Schwarz v Commissioner of Police, NSW Police Force

Ground 1 - appeal on a question of law from Tribunal's decision to admit "improperly obtained evidence"

1. At the hearing, Mr Schwarz clarified the first ground of appeal as being:

(1) that the Tribunal erred in law in admitting into evidence material in the Police brief of evidence which was obtained illegally and/or in contravention of an Australian law.

(i) The Tribunal admitted evidence about a silencer, butterfly knife and 'mobile signal jammer' in circumstances where that evidence was illegally obtained because Police were present on the Appellant's property without a warrant in the absence of any other legal basis.

(ii) The Tribunal erred in finding that the effect of s 22 of the Law Enforcement (Powers and Responsibilities) Act 2002 was that the illegally obtained evidence could have been seized in any event.

(iii) The evidence was obtained in the course of a search arising out of sexual touching allegations, which were ultimately dismissed by the Local Court and which the Tribunal below has found were not substantiated.

1. Following allegations of sexual touching without consent, police arrested Mr Schwarz and seized his firearms and ammunition. At the same time, police conducted a search of Mr Schwarz's home and found a silencer, butterfly knife and mobile signal jammer. In the Tribunal proceedings Mr Schwarz applied to exclude from evidence information referring to these three items. The Tribunal called this evidence the "Alleged Prohibited Weapons Evidence". We will use the same terminology.
2. The Tribunal found at [64] that the Alleged Prohibited Weapons Evidence was obtained when the police had no right to seize the firearms or enter Mr Schwarz's property. In the Tribunal's view, the Alleged Prohibited Weapons Evidence was obtained "improperly". That word comes from s 138(1) of the Evidence Act 1995:

(1) Evidence that was obtained -

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

. . .

1. During the hearing, the Tribunal decided to exercise its discretion to receive the Alleged Prohibited Weapons Evidence (the interlocutory decision). The Tribunal did not give oral or written reasons for doing so at the time. The Tribunal gave written reasons for the interlocutory decision, together with the reasons for affirming the Commissioner's revocation decision, in final written reasons.

1. The issues which arise from Ground 1, and our answers, are:

(1) Does Mr Schwarz need leave to appeal from the Tribunal's interlocutory decision exercising its discretion to admit the Alleged Prohibited Weapons Evidence? No.

(2) Is Ground 1 an appeal on a question of law? No.

(3) Should leave be granted for Mr Schwarz to appeal on grounds other than a question of law? No.

Does Mr Schwarz need leave to appeal from the Tribunal's interlocutory decision exercising its discretion to admit the Alleged Prohibited Weapons Evidence?

1. A decision concerning an "evidential matter", such as whether to admit or take into account certain evidence, is an "interlocutory decision": NCAT Act, s 4 definition of interlocutory decision. The Tribunal's permission, or leave, is required before a party can appeal from such a decision: NCAT Act, at 80(2)(a). That rule discourages parties from appealing from interlocutory decisions before the Tribunal has handed down the final decision. It accords with the guiding principle of the NCAT Act which is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 36(1).
2. For the following reasons, Mr Schwarz does not need leave to appeal from the Tribunal's interlocutory decision exercising its discretion to admit the improperly obtained evidence. That is because Mr Schwarz did not appeal from that decision until the Tribunal had delivered the final decision and the interlocutory decision affected the final result.
3. The Supreme Court considered this issue in a similar legal and factual context in Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 at [34]. Under s 102(2)(e) of the Supreme Court Act 1970 (NSW) an appeal from an interlocutory decision cannot go ahead unless the Court gives the party permission or leave to appeal. In defamation proceedings between Mr Beran and John Fairfax Publications Pty Ltd, Adams J struck out parts of Mr Beran's Statement of Claim (the "separate publication determination"). Mr Beran did not appeal from that decision, but he did appeal after the Court had delivered the final decision.
4. On appeal, the Court (McColl JA, Mason P and Beazley JA agreeing) held that the "separate publication decision" was an interlocutory decision: Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 at [34]. The Court concluded that if Mr Beran had sought to challenge the interlocutory decision before the final decision had been delivered, he would have required the Court's permission to appeal. However, the Court held that there are circumstances in which an interlocutory decision or order can be challenged on an appeal from a final decision without the Court's leave being required. Those circumstances include where the interlocutory order "affected the final result": Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 at [35] and [36] citing Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478.
5. In Singh v Lekhwar [2022] NSWCATAP 158 at [22], the Appeal Panel concluded that leave is required before appealing from an interlocutory decision even if that decision affected the final result. However, it appears that neither party in that case drew the Tribunal's attention to the decision in Beran v John Fairfax Publications [2004] NSWCA 107 at [35]- [42].
6. In this case the interlocutory decision affected the final result. The Alleged Prohibited Weapons Evidence included that Mr Schwarz possessed the prohibited items. The possession of those items was a significant reason for the Tribunal's conclusion that it was not in the public interest for Mr Schwarz to continue to hold a firearms licence. The Tribunal also took into account Mr Schwarz's traffic history, but that was a much less significant consideration. The sexual touching charges had been withdrawn and the Tribunal was not satisfied that the alleged conduct had occurred. It follows from these findings that Mr Schwarz does not need leave to appeal from the Tribunal's interlocutory decision. Mr Schwarz can appeal from that decision, as of right, on a question of law.
7. Before deciding the second issue (whether Mr Schwarz has identified a question of law in Ground 1) we set out the Tribunal's reasons for admitting the Alleged Prohibited Weapons Evidence.

