THE REGISTRAR OF FIREARMS v GITSHAM No. SCCIV-02-346 [2002] SASC 301

He held the licences class A and class B under the Firearms Act 1977 ("the Act") for a .22 rifle, a .222 rifle and a 12 gauge shotgun. On 26th May 2000 he made an application pursuant to s 12 of the Act to the Registrar of Firearms seeking a class H licence to possess and use a handgun for such purpose as may be specified in the licence. He proposed to use a handgun on his property to kill animals which had to be put down. The Registrar, by his delegate, with the concurrence of the Firearms Consultative Committee ("the Committee") refused the application and notified the respondent accordingly by letter dated 30th November 2000. The respondent appealed to a Magistrate pursuant to s 21D of the Act. That appeal was allowed and the application was referred back to the Registrar and the Committee. Further evidence was received. The application was again refused and the respondent was informed of that decision by letter dated 21st June 2001.

The respondent appealed against that decision pursuant to s 21D. A learned Magistrate conducted a hearing and on 22nd February 2002, set aside the decision of the Deputy Registrar and granted the application with the consequence that the licence held by the respondent be varied to include a classification for class H to be endorsed on the licence. The terms of the decision made by him is that the firearms licence 20285P held by the respondent be varied to include a classification endorsed for class H with a specific purpose of use on the respondent's property.

The appellant appeals to this Court against that decision.

The Act came into operation on 1st January 1980 and has not been amended since 1st July 1999. The Commissioner of Police is the Registrar of Firearms: s 6(1). He delegated his powers and functions under the Act to the Deputy Registrar by instrument in writing pursuant to s 6(2).

S 5(1) of the Act provides, inter alia, for the classes of firearms and a handgun is a class H firearm.

S 7 of the Act provides for the establishment of the Committee which is comprised of six members, appointed by the Governor; a legal practitioner of at least seven years standing, a person nominated by the Commissioner of Police, a person who has, in the opinion of the Governor, wide experience in the use and control of firearms, a medical practitioner, a person who carries on the business of primary production and uses a firearm or firearms for the purpose of that business and a person who has experience in the administration of, or in participating in, a competitive discipline using firearms being a discipline in which shooters compete at the Olympic Games or the Commonwealth Games. The Committee must include at least two men and two women: s 7(2a). It may be seen that the Committee is a specialist committee comprised of persons with relevant experience to discharge its function under the Act.

S 11(1) provides that a person who has possession of a firearm without holding a firearms licence authorising possession of that firearm is guilty of an offence and s 11(2) provides that a person who has possession of a firearm or who uses a firearm for a purpose that is not authorised by a firearms licence held by that person is guilty of an offence. There are certain exceptions which are not relevant for present purposes.

Pursuant to s 12 of the Firearms Act an application for a firearms licence must be made to the Registrar in the manner and form and containing information prescribed by regulations made under that Act.

Where an application for a firearms licence is properly made and the applicant is usually resident in South Australia, the only circumstances in which it may be refused by the Registrar are set out in s 12(6). Those which are, or may be, relevant for present purposes are as follows:

(iv) the Registrar is satisfied that the applicant could not use any firearm for the purpose or one or more of the purposes to be endorsed on the licence; or

(v) the Registrar is satisfied that the applicant could not use any firearm of the class or one or more of the classes to be endorsed on the licence in accordance with the conditions of the licence; or

(vi) to grant the application would, in the Registrar's opinion, be contrary to the public interest; and

(b) the consultative committee agrees that the application should be refused."

"13 (1) A firearms licence may authorise possession of a particular firearm or firearms of a particular class, and must be endorsed by the Registrar with the purpose or purposes for which that firearm or firearms of that class may be used by the holder of the licence.

(2) A firearms licence can only be endorsed with a purpose or purposes prescribed by regulation or approved by the Registrar pursuant to the regulations.

(4) Subject to this section, a firearms licence is subject to -

(a) any licence conditions prescribed by the regulations; and

(b) any licence conditions imposed by the Registrar with the approval of the consultative committee; and

(c) any licence conditions imposed by the Registrar with the agreement of the holder of the licence."

Section 14 of the Act relates to the acquisition of firearms and provides that a person, with some exceptions, who acquires a firearm without holding a permit is guilty of an offence. Section 15 relates to an application for a permit to acquire a firearm and s 15A provides for the circumstances in which the Registrar may refuse an application for a permit.

