has been no instance where one of his projectiles has travelled outside the property. 52 The complainant said that the sound of gunshots so close to his own property caused him fear, and it is quite plausible that the sound of shooting at such relatively close quarters could reasonably give rise to concern on the part of neighbours, especially if high velocity (noisier) .22 rounds were in use. Given the applicant's safety-conscious attitude to firearms use, and the extensive precautions he has taken, the risk to public safety is probably minimal. Nevertheless, while public safety is the primary consideration, it is not the only one. Another is the legitimate safety concerns of neighbours hearing the sounds of shooting at relatively close quarters, especially if at some future time there were children living in the area.
In our view, a fair reading of the Tribunal's reasons demonstrate that the Appellant's ground of appeal is misconceived. The substance of the findings and conclusions of the Tribunal were as follows: 1. There are a number of nearby residents to the property in question; 2. The Appellant asserted without corroboration that he knew the identity of the unnamed complainant and he believed he was not genuine in his complaint but is carrying out a vendetta against him as a disgruntled ex-employee; 3. There was evidence before the Tribunal that sounds of gunshots caused the complainant to be fearful; 4. Such evidence is plausible, but no finding one way or another of the ultimate genuineness of the complaint was made by the Tribunal; and 5. It was reasonable to assume that neighbours hearing the sound of shooting at relatively close quarters could reasonably give rise to concern on the part of neighbours, generally, who may have legitimate safety concerns arising out of hearing the sounds of such shootings, especially if at some future time there were children living in the area.
Accordingly, it seems clear to us that the Tribunal took the question of 'legitimate safety concern of neighbours' at a generalised level detached from the limited evidence before it of the current view of some neighbours. The Tribunal was not prepared on the basis of the limited evidence before it to come to any real conclusion one way or another as to whether or not any of the current neighbours had genuine concerns arising from hearing gun shots close to their properties.
The concerns of the Tribunal were based upon the fact that it would be reasonable and plausible for neighbours, whoever they may happen to be, or if their circumstances change, such as future children living in the area and that this was a reasonable factor to take into account in imposing the condition on the Appellant's licence.
Viewed in this way, the narrow issue of whether or not the complainant was genuine was not an issue that was necessary for the conclusion ultimately reached by the Tribunal. In such circumstances, we do not regard the Tribunal's reasons as inadequate or that the Tribunal erred in failing to rule one way or another on whether or not the unnamed complainant was being genuine in his statement that the sound of gunshots caused him fear.
Accordingly, we reject this ground of appeal.

Ground 4: A logical or unreasonable reasoning and so-called findings made without a proper basis

This and the previous ground are new grounds and the Respondent submitted it can only be pursued if leave is granted. In our view, leave should be granted as the Respondent had notice of the submissions being made in respect of the ground prior to the hearing and was able to adequately address it.

Appellant's Submissions

The Appellant focused on the Tribunal's reasoning at [52] which referred as a relevant factor to 'the legitimate safety concerns of neighbours hearing sounds of shooting at relatively close quarters, especially if it at some future time there were children living in the area'.
The Appellant submitted that the reasoning was not open to the Tribunal as merely the neighbours hearing the sounds of shooting cannot logically be categorised as an additional 'safety concern'. The Appellant stated this represents the Tribunal double counting what was in essence a single component of public safety.
Further, the Appellant submitted there was no evidence of children living in the area. The Appellant nextly submits that the evidence of the Appellant that nearby residents except for one had no complaint about his use of firearms was unchallenged and that the Tribunal's reasoning was based on speculation and assumption rather than the evidence before it.
Accordingly, the Appellant contended there was no proper basis for the Tribunal to find that another consideration (in addition to public safety) was the safety concerns of neighbours hearing the sounds of shooting at relatively close quarters.

Respondent's submissions

The Respondent submitted that this ground does not raise a question of law and leave is required.
Otherwise the Respondent submitted that the Tribunal did not 'double count' in its assessment because hearing the sound of shooting on a property at close quarters is a matter that involves an element of an assessment of whether the licence was in the public interest.