Tribunal's findings and reasoning for admitting the Alleged Prohibited Weapons Evidence

1. The Tribunal gave reasons for admitting the Alleged Prohibited Weapons Evidence in the final reasons for decision at [60]-[71]. The Tribunal referred to s 38(2) of the NCAT Act which provides that the Tribunal "is not bound by the rules of evidence and may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice". The Tribunal also noted that it has a discretion as to how an enquiry is to be conducted. Despite not being bound by the rules of evidence, the Tribunal referred to s 138(1) of the Evidence Act 1995 which provides that evidence that was "obtained improperly or in contravention of an Australian law", "is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting" the evidence.
2. Mr Schwarz submitted to the Tribunal below that, when deciding whether to admit the Alleged Prohibited Weapons Evidence, the Tribunal should take into account several of the matters listed in s 138(3) of the Evidence Act. Those matters include the probative value of that evidence, the gravity of the police's impropriety or contravention; whether the impropriety or contravention was deliberate or reckless; and the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law: Evidence Act, s 138(3)(a), (e) and (h). Section 138(3) in full provides that:

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account -

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

1. At [63], the Tribunal accepted Mr Schwarz's submission that the "starting point" should be that the Tribunal should not generally accept improperly obtained evidence. To do so "may be seen to encourage or condone unlawful conduct". In accordance with s 138(1) of the Evidence Act, the desirability of admitting the evidence should be weighed against the undesirability of doing so. The Tribunal cited Forest v Suzanne [2022] NSWCATAP 292 at [42] where the Appeal Panel held that the factors in s 138(3) of the Evidence Act "may provide guidance as to the relevant considerations".
2. The Commissioner submitted that the Appeal Panel in Forest v Suzanne was wrong to say that the "starting point" should be that the Tribunal should not generally accept improperly obtained evidence. Mr Schwarz did not challenge the Appeal Panel's interpretation and we express no view on that question.
3. Using the language in s 138(1) and s 138(3)(a) of the Evidence Act, the Tribunal concluded, at [64], that admitting the Alleged Prohibited Weapons Evidence outweighed the undesirability of doing so because of the probative value of the evidence.

This is because evidence of the Applicant's compliance or non-compliance with schemes designed to protect the public is highly relevant to the issues before this Tribunal. That is especially true where the non-compliance relates to prohibited weapons which are regulated by an analogous scheme as firearms and which has at its heart, the protection of the public.

1. Having made that finding, the Tribunal went on to reject various submissions Mr Schwarz had made about the applicability of other considerations listed in s 138(3)(e) and (h) of the Evidence Act.
2. At [67] the Tribunal rejected Mr Schwarz submission that the arresting officer, Sergeant Shields, had intentionally breached his obligations or was reckless or indifferent to those obligations. On the contrary, the Tribunal found that Sergeant Shields "genuinely believed he exercised a lawful power to seize the firearms at the time they were seized." The Tribunal found that there was no factual basis for a finding that "the impropriety or contravention was deliberate or reckless": Evidence Act, s 138(3)(e). We understand the Tribunal to have concluded that the consideration in s 138(3)(e) was not applicable to the exercise of the Tribunal's discretion to admit the Alleged Prohibited Weapons Evidence.
3. At [67] and [69] the Tribunal rejected Mr Schwarz's submission that, but for the impropriety, the Alleged Prohibited Weapons Evidence would not otherwise have been obtained. We understand that submission to relate to the consideration in s 138(3)(h) of the Evidence Act - "the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law".
4. The Tribunal found that [67], that the evidence was illegally obtained "primarily because of timing with the suspension notice being issued after the arrest".
5. The Tribunal found that if a suspension notice had been issued before police entered the premises, the police would have been on the premises lawfully for the purpose of seizing the firearms. In those circumstances, they would have had the power to seize the prohibited weapons as well. The Tribunal rejected Mr Schwarz's contention that if the police had had the right to seize the firearms and to enter the premises, they would have been precluded from seizing any prohibited weapons.
6. The Tribunal's conclusion was based on its understanding of the meaning of s 25 of the Firearms Act and s 22 of the Law Enforcement (Powers and Responsibility) Act 2002 (NSW). Each of those provisions is set out below.

25 Surrender and seizure of firearms when licence suspended or revoked

(cf APMC 4 (b), 1989 Act s 38)

(1) If a licence is suspended, revoked or otherwise ceases to be in force, the person to whom it was issued must immediately surrender to a police officer -

(a) any firearm in the person's possession, and

(b) the licence.