It may be seen from these provisions that there are two devices for limitation of the use of a firearm by the licensing system: by designation of purpose for which the firearms may be used and by the imposition of conditions.

The Firearms Regulations 1993 made under the Act came into operation on 1st September 1993 and have been amended subsequently from time to time. I refer to the Regulations as they were at the time of the events relevant to this appeal.

Reg 12(1) provides that a firearms licence must be endorsed by the Registrar with the purpose or purposes for which the firearm or firearms of the class or classes authorised by the licence may be used by the holder of the licence. Reg 12(2) specifies eight purposes, one or more of which may be endorsed on the licence. The only purpose relevant to this appeal is that the firearm is used in relation to carrying on the business of primary production or in the course of employment by a person who carries on such a business [purpose number 5]: Reg 12(2)(e). The eighth purpose is such other purpose as is approved by the Registrar. Reg 12 does not distinguish between the various classes of firearms.

Reg 19 imposes conditions of licences. Reg 19(7) relates to Class H firearms and provides that:

"19(7) It is a condition of a firearms licence that authorises the possession and use of a class H firearm that the holder of the licence may only use a firearm of that class -

(a) if the holder is an active member of a recognised firearms club; or

(b) in the course of carrying on the business of guarding property or in guarding property in the course of employment who carries on that business; or

(c) for the purposes of collecting and displaying firearms; or

(d) for such other purpose as is approved by the Registrar."

As may be seen, these conditions all relate to the purpose of the use of the handgun.

I return to the significance of these regulations shortly.

The Registrar and the Committee have established Standard Operating Procedures to be followed for the guidance of those discharging obligations under the Act and the Regulations. They do not have the force of law but are consulted and, presumably, applied where appropriate. They cover many subject matters but there are only three which are relevant to this appeal. They are used in the adjudication process. Number 22 provides guidelines for referral of matters to the Committee. This procedure provides that materials presented to the Committee:

"....... need to contain a similar degree of proof as that needed in Court (eg witness statements, copies of Apprehension reports, Court orders) and must be factual not supposition or innuendo. Evidence must be able to withstand scrutiny."

"Before the consultative committee makes any decision upon a matter arising under this Act, it must allow the Registrar, and any other person with a direct interest in the matter, a reasonable opportunity to make representation orally or in writing to the committee."

In the present case this procedure was followed. The respondent, his solicitor and a person claiming to be an occupational safety expert, Mr Dodd, all appeared before the Committee which considered what they had to say.

Number 35 purports to relate to the use of all types of firearm licences and endorsements and contains a definition of a primary producer which has been taken from the Motor Vehicles Act 1959 and is of no significance for present purposes.

Number 35 relates to the purpose of use and justification of all types of firearm licences and endorsements. It provides that a firearms licence should not be issued, removed or varied until justification as determined by the policy in the Standard Operating Procedures is produced to the Registrar. It refers to all types of licence and includes the purpose of primary production but does not refer to any particular type of firearm, including a handgun. It sets out the type of information and documentation which an applicant may have to produce when applying for a licence to use a firearm in primary production.

Number 36 relates to permits to acquire firearms and, unlike Number 35, does refer to a class H firearm, ie a handgun. The only relevant provision for present purposes is:

As a general rule pastoral stations would be limited to one handgun per station."

In Johnson v Registrar of Firearms [2001] SASC 51; (2001) 79 SASR 353, Gray J had occasion to consider what he described as the scheme of the Act which, he said, was a comprehensive scheme which deals with gun control and the aim of the Act is to ensure public safety: 357. I agree with those observations. The provisions of the Act and the Regulations provide close regulation of the acquisition, possession, use, registration and transfer of firearms in the interests of public safety.

The respondent sought a class H licence so that he could use a handgun on his property in the course of his farming activities. He wanted to be able to shoot livestock as required by use of a handgun rather than a rifle or a shotgun. Much evidence was placed before the learned Magistrate about his perceived need to use a handgun. He gave evidence and called Mr Dodd. In brief terms the respondent claimed that there was danger in carrying a rifle whilst riding a motor cycle on the property which was necessary when an animal had to be put down. The rifle would protrude each side of the handle bars and could strike trees or other foliage. If carried across his back, he would have difficulty in straddling the motor cycle. Also, he claimed that a handgun was more effective at close range in destroying an animal as there was less likelihood of ricochet of the projectile or injury to the shooter or an employee from fragments of bone. This evidence was supported by Mr Dodd.