Consideration

We are prepared to accept, without deciding the issue, that the ground as framed could involve a question of law.
In any event, we agree with the Respondent's submission that neighbours being concerned of their safety by reason of hearing the sounds of shooting which inherently arises by reason of being in close quarters to the Property in question given the shape of the Property, does raise a separate additional matter to be considered beyond the concern of the risk of actual injury to those neighbours.
Accordingly, the reasoning of the Tribunal in this regard cannot be described as illogical or unreasonable.
Nextly, in respect of the contention that there was no evidence of children living in the area, as we pointed out above, the Tribunal at [52] was expressly referring to situations in the future.
In our view it was legitimate for the Tribunal to consider the position of neighbours in a general sense, untethered to the situation of the actual neighbours at the time of the Decision. It is not correct to say that the Tribunal thereby was making a finding that there were children living in the area without evidence.
Accordingly, we reject this ground of appeal.

Ground 5: The Tribunal took into account an irrelevent consideration in considering the shape and location of the Property.

Appellant's submissions

During the course of the argument, the Appellant placed particular emphasis on the contention that the condition imposed on the licence which prohibited the Appellant from the use of firearms on the Property, amounted to the taking into account of an irrelevant consideration being the shape and location of the Property.
This the Appellant said was the case because whilst the Appellant may be prohibited from the use of firearms on his property, other persons with the relevant licence could come on the Property with the Appellant's consent and discharge their firearms.
Accordingly, the Appellant reasoned that it was wrong or a misuse of the discretion to impose the condition in question, when the effect was simply to ban the Appellant from using a firearm on the Property whilst still leaving all of the safety concerns raised by the Respondent unabated because of the ability of others to use their firearms on the Appellant's property.
When this matter was raised, the Respondent was to some extent taken by surprise but sought to contend that firearms licences are limited to the purpose of their issue. Accordingly, with the consent of the parties, the Tribunal adjourned the proceedings and issued directions for the Respondent to file written submissions and any evidence in support in respect of the 'question of whether a firearms licence may be issued not necessarily limited to a specific property or properties' and for the Appellant to file submissions in reply .
Both parties consented to any further hearing on the issue being dispensed with. The Tribunal will make an order pursuant to s 50(2) of the NCAT Act that a further hearing of the proceedings in respect of this issue should be dispensed with as we are satisfied it can be dealt with without any further oral hearing on the basis of the submissions filed.

Respondent's submissions and evidence

The Respondent in accordance with the Appeal Panel's direction, read the affidavit of Thomas Pobrezny-Lynch affirmed on 25 February 2024 (the Pobrezny-Lynch affidavit).
The Respondent relied upon regulation 30 of the Firearms Regulation 2017.
Regulation 30 provides as follows: 30 Recreational hunting/vermin control - persons who are not members of approved hunting clubs (1) If an applicant for a licence (not being a member of an approved hunting club) proposes to establish recreational hunting/vermin control as a genuine reason for being issued with the licence and, in order to do so, is required to produce proof of permission to shoot on rural land, the applicant must produce with the application as evidence of the permission: (a) written permission to shoot on the land, or (b) a statutory declaration verifying that permission to shoot on the land has been given. (2) During the term of a licence issued to an applicant referred to in this clause, the licensee may lawfully possess or use a firearm (as authorised by the licence) on land other than the land specified in respect of the application if the licensee has the permission of the owner or occupier of that other land (or of an officer of the agency concerned) to shoot on that other land. (3) Any permission to shoot on rural land (including any statutory declaration verifying that permission has been given) must describe the land to which the permission relates and the type of game to be shot. (4) If a licensee has permission to shoot on rural land, the licensee must, on demand made at any time by a police officer or an authorised officer for that land: (a) produce for inspection by the police officer or authorised officer, as evidence of the permission, written permission or a statutory declaration by the person verifying that permission has been given, or (b) if it is not in the licensee's immediate possession - produce that evidence as soon as practicable (but not more than 48 hours) after the demand is made to the officer who made the demand or to another police officer or authorised officer nominated by the officer who made the demand. Maximum penalty (subclause (4)): 20 penalty units. (5) A person commits an offence under subclause (4) only if the police officer or authorised officer, when making the demand, explains to the person that failure to comply with the demand is an offence. (6) The Commissioner may approve alternative means for producing evidence of permission to shoot on rural land for the purposes of this clause and producing evidence by any such approved alternative means satisfies a requirement of this clause for the production of that evidence. Page 22 Firearms Regulation 2017 [NSW] Part 3 Licences - additional provisions Published LW 25 August 2017 (2017 No 442). (7) In this clause: authorised officer, in relation to rural land on which permission to shoot has been given, means an officer of the relevant agency (as referred to in the genuine reason of recreational hunting/vermin control) that has the care, control or management of the land.
In the result, the Respondent accepted that 'a firearms licence (issued only for the genuine reason of hunting/vermin control not on the basis of membership of an improved hunting club) may not be limited to a specific property or properties.' The Respondent accepted that this interpretation is consistent with the Commissioner's understanding of the practical consequences of clause 30.
The Respondent then went on to submit that nevertheless clause 30 is irrelevant to the appeal.
The Respondent submitted that the fact that other shooters may discharge their firearms on the Appellant's property cannot affect the dangerousness of the Appellant shooting on the Property at the present time. In other words, logically, it cannot lessen the danger posed to the public by the Appellant shooting on the Property at the present.
Further, and in any event, the Commissioner denies that the decision to impose the condition on the Appellant's licence is unfair. This is because there is no evidence that other licence holders have been granted permission to shoot on the Property since the decision to impose the condition. Alternatively, if such permission were granted, the Commissioner would impose a condition on that licensees' licence prohibiting them from shooting on the property: referring to Pobrezny-Lynch affidavit [8].