Maximum penalty - 50 penalty units or imprisonment for 2 years, or both.

(2) A police officer is authorised to seize any firearm in the possession of a person if that person's licence is suspended, revoked or otherwise ceases to be in force. A police officer is also authorised to seize the licence itself.

(3) This section does not apply in relation to a licence that has expired if the authority conferred by the licence continues to have effect (as provided by the regulations) pending the determination of an application for a subsequent licence.

. . .

22 Power to seize and detain dangerous articles on premises

A police officer who is lawfully on any premises may seize and detain any dangerous article that the police officer finds on the premises, if the police officer suspects on reasonable grounds that the dangerous article is being or was used in or in connection with the commission of a relevant offence.

1. Our understanding of the Tribunal's reasoning is that if police had suspended Mr Schwarz's firearms licence before entering his home, they would have had power to both seize his firearms (under s 25(2) of the Firearms Act) and to seize the prohibited weapons (under s 22 of the Law Enforcement (Powers and Responsibility) Act). The Tribunal noted that a "relevant offence" is defined in s 20(c) of the Law Enforcement (Powers and Responsibilities) Act 2002, to include "an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996 or a regulation made under either of those Acts". Section 7 of the Weapons Prohibition Act 1998 makes possession of a prohibited weapon without a licence an offence.
2. The Tribunal found that it would not have been difficult for the police to have obtained the evidence without any impropriety or without contravening an Australian law. We will call this finding "the s 138(3)(h) finding". We understand that the Tribunal regarded that finding as a consideration in favour of admitting the Alleged Prohibited Weapons Evidence.
3. Finally, at [71], the Tribunal addressed what it called "considerations of fairness consistent with the principles of natural justice". The Tribunal concluded that Mr Schwarz had a reasonable opportunity to be heard in relation to the Alleged Prohibited Weapons Evidence. Mr Schwarz was at the hearing and was able to give evidence about the Alleged Prohibited Weapons Evidence. Sergeant Shields was available for cross-examination.

1. In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25] - [44], the Appeal Panel discussed the meaning of "a question of law" and concluded that "a question of law should be articulated with sufficient precision to allow an Appeal Panel to identify it as a pure question of law."
2. Any question of law which relates to the exercise of a discretion must be of the kind identified by the High Court in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505:

[i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed ... It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

1. The Tribunal routinely admits or rejects evidence. The power to do so comes from the discretion in s 38(2) of the NCAT Act.

38 Procedure of Tribunal generally

(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

1. The first submission articulated in Ground 1 and the 'particulars' is that the Tribunal erred in admitting improperly obtained evidence. That submission does not challenge the Tribunal's power to admit improperly obtained evidence or otherwise identify any question of law.
2. The second submission articulated in Ground 1 and the 'particulars' is that the Tribunal erred in finding that the effect of s 22 of the Law Enforcement (Powers and Responsibilities) Act 2002 was that the illegally obtained evidence could have been seized in any event (the s 138(3)(h) finding).
3. Mr Schwarz submitted that the Tribunal's s 138(3)(h) finding was significant to the Tribunal's decision to admit the "Alleged Prohibited Weapons Evidence". The discretion to admit the evidence miscarried because that finding was not correct. We understand Mr Schwarz's submission to be that it would have been difficult for the police to have obtained the evidence without any impropriety or without contravening an Australian law. The consideration in s 138(3)(h) should have weighed against admitting the Alleged Prohibited Weapons Evidence.
4. In deciding to admit the "Alleged Prohibited Weapons Evidence" the Tribunal was exercising the discretion in s 38(2) of the NCAT Act. It was not exercising the discretion in s 138 of the Evidence Act because the Tribunal is not bound by the rules of evidence. Even in proceedings where the court or tribunal is bound by the rules of evidence, we note that s 138 "has been little used in civil proceedings": Civil Trials Bench Book, Judicial Commission of New South Wales, 4-1640. Nevertheless, those provisions may provide guidance as to the weighing exercise and the considerations relevant to the Tribunal's decision to admit improperly obtained evidence.
5. The High Court considered the scope of s 138(3)(h) in Kadir v The Queen [2020] HCA 1; 267 CLR 109. The High Court held at [20] that "the significance of factor (h) to the balancing of the competing public interests under s 138(3) will vary depending upon the circumstances". Where the impropriety or illegality was neither deliberate nor reckless, "the difficulty of obtaining the evidence lawfully is likely to be a neutral consideration." In this case, the Tribunal found that the impropriety was neither deliberate nor reckless. It follows that the consideration in 138(3)(h) was likely to be a neutral factor in any case.
6. Even if the Tribunal did mistake the facts or the law when making the s 138(3)(h) finding, Mr Schwarz has not identified any question of law in the House v The King sense that applies to the exercise of the Tribunal's discretion under s 38(2) of the NCAT Act to admit the improperly obtained evidence.
7. The third submission articulated in Ground 1 and the 'particulars' is that the evidence was obtained in the course of a search arising out of sexual touching allegations, which were ultimately dismissed by the Local Court. That submission does not identify any question of law in the House v The King sense that applies to the exercise of the Tribunal's discretion under s 38(2) of the NCAT Act to admit the improperly obtained evidence.
8. When making oral submissions, Mr Schwarz added two other "questions of law" under Ground 1.
9. He submitted that the Tribunal's discretion miscarried because the police did not prosecute the prohibited weapons charges, therefore the probative value of that evidence was not high. The "probative value of the evidence" is a consideration listed in s 138(3)(a) of the Evidence Act. The main reason the Tribunal admitted the Alleged Prohibited Weapons Evidence was its probative value in these proceedings. The probative value of that evidence in other criminal proceedings in not relevant.
10. In the absence of any clear articulation from Mr Schwarz of a House v The King error that applies to the exercise of the Tribunal's discretion under s 38(2) of the NCAT Act, this ground of appeal does not identify a question of law.
11. Mr Schwarz also submitted that the Tribunal's finding that he had been afforded procedural fairness, was an irrelevant consideration. At [71] the Tribunal found that:

Lastly, with respect to considerations of fairness consistent with principles of natural justice, the Applicant was present at the hearing and able to give evidence as to the Alleged Prohibited Weapons Evidence as well as make any submissions with respect to those matters. Sergeant Shields was also available for cross-examination. Any concern about procedural fairness may be overcome with the Applicant availing himself of those opportunities.

1. The Tribunal reference to "considerations of fairness" at [71] appears to have been prompted by the Appeal Panel's reference to "unfairness" in Forest v Suzanne [2022] NSWCATAP 292 at [23]. In that case the issue before the Appeal Panel was whether the Tribunal had made an error of law in considering video evidence that had been recorded without the respondent's consent. At [41], the Appeal Panel stated that: "There is a discretion which the Tribunal has as to the manner in which its enquiry is conducted." Referring to s 138 of the Evidence Act, the Appeal Panel went on to state at [42] that:

In deciding whether to receive such evidence the Tribunal should consider whether the desirability of its admission outweighs the undesirability of doing so and whether there is unfairness that may arise by its receipt or rejection in the particular circumstances of the case. In this regard the guiding principle in s.36(1) applies. The factors set out in s 138(3) of the Evidence Act may provide guidance as to relevant considerations including as to the nature of the evidence and the purpose for which it is sought to be relied upon.

1. The Evidence Act nominates unfairness as the test for the exclusion of evidence, in various provisions. For example, s 135 contains a discretion to exclude any evidence where its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party. However, unfairness is not part of the test in s 138 of the Evidence Act.
2. The Tribunal appears to have understood the reference to unfairness in Forest v Suzanne as being a reference to procedural unfairness. Providing procedural fairness so that a party has a reasonable opportunity to respond to improperly obtained evidence is not a consideration under s 138 of the Evidence Act. However, as we have said, the Tribunal was not exercising the discretion under that provision. The Tribunal was exercising the discretion under s 38(2) of the NCAT Act which requires the Tribunal to comply with the "rules of natural justice". Contrary to Mr Schwarz's submission, procedural fairness is not an irrelevant consideration when exercising that discretion.
3. In the absence of any clear articulation from Mr Schwarz of a House v The King error that applies to the exercise of the Tribunal's discretion under s 38(2) of the NCAT Act, this ground of appeal does not identify a question of law.

Should the Appeal Panel give leave for Mr Schwarz to appeal on grounds other than a question of law raised in Ground 1?

1. The Tribunal summarised the principles for granting leave to appeal on questions other than a question of law in Collins v Urban [2014] NSWCATAP 17 at [84]:

The general principles derived from these cases can be summarised as follows:

In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

issues of principle;

questions of public importance or matters of administration or policy which might have general application; or

an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;

a factual error that was unreasonably arrived at and clearly mistaken; or

the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

1. As Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 (Hungry Jack's) at [9]:

... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice.

1. Mr Schwarz submitted that the Tribunal should grant leave to appeal on Ground 1 because the issue is one of significant public importance which might have general application. It was said that the Appeal Panel's decision will have a substantial effect on whether administrative decision makers rely on unlawfully obtained material. It will impact the day-to-day decisions of frontline staff within the NSW Police, as to whether or not to follow legislatively mandated procedures for the collection of evidence. According to Mr Schwarz, as things presently stand, the Tribunal has given licence to the NSW Police to illegally enter other people's homes, search through their possessions, take material obtained and use it in the discharge of their statutory duties.
2. The High Court articulated the competing policy considerations when determining whether to admit improperly obtained evidence in Kadir v The Queen [2020] HCA 1; 267 CLR 109 at [12]:

The desirability of admitting evidence recognises the public interest in all relevant evidence being before the fact-finding tribunal. The undesirability of admitting evidence recognises the public interest in not giving curial approval, or encouragement, to illegally or improperly obtaining evidence generally.