The appellant called Mr Chandler who is the Senior Firearms Adjudicator employed in the Firearms Branch of the South Australia Police. He considered the application of the respondent and decided that it should be refused because it did not come within Standard Operating Procedure 1.09. He prepared a submission to the Committee and referred the matter to the Deputy Registrar for his determination. He refused the application. It was then set down for hearing before the Committee. The respondent attended without legal representation and the Committee, after considering the matter, agreed with the decision of the Deputy Registrar. The respondent was advised accordingly and he made the first appeal to a Magistrate.

By this time a report of Mr Dodd had been presented to Mr Chandler. He obtained reports from the members of the Committee who were experienced with firearms, including the member who is a primary producer. Those statements were made available to Mr Kerin who acts for the respondent.

The report from Mr Dodd had not been submitted to the Deputy Registrar or the Committee and the Magistrate referred the application back to the Committee for further consideration. The statements from the three members of the Committee were not provided to the Magistrate. One of these members did not sit on the Committee when the matter was reconsidered.

Upon reconsideration by the Committee, the respondent was represented by Mr Kerin, Mr Dodd presented his views and questions were asked of Mr Kerin, the respondent and Mr Dodd. The Committee again rejected the application. The Deputy Registrar, Inspector Flaherty, also gave evidence before the learned Magistrate. He is the delegate of the Registrar and his role is to administer the Act and the Regulations. According to Mr Flaherty, the reason that the Committee rejected the application was that it did not accept that there was a genuine need for the respondent to use a handgun on his property.

The reason given by the Deputy Registrar when writing to the respondent refusing the application was that he was not satisfied that the respondent "had a genuine reason for the use of an H class firearm".

Inspector Flaherty had been a member of the South Australia Police for 26 years and told the learned Magistrate that he had extensive operational experience in the use of firearms, including four years in the Special Task and Rescue Force where he used firearms in rural and urban environments. He also had considerable experience with firearms in the Army Reserve and on rural properties years ago as a station hand. On occasions he has destroyed animals.

Mr Flaherty said that he considered and refused the application of the respondent on two occasions. On both occasions his decision was reviewed by the Committee and his decision was confirmed. He told the learned Magistrate that he formed the view, based upon his experience with firearms and the provisions of the Act and the Regulations, that there was not a genuine reason for requiring a handgun. He said that the size of the respondent's property indicated that the use of a handgun was merely a "convenience issue". When destroying livestock, a rifle or shotgun could be used as easily as a handgun and in the destruction of vermin, a long gun was more effective. He went on to say that because the respondent's property was small, if he found an animal that had to be destroyed, he could return to the homestead and obtain a firearm without much delay.

According to Mr Flaherty, he only allowed handguns when required for very large properties where access to firearms may be a long way away. Such applications are rare and are carefully scrutinized. The properties are usually in the far north and comprised of 37,000 acres or more.

The learned Magistrate allowed the appeal. He said:

"The [appellant's] submissions concerning the application of the regulations are both complex and ingenious. The problem with those submissions is that one cannot interpret the ultimate exercise of the Registrar's discretion without considering the explicit language of Section 15A(2) of the Act and on that topic the [appellant] is silent. Whatever regime the regulations purport to implement they are necessarily subordinate to the Act and the Act makes it clear that unless the Registrar is satisfied that the applicant is not appropriate under s.15A(1) the Registrar may only refuse the application if 'the applicant does not have a genuine reason for acquiring the firearm' (s.15(2)(a))."

He went on to say that applying the ordinary meaning of "genuine", namely "sincere, authentic, legitimate, honest, etc", the respondent's reason for wanting a Class H licence was genuine and not on some pretence or false pretext.

The learned Magistrate posed the question which he had to answer as:

"......... can I be satisfied on the balance that the [respondent's] reasons for wishing to acquire the additional status of the use of a hand gun are genuine and not merely an attempt to acquire the 'H' Class variation on some pretence or false pretext."

He then reviewed the respondent's background and experience and reasons for wanting to use the handgun.