Appellant's submissions in reply

The Appellant essentially repeated his core submission that it is wrong, irrelevant or unfair to adopt the position that the Appellant should be prevented from using his licence on his own property, but not on other properties, in circumstances where the practical operation of the law precisely disables the intended effect of such a condition imposed in the context of public safety where the Appellant can merely grant permission to other licence holders to shoot on his property.
Accordingly, the imposition of the condition upon the Appellant's licence in all of the circumstances cannot be in the public interest.
Nextly, in response to the submission that the Commissioner would impose conditions on any other firearms licence holder who shoots on the property, the Appellant contends that such a condition is misconceived for three reasons: 1. To do so, the Commissioner must know of the presence of the other shooter which is unlikely to arise given the state of the law that does not require notice being given to the Firearms Registry or the Commissioner; 2. The affidavit of Mr Pobrezny-Lynch at [8] makes it clear that the Commissioner would need to carry out an assessment of the circumstances in any event, before imposing any such condition; 3. Clause 30 makes no provision for the Commissioner to be notified prior to any shooting activity being carried out.

Consideration

The Appeal Panel accepts that this ground may involve a question of law being whether or not an irrelevant consideration was taken into account or whether or not the discretion to issue a condition in question miscarried as it could not logically be said that it was in the interests of public safety overall to impose the condition.
In respect of this ground of appeal, we agree with the submissions of the Respondent.
The extent of which other shooters may discharge their firearms on the Appellant's property is a purely hypothetical scenario and one of speculation. On the other hand, the Commissioner knows of the Appellant's use of the firearms on the Property. Accordingly, the Appellant's threat to the safety of neighbours is real and present.
Section 19(1) of the Firearms Act 1996 (NSW) provides that 'a licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose'. The power is clearly discretionary.
Where the evidence leads to the available conclusion that the Appellant discharging his firearms on the Property, given the size, shape and location of the Property and the proximity to neighbours, gives rise to a non-fanciful risk to public safety, the decision to impose a condition on the Appellant's licence is one that can fairly be made in the exercise of the Commissioner's discretion.
Further, it follows that it was open to the Tribunal to conclude that the correct and preferable decision was to affirm the Commissioner's decision.
The fact that others may use their licences on the Property, on the evidence, has not been shown to be anything more than a speculative risk. Further, we accept that this can and may be resolved in the future should such shootings come to the attention of the Commissioner, including through complaints by neighbours as occurred in the case of the Appellant's use of his firearms on the Property.
In all of the circumstances, we do not think that the imposition of the condition in question relied upon an irrelevant consideration or was beyond the range of acceptable outcomes on the exercise of the Commissioner's discretion.
Accordingly, we reject this ground of appeal.

Disposition

The orders of the Appeal Panel are: 1. The further hearing of the appeal is to be dispensed with pursuant to s 50(1) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Appeal dismissed.

            I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar 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: 14 March 2024

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Judgment (27 paragraphs)

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Legislation Cited (2)

Cases Cited (18)