1. On the specific facts of this case, the Tribunal below found that the public interest in having all relevant evidence before the Tribunal outweighed the public interest in discouraging police from obtaining evidence improperly. The Tribunal weighed these competing policy considerations. There is no error in that approach and therefore no need to consider whether any error has led to a substantial miscarriage of justice.
2. Leave to appeal on grounds other than a question of law is refused.

Ground 2 - appeal on a question of law that Tribunal denied Mr Schwarz procedural fairness by admitting an expert report

(1) The Tribunal erred in law denying procedural fairness to Mr Schwarz by admitting into evidence an expert report in relation to the alleged mobile signal jammer in circumstances where:

(a) the author of the report was not made available for cross-examination; and/or

(b) Mr Schwarz was not afforded an adequate opportunity to prepare expert evidence in response.

1. Mr Schwarz did not admit that the item that was identified as a "mobile signal jammer" was a "prohibited item". He said he assumed it was a toy or "a low-power gimmick". The expert report which expressed the opinion that it was a "prohibited item" was part of the documents provided by the Commissioner under s 58(1)(b) of the Administrative Decisions Review Act 1997 (NSW). That provision requires the Commissioner to lodge with the Tribunal "a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal".
2. On 18 November 2024, Mr Schwarz's solicitors emailed the Commissioner of Police advising that he required "each of the prosecuting officers for cross examination". On 12 December 2024, the Commissioner confirmed that she "will only be relying upon Sergeant Shields as a witness".
3. At the hearing before the Tribunal Mr Schwarz objected to the expert report being received in evidence because it was said to be prejudicial and was opinion evidence without appropriate reasoning or clarity. The Tribunal refused that application and admitted the expert report. After admitting the expert report into evidence, the Tribunal enquired as to whether either party sought an adjournment to obtain further evidence or to cross-examine witnesses. Mr Schwarz did not seek an adjournment.
4. In the reasons for decision at [95], the Tribunal rejected Mr Schwarz's submission that the expert report is "incomprehensible" or should be given little weight. At [102] the Tribunal described the approach the expert took in his report and accepted the opinion expressed in that report.
5. Mr Schwarz submitted that "prior to the hearing, there was no suggestion that the expert report would be relied on as anything other than material which was before the Commissioner when the decision was made to revoke Mr Schwarz's firearms licence. Mr Schwarz did not prepare any expert evidence in response. It was procedurally unfair for the Tribunal to admit the evidence where it could not be tested.

1. The issues which arise from Ground 2, and our answers, are:

(1) Is Ground 2 an appeal on a question of law? Yes.

(2) Did the Tribunal deny Mr Schwarz procedural fairness? No.

1. The Tribunal is subject to the rules of natural justice, otherwise known as procedural fairness: NCAT Act, s 38(2). One aspect of that rule is embodied in s 38(5)(c ) of the NCAT Act:

The Tribunal is to take such measures as are reasonably practicable -

. . .

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

1. A question as to whether the Tribunal has breached procedural fairness rules is a question of law.

Did the Tribunal breach procedural fairness rules?

1. The documents lodged by the Commissioner under s 58 of the Administrative Decisions Review Act contained the expert report. After the Tribunal rejected Mr Schwarz's submission that the expert report should not be received into evidence, an adjournment was offered. It should have been apparent to Mr Schwarz, who was represented by a lawyer, that if he wished to test the opinion contained in the expert report he should apply for an adjournment and request that the author be available for cross-examination. He did not do so. The Tribunal gave Mr Schwarz a reasonable opportunity to be heard or otherwise have his submissions considered. There is no breach of procedural fairness.

Grounds 3 and 8 - appeal on a question of law for failure to exercise jurisdiction and inadequate reasons

The Tribunal erred in law constructively failing to exercise its jurisdiction by failing to determine whether or not the Appellant was a fit and proper person to hold a firearms licence and/or whether it was in the public interest that the Appellant's firearms' licence be revoked.

The Tribunal erred in law in failing to give adequate reasons for its findings (if it did make findings) that the Appellant was not a fit and proper person to hold a firearms licence and/or that it was not in the public interest for the Appellant to hold a firearms licence.

1. At [15] the Tribunal identified the main issue as being "whether the correct and preferable decision in the circumstances is the revocation of the Applicant's licence." The term "correct and preferable decision" comes from s 63 of the Administrative Decisions Review Act 1997:

63 Determination of administrative review by Tribunal

(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.

1. Section 24(2)(c) of the Firearms Act provides that the Commissioner may revoke a licence if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence. In addition, the Commissioner has power under Regulation 20 of the Firearms Regulation 2017 (NSW) to revoke a licence if satisfied that it was not in the public interest for the person to hold a licence.
2. The Tribunal outlined the nature and scope of its jurisdiction at [21] - [33]. When referring to another Tribunal decision under the Firearms Act, the Tribunal stated at [111], that:

The controversy to be resolved by the Tribunal was whether it was in the public interest to grant the applicant a licence as at the time the Tribunal was making that decision.