The learned Magistrate found that the respondent is of good character and had experience with firearms over 30 years. His property is hilly and the only motorized form of transport to most of the property is by motor cycle. He said that the appellant travels with his rifle across the handle bars of the motor cycle which has caused "obvious" problems in the past. The respondent and his wife live alone on the property. He had always obeyed the law regarding the storage of guns and ammunition and would willingly undertake not to remove the handgun from his property for any reason. He requires a safe means by which to dispose of certain stock and feral animals. He had been advised that the use of a .22 rifle for such purposes can be hazardous because of ricochet of the projectile. The learned Magistrate said that the testimony of the respondent was impressive and that he accepted him as a witness of truth.

He also accepted the evidence of Mr Dodd which, he said, made out a convincing case that a handgun was a safer option than a rifle in various situations confronting the respondent on his property. The learned Magistrate did not discuss the evidence of Mr Chandler or Mr Flaherty. He said:

"The [appellant] appeared to pitch his argument (in defence of his refusal to grant the licence) in two ways. In a general sense, having regard to the prescriptive nature of the legislation it was important to restrict licences and in a particular sense, the applicant's circumstances did not satisfy the threshold test for the size of his property as dictated by the Standard Operating Procedures.

Regulation 19(7) has been quoted as a justification for the refusal (see the Deputy Registrar's letter to the applicant dated 12.10.2000) but such purported justification has not been explained and in my view is of no consequence. In fact, that letter simply confirms that the Deputy Registrar's justification for the refusal is convoluted and without proper basis. In regard to the Regulations I agree with Mr Kerin when he states in his response submissions at p.10

'Nowhere does the Act or regulations say that any classes of firearms are precluded from use in primary production. As regards normal licensing provisions, Class A and B firearms are not mentioned at all in relation to primary production. However, special provision is made in relation to persons of 16 years and under 18 years being provided with special access for primary production. Class C firearms are notes (sic) as specifically available, with restrictions. Class D are not mentioned, but are separately restricted solely to professional shooters. Nowhere are Class H firearms mentioned in relation to primary production. That is, just like Classes A & B, Class H firearms are neither specifically endorsed nor precluded for use in primary production. What is stated as regards Class H firearms is in Reg 19(7), where the three most common purposes (Clubs, guarding and collecting) are mentioned, as well as 'such other purpose as is approved by the Registrar.'"

"My function is not to endorse a generic restriction on hand gun licences simply because the Act regulates gun control but to review the Deputy Registrar's decision in this particular case and to explore whether or not it was properly made. Whilst reliance has been placed on an opinion that Mr Gitsham's application was not genuine, no evidence has been presented that would undermine his veracity or the genuineness of his application. There is no reason for me to believe that Mr Gitsham's application for the use of a hand gun on his property is other than for the reasons he has explained (and for the reasons expanded upon by Mr Dodd). The reasons contained in the Deputy Registrar's letters of refusal were scant and utterly devoid of substance. Mr Gitsham was left guessing as to why he was refused his application and so was I. It is not sufficient to merely rely on the general intent of legislation when purporting to exercise a specific power under that legislation. Clearly, the Deputy Registrar could not and did not rely on any of the grounds contained in s.15A to justify the refusal. He was left with the one basis upon which to refuse the application i.e. Pursuant to s.15A sub-s2(a).

'..... The Registrar may only refuse the application if the Registrar is of the opinion that the applicant does not have genuine reason for acquiring a firearm.'"

The learned Magistrate concluded that the Committee, having been advised that Standard Operating Procedure 35 precluded the respondent from obtaining a class H licence, was guided by that advice without inquiring further about the significance and effect of the Standard Operating Procedures on the substantial inquiry about the applicant's genuineness. He said that the Deputy Registrar proceeded with the best of intentions and acted in a way that he believed was consistent with the general spirit and intent of the legislation but that led him to "rubber stamp" the refusal of the application instead of assessing it on its merits. He took the view that the appellant had "an unfettered discretion to authorise the possession and use of [the handgun] for any purpose" and that he had failed to exercise his discretion at all or had exercised it incorrectly. He said that the respondent had a genuine reason for wishing to use a handgun on his property. He rescinded the decision of the Deputy Registrar and made an order that the firearms licence of the respondent be varied to include a classification of a class H firearm, namely the handgun.