The Tribunal is satisfied that the decision to revoke the licence was the correct and preferable decision and affirms the decision.

1. The issues which arise from Grounds 3 and 8, and our answers, are:

(1) Are grounds 3 and 8 appeals on a question of law? Yes.

(2) If so, has the Tribunal made an error law? No.

Are grounds 3 and 8 appeals on a question of law?

1. Whether there has been a constructive failure to exercise jurisdiction is a question of law: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [6], [20]-[22] (Basten JA).
2. Ground 8 is failure to provide adequate reasons for the decision. That is a question of law: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13]. Under the NCAT Act, a failure to comply with s 62(3) amounts to an error of law: Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 at [59] - [60]. That provision requires the Tribunal to set out:

(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the Tribunal's understanding of the applicable law,

(c) the reasoning processes that lead the Tribunal to the conclusions it made.

1. Mr Schwarz's first submission appears to be that the Tribunal was required under s 63(1) of the Administrative Decisions Review Act 1997, to determine both whether he is a fit and proper person to hold a licence and whether it was not in the public interest for him to do so.
2. That is not a correct understanding of the Firearms Act. The Commissioner may revoke a person's firearms licence either because they are not a fit and proper person to hold a licence or because it is not in the public interest for the person to hold a licence: Firearms Act, s 24(2)(c) and Firearms Regulation 2017 (NSW), cl 20.
3. At the commencement of the hearing before the Tribunal, the Commissioner indicated that the decision under review was based on the public interest test.
4. The Tribunal has not constructively failed to exercise its jurisdiction by failing to determine whether or not the Appellant was a fit and proper person to hold a firearms licence.
5. Mr Schwarz's second submission under this ground was that there was no express determination by the Tribunal as to whether it was in the public interest for him to hold a licence. There was only a "bare determination" at [115], that the Commissioner's decision was the correct and preferable decision. The Tribunal failed to engage with the statutory tests and failed to reach a conclusion on those matters. Alternatively, under Ground 8, Mr Schwarz submitted that the Tribunal failed to make a finding on a material question of fact.
6. The Tribunal did not make an express finding that it was satisfied that it was not in the public interest for Mr Schwarz to hold a licence. The Tribunal set out its reasons for concluding that it is not in the public interest for Mr Schwarz to hold a firearms licence at [103] - [115]. The Tribunal went on to affirm the Commissioner's decision to revoke Mr Schwarz's firearms licence. It is implicit in those findings that the Tribunal was satisfied that it was not in the public interest for Mr Schwarz to hold a licence. The Tribunal has not failed to constructively exercise its jurisdiction by failing to determine whether or not it was in the public interest for Mr Schwarz to hold a firearms licence. Nor has the Tribunal failed to make a finding on a material question of fact.
7. In oral submissions Mr Schwarz submitted that the Tribunal failed to exercise jurisdiction by failing to identify or analyse the risk that Mr Schwarz would misuse firearms in the future.
8. At [26] - [33] the Tribunal summarised the case law interpreting the term "public interest". That summary includes a reference to the decision in Constantin v Commissioner of Police [2013] NSWADTAP 16 at [33] where the Appeal Panel expressed the view that the public interest "may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
9. At [113] the Tribunal concluded that it was not in the public interest for Mr Schwarz to hold a firearms licence because of his "inability to comply with, or disregard for, laws and regulations ensuring public safety". The Tribunal did not make an express finding that Mr Schwarz posed a risk to public safety, but such a finding was not necessary. It is sufficient if, because of his conduct, members of the public would not have confidence in the administration of the licensing scheme if Mr Schwarz had access to firearms.
10. Mr Schwarz went on to submit that the Tribunal erred by expressing the order as being that the Commissioner's decision "was" the correct decision when the Tribunal should have made a finding for itself.
11. We are satisfied that despite any grammatical ambiguity, the Tribunal understood that its task was to decide what the correct and preferable decision is as at the date of the hearing. There was no constructive failure to exercise jurisdiction on that basis.
12. Mr Schwarz has not identified a question of law in relation to this aspect of Ground 3 or, if he has, the Tribunal has not made a legal error.
13. In addition, Mr Schwarz said that the Tribunal did not adequately set out its reasoning process.
14. We are not required to determine the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: NSW Land and Housing Commission v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [66] (Bell P, Ward JA agreeing). In compliance with s 62(3) of the NCAT Act, the Tribunal set out its reasoning process as outlined above.

Ground 4 - appeal on a question of law in imposing an impermissibly strict test

(1) In the alternative to Ground 3, the Tribunal erred in law in imposing an impermissibly strict test for the revocation and/or reinstatement of the Appellant's firearms licence, which went beyond and/or was inconsistent with the requirements of the Firearms Act for the issue of a licence.