1 The learned Magistrate erred in his application and interpretation of the Act and Regulations.

2 In particular, the learned Magistrate erred in applying s 15A(2) of the Act and erred by failing to apply s 12 and s 13 of that Act and Reg 12 of the Regulations in reviewing the respondent's licence application.

It is submitted by the respondent that this appeal is incompetent because there is no appeal, as of right or by leave, from the decision of a Magistrate on the hearing of an appeal from a decision of the Registrar.

S 21D(1) of the Act provides, inter alia, that a person aggrieved by a decision of the Registrar to refuse an application for a licence, or to vary a firearms licence as to a purpose endorsed on the licence, may appeal against that decision to a magistrate sitting in chambers. S 21D further provides:

"(3) The magistrate may, on the hearing of the appeal, exercise one or more of the following powers:

(a) affirm or vary the decision appealed against, or substitute any decision that should have been made in the first instance;

(b) remit the subject matter of the appeal to the Registrar for further consideration;

It is submitted that there is no right of appeal from a decision of a magistrate unless conferred by Statute and that no such right is to be found in the Act. If there is such a right, it is to be found in s 40 of the Magistrates Court Act 1991 which provides:

"40 (1) A party to a civil action (except a minor civil action) may, in accordance with the rules of the Supreme Court, appeal against any judgment given in the action.

(2) If the rules of the Supreme Court provide that an appeal from a judgment of a particular class can only be brought by leave of that Court, the right of appeal is limited accordingly, but in any other case an appeal lies as of right.

(3) The appeal lies to the Supreme Court constituted of a single Judge but the Judge may (if he or she thinks fit) refer the appeal for hearing and determination by the Full Court.

(4) If jurisdiction to try the civil action is created by statute and the terms of the statute are such as to indicate that Parliament did not intend that there should be an appeal from a decision made in the exercise of that jurisdiction, that intention prevails.

(5) A right of appeal conferred by this section extends to a legal practitioner, witness or other person against whom an order under section 37 is made."

"Civil action" is defined in s 3 of the Magistrates Court Act as meaning an action or proceeding brought in a civil division of the Court being the Magistrates Court of South Australia, "Judgment" is defined as meaning a judgment, order or decision and includes an interlocutory judgment or order.

The submission is that the provisions of the Firearms Act indicate that Parliament did not intend that there should be an appeal from the exercise of the jurisdiction under s 21D. It is suggested that there is support for that submission in observations of the authors of Cannon and Kleinig, Magistrates Court, South Australia, at 5573 para 7.160 where, in discussing a review of a Minor Civil Action and s 40(4), they say:

""It would appear that there is no intention that there be an appeal against decisions made under the Births Deaths and Marriages Registration Act 1996 (SA), the Firearms Act 1977 (SA), the Motor Vehicles Act 1959 (SA), the Unclaimed Goods Act 1987 (SA) and the Warehouse Liens Act 1990 (SA)."

The Act is silent as to whether there is an appeal from a decision of a magistrate. There is no provision such as is found in s 38(8) of the Magistrates Court Act which provides that a decision of the District Court, on a review of a magistrate's judgment in a minor civil action, is final and not subject to appeal. S 10(1) of the Magistrates Court Act provides that the Magistrates Court has any jurisdiction conferred on it by Statute. The appeal by the respondent to a magistrate from the decision of the Deputy Registrar is a jurisdiction conferred by Statute.

The proceedings in the Magistrates Court brought by the respondent constituted a civil action pursuant to s 3 of the Magistrates Court Act as it is a proceeding brought in the Civil Division of the Magistrates Court. The decision of the learned Magistrate is within the meaning of "judgment" in s3 of the Magistrates Court Act. A right of appeal is granted by s 40 of that Act. In my view there is no provision in the Act which indicates that Parliament did not intend that there should not be an appeal from the jurisdiction exercised by the Court and consequently there is a right of appeal pursuant to s 40(1). There is no provision in the Magistrates Court Act to deny an appeal to the Supreme Court.

Whilst it may be accepted that there is no right of appeal from a court such as the Magistrates Court unless conferred by Statute, The Queen v Justices of London [1895] 1 QB 616 and Poole-Blunden v the Registrar of Motor Vehicles (1984) 34 SASR 591, an appeal lies from the judgment of a magistrate exercising jurisdiction under the Firearms Act, because that right is given by s 40(1) of the Magistrates Court Act.

In Johnson v Registrar of Firearms [2001] SASC 51; (2001) 79 SASR 353, Gray J accepted that an appeal lies to this Court by virtue of s 40 of the Magistrates Court Act, but the report of that decision does not indicate that any issue was raised before him about that matter.

I now turn to consider the grounds of the appeal.

It seems clear from the reasons for judgment of the learned Magistrate that he did not regard the appeal to him as a hearing de novo. He was concerned to identify errors on the part of the Deputy Registrar which I have mentioned. However, it appears that he conducted the hearing of the appeal as if it was a hearing de novo because he heard such witnesses as the parties chose to call and to receive such documentary evidence as the parties adduced. The appellant complains that the learned Magistrate erred in his approach to the appeal in this respect. He should have considered the matter afresh based upon the evidence before him.

There is substance in this complaint. Categorization of the true nature of an appeal was discussed comprehensively by Cox J in Wigg v Architects Board of South Australia (1984) 36 SASR 111. An appeal de novo is where the appeal court hears the matter afresh and the parties begin again and call their witnesses. The Judge who hears such an appeal will determine the question for himself upon the material before him, and will not be limited in any way by the decisions that have been made by the decider at first instance: 113. See also Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 per Mason J at 620-621. In Johnson v Registrar of Firearms Gray J concluded that the nature of the appeal to the Magistrate was an appeal de novo.

As the learned Magistrate approached the appeal upon the basis of having to decide whether the Deputy Registrar had erred when making his decision, he did conduct the hearing of the appeal by hearing all of the evidence but he did not consider the matter afresh. Whilst he made that error, I have approached this appeal by deciding whether he was in error in reaching his decision on the material before him.

The learned Magistrate was in error in that he decided the appeal on the basis of the criteria set out in s 15A of the Act. As has been mentioned, s 15 of that section relates to a permit authorising the acquisition of a firearm. The learned Magistrate specifically referred to s 15A(2)(a) which provides:

(2) Subject to this Act, where the application is for a permit to acquire a class B or class H firearm and the application is properly made the Registrar may only refuse the application if -

(a) the Registrar is of the opinion that the applicant does not have a genuine reason for acquiring the firearm."

The respondent was not seeking a permit under s 15. His application was made under s 12 for, in effect, a class H firearms licence. It must be acknowledged that the Deputy Registrar seems to have confused the criteria for such a licence as in the letter of refusal he used the language of s 15A. He wrote:

"Pursuant to s 15A of the Firearms Act, 1977 I am satisfied that you do not have a genuine reason for the use of a H class firearm for primary production purposes."

The correct criteria upon which the application had to be considered are to be found in s 12. The only criteria in that section applicable to the respondent's application is to be found in s 12(6)(a)(vi). The criteria in s 12(6)(a)(iv) and (v) have no application because it is not suggested that the respondent could not use a handgun to destroy animals. The issue was whether to grant the application would, in the Deputy Registrar's opinion, be contrary to the public interest. In the circumstances of the present case, I do not think the genuineness of the application is to the point, although it may be said that it could not be in the public interest to grant an application to a person who is not genuine in making the application.

As has been seen, Reg 12 provides that the purpose or purposes for which the firearm may be used by the holder of the licence must be endorsed by the Registrar and use in relation to the carrying on of primary production is one such purpose. This purpose is not to be found in Reg 19(7) which deals with the conditions upon which the firearm may be used.

Ms Cole, who appeared for the appellant, contended that the absence of this purpose in Reg 19(7) is significant. Although Reg 12 applies to all firearms and considered alone suggests that a class H licence may be issued for the purpose of carrying on the business of primary production, Reg 19(7), which deals specifically with a class H firearm, a handgun, excludes such a business unless it is another purpose which is approved by the Registrar: R19(7)(d). Ms Cole submitted that having excluded the business of primary production, it could not be one of the other purposes which could be approved by the Registrar.

I have mentioned Standard Operating Procedure 36. I do not think this guideline is of any assistance. First, it was prepared to assist those administering and carrying out functions under the Act and relates to applications for a permit to acquire firearms. Secondly, it may not be used to construe Reg 19(7). That task must be undertaken having regard to the wording of the Regulation and its purpose in the context of the Regulations as a whole. However, it does appear that for the purpose of applications to acquire a firearm, Procedure 36 contains guidelines for consideration of whether the applicant has a "genuine reason". The Procedure refers to Regulations, including Reg 12 and Reg 9(7). There is no Reg 9(7) and I expect that there is a misprint in the Procedure, it being intended to refer to Reg 19(7).