1. The Commissioner must not issue a licence to a person who has, within the last 10 years, been convicted of certain prescribed offences including offences relating to the possession or use of a firearm 'or any other weapon'. Another weapon includes a silencer and a butterfly knife: Firearms Act s 22(2)(a) and 11(5)(b). Mr Schwarz submitted that it would be inconsistent with the Firearms Act to impose a more stringent test, when considering whether to revoke a person's firearms licence.
2. The second submission under this Ground of appeal was that when concluding that it was not in the public interest for Mr Schwarz to hold a licence, the Tribunal has set an impossibly high bar. No one can ever have redemption no matter how long ago the impugned conduct took place, the circumstances of that conduct or the person's explanation for it. The Tribunal did not refer to the fact that the conduct had taken place many years ago or that there was no evidence that it would give rise to any adverse or dangerous conduct or events.
3. Neither of these submissions identifies a question of law.
4. Ground 5 was not pressed.

Ground 6 and Ground 12 - appeal on a question of law that Tribunal made findings when there was 'no evidence'; and leave to appeal on question other than question of law

(1) The Tribunal erred in law in making findings in the absence of evidence, that the Appellant had knowledge that the silencer, butterfly knife and mobile signal jammer were illegal items.

1. In relation to the silencer, the Tribunal found at [74], that:

The Applicant procured and possessed a silencer, for which he did not have a permit, for less than a year prior to it being seized by the police on 25 March 2023.

1. The Tribunal went on to find at [106]-[108] that:

The position with the silencer was different in that the Applicant did not acquire it as a teenager but as a man in his fifties, who by that time, had an extensive history with firearms.

The allegation that the Applicant was not aware that silencers are a prohibited weapon in New South Wales or believed that silencers were not a prohibited weapon sits uneasily with this extensive experience. Silencers have been prohibited in New South Wales since long before 1998. Analogous with the situation in French v Commissioner of Police, New South Wales Police Force [2013] NSWADT 221 it is impossible to believe that the Applicant, as experienced as he was with firearms including in shooters' organisations and as a contracted shooter as well as identifying himself as having an avid interest in weaponry and "military stuff", was unaware of that fact. (Emphasis added.)

1. We accept Mr Schwarz's submission that he was not "in his fifties" when he acquired the silencer. In fact, he was 29 years old. But nothing turns on that mistake. He was still an adult with extensive history with firearms.
2. Mr Schwarz submitted that there was 'no evidence' for the Tribunal's finding highlighted in italics above that it was impossible to believe that Mr Schwarz was not aware that silencers are a prohibited weapon. Mr Schwarz characterised that finding as a finding that he should not be believed in relation to a central issue. It cannot be inferred from the fact that he was a long time shooter and was in the Army that he must have known that possessing the silencer was prohibited.
3. Whether there was no evidence to support a finding of fact and whether the Tribunal drew inferences that were not available from the facts as found are both questions of law: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [30(7)] and [32(1)] applying John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13] and Minister for Immigration & Multicultural Affairs v Al‑Miahi [2001] FCA 744 at [34]. We understand Mr Schwarz submission to be that the finding that Mr Schwarz was aware that the silencers are a prohibited weapon could not be inferred from the evidence.

1. The Tribunal outlined the evidence relating to Mr Schwarz's possession of the prohibited weapons at [104]-[105] and summarised his "extensive experience" with firearms at [106]. The Tribunal then noted at [107] that silencers have been prohibited in New South Wales since "long before 1998".
2. In our view, on the basis of those findings, the inference that the Tribunal drew was available. Because of his extensive experience with firearms it was open for the Tribunal to infer, despite Mr Schwarz's denials, that he knew that possessing the silencer was prohibited.
3. Even if it was not open to the Tribunal to draw that inference, the Tribunal went on in [108] to conclude that:

In any event, ignorance of the law is of course no excuse. Even accepting the Applicant's explanation for acquisition of these items, the acquisition and possession of all three items evidence at worst, an inability or unwillingness to effectively inform himself of his obligations and comply with them or at best, a passivity with respect to his obligations and a lack of responsibility by relying upon the advice of sellers of such goods or the fact that acquisition of the items is possible.

1. The Tribunal's ultimate finding was that Mr Schwarz was either unwilling to effectively inform himself of his obligations or was passive with respect to his obligations. That finding was repeated at [113]. Mr Schwarz is unable to comply with, or disregards, laws and regulations aimed at ensuring public safety.

Should the Appeal Panel give leave for Mr Schwarz to appeal on a ground other than a question of law raised in Ground 6? No.

(1) In the alternative to Ground 6 (the no evidence ground) the Tribunal erred in finding that:

(a) Mr Schwarz had knowledge that the silencer, butterfly knife and 'jammer' were illegal items, in circumstances where the weight of evidence was against that finding;

(b) Mr Schwarz's possession of the silencer, butterfly knife and mobile signal jammer were a sufficient basis to dismiss the application for reinstatement of his firearms licence.

1. The basis for seeking leave to appeal appears to be either that there is an injustice that is reasonable clear or the Tribunal has made a factual error that was clearly mistaken. For the reasons we have given, the finding was not "clearly mistaken", nor is there an injustice that is reasonably clear.
2. Ground 7 was not pressed.

Grounds 9 - 11 - appeal on grounds other than a question of law including the weight given to various matters and findings of fact against the weight of the evidence

(1) The Tribunal failed to give proper weight to the Appellant's evidence about the circumstances in which he acquired, and the circumstances in which he afterwards retained, the silencer, butterfly knife and mobile signal jammer.

The butterfly knife and mobile signal jammer were acquired when the Appellant was a minor.

The butterfly knife and mobile signal jammer were never taken out of their packaging.

The silence was acquired by the Appellant through a registered firearms dealer in circumstances where the Appellant was advised that it was a legal item in conjunction with his category D firearms licence.

The Appellant possessed the items for many years without any adverse incident.

The Appellant was unaware that any of the items were illegal or prohibited.

(1) The Tribunal failed to give proper weight to the Appellant's evidence about his strong community ties, good character and background (including his lengthy military service) and purposes for which he required his firearms licence.

(2) The Tribunal placed too much weight on historical driving offences committed by Mr Schwarz.

Particulars

The historical dangerous driving charge occurred two decades ago and was the only such incident on the Appellant's driving record.

The Tribunal's findings about the driving record were erroneous, in that the Appellant had only been disqualified from driving once for driving furiously or recklessly, and never separately suspended.

Principles for granting leave on a grounds other than a question of law and Mr Schwarz's submissions.

1. We have set out the relevant principles above.
2. Mr Schwarz submitted that leave should be granted because:

(1) there is an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or

(2) the Tribunal has made a factual error that was unreasonably arrived at and clearly mistaken; or

(3) the Tribunal has gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

Should the Appeal Panel give leave to appeal on any of these grounds?

1. The first two submissions relating to these grounds of appeal are that the Tribunal gave insufficient weight to aspects of Mr Schwarz's evidence. At [109] the Tribunal did give some weight to the evidence of witnesses as to Mr Schwarz's use of firearms and his active membership of the pistol club.
2. As to the injustice, Mr Schwarz put on a substantial body of evidence in support of his position and it was unfair and unjust for the Tribunal to ignore that material in favour of a determination that contraventions on their own were sufficient to dispose of his application.
3. In placing the weight it did on the mere possession of the prohibited items and Mr Schwarz's driving record, Mr Schwarz submitted that the Tribunal ignored the crux of his case. His case was that even accepting that he engaged in the contraventions, it was nonetheless appropriate that he regain his licence, having regard to his extensive history in safely using firearms, his positive case for having access to them, including by his participation in club life, range safety and his work in controlling pests on rural property, and the evidence about the circumstances in which the prohibited items were acquired and retained.
4. There is no "substantial miscarriage of justice" in placing weight on some aspects of the evidence over others. The Tribunal's task was not to respond to Mr Schwarz's case, but to determine, on the basis of its findings on material questions of fact, whether it was contrary to the public interest for him to continue to hold a licence. Mr Schwarz was in possession of prohibited items. It was open to the Tribunal to find, in all the circumstances, that that indicated either an inability to comply with, or a disregard for laws and regulations aimed at ensuring public safety. In those circumstances it was also open for the Tribunal to conclude that it was not in the public interest for Mr Schwarz to continue to hold a licence.
5. At [113], the Tribunal found that Mr Schwarz had a "poor driving history" over an extensive period and that that "only affirms and supports" the finding that he is unable to comply with, or disregards, laws and regulations aimed at ensuring public safety.

The Applicant's poor driving history which has subsisted for an extensive period only affirms and supports these findings. In this respect, it supports the Applicants inability to comply with, or a disregard for, laws and regulations aimed at ensuring public safety. This is true whether it is "15 traffic offences between 2001 and 2023" or ten or more traffic infringements (the latter being accepted by the Applicant).

1. Mr Schwarz submits that there is only one significant driving offence and that it was in 2004 when he was disqualified for driving furiously or recklessly. His licence was never separately suspended.
2. Even if the Tribunal's findings about Mr Schwarz's driving record was not entirely accurate, the Tribunal did not place much weight on that record. It was mentioned at [113] only as a factor which "affirms and supports" his "inability to comply with or, or disregard for, laws and regulations aimed at ensuring public safety." There would be no substantial miscarriage of justice if leave to appeal on that ground is refused, nor should leave be granted for any other reason.

Constitution of the Appeal Panel

1. The Appeal Panel was initially constituted by ADCJ Hennessy, Deputy President and Dr R Dubler SC, Senior Member. On 25 November 2025 the President of NCAT reconstituted the Appeal Panel as comprising only ADCJ Hennessy: NCAT Act, s 52.

(1) Leave is refused for the Appellant to appeal on grounds other than a question of law.

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.