I must say that this guideline is confusing because the appellant would not be concerned with conditions of use of firearms when considering an application to acquire a class H firearm.

Mr Kerin, who appeared for the respondent, submitted that there is no restriction as to the type of firearm which may be used in carrying on the business of primary production. There is no such restriction in Reg 12. However, there is the restriction for which Ms Cole contends.

There is a special type of licence for handguns. Reg 12 establishes the purposes of licences without reference to handguns and includes for the purpose of carrying on the business of primary production. However, as has been seen, Reg 19(7), which deals only with class H licences, provides that a handgun may only be used for the purposes therein stated, and carrying on the business of primary production is not included. Because it is specifically included in Reg 12 and is not included in Reg 19(7), the only regulation dealing specifically with the use of handguns demonstrates a clear intention that they are not to be used in carrying on the business of primary production. Reg 19(7)(d), which provides for a condition of a class H licence that the handgun may be used for such other purpose as is approved by the Registrar, does not, in my view, enable the Registrar to approve of a purpose which has been excluded by the Regulation. It is unnecessary for present purposes to consider what "other purpose" could be approved by the Registrar, but it could not be a purpose which is excluded by Reg 19(7). The learned Magistrate was incorrect in concluding that the issue was whether the applicant had a "genuine purpose" for the use of a handgun on his property.

In my view, there is no basis to grant a class H licence, or endorse an existing firearms licence with a class H endorsement, when the purpose for the use of the handgun is in the carrying on of the business of primary production. It appears that the Registrar and the Deputy Registrar may take a different view regarding large pastoral properties, but there is no warrant for such a view of the Regulations.

It follows that the Deputy Registrar was correct in refusing the application of the respondent and the appeal to the learned Magistrate should have been dismissed.

In reaching this conclusion, I have not found it necessary to decide whether the respondent needs a handgun for use on his property. I have read a transcript of his evidence and the evidence of all of the other witnesses. The respondent has a relatively small property and consequently when working on the property is in reasonably close proximity to the house where he keeps his firearms when not in use. Having carefully considered his evidence and the evidence of Mr Dodd, I have not understood why a handgun is necessary to destroy large animals. It is not suggested that it is necessary to destroy small animals, including vermin. If he does not carry a rifle or shotgun with him as he moves about the property and he sees an animal so distressed that it must be killed without delay, he may go to his house, collect a firearm, return to the animal and shoot it. It is to be expected that the circumstances in which immediate destruction of the animal would be desirable would occur rarely and that he would require and seek veterinary advice before doing so in most cases. It is to be expected that in most cases the destruction of the animal could be carried out by the veterinary surgeon.

As to the concern of safety risk by ricochet of a projectile, it would seem a reasonably simple precaution to ensure that a bystander could not possibly be accidentally shot. Usually a bystander could, and would, stand behind the shooter. If accuracy is a problem with a rifle due to the attachment of a telescopic sight, a firearm should be available at a reasonable cost without such a sight.

As I understand the position, a live large animal may be shot and removed by producers of certain types of food at the request of the landowner. However, as there was no evidence before the learned Magistrate to that effect, I have not had regard to that matter.

As I have mentioned, the evidence of Mr Flaherty, if accepted, indicates that the use of a handgun by the respondent is no more than a matter of convenience. The evidence of Mr Chandler was to much the same effect.

I did not find the reasons given by Mr Dodd to use a handgun for occupational and safety reasons to be convincing. With respect to him, they seem, in the circumstances, to be more theoretical than practical. There was no evidence to suggest that other primary producers require or desire a handgun to shoot large animals.

Having considered all of the evidence, I took the view that when using the expression "genuine purpose", the Deputy Registrar meant that the respondent had no real need for a handgun.

As I have said, it has not been necessary to reach a conclusion about those matters in order to determine the outcome of the appeal.

If I am wrong in my interpretation of Reg 12 and Reg 19 and the Registrar may issue a class H licence or vary a firearms licence to include a class H firearm, namely a handgun for use on a rural property being a purpose approved by him (Reg 19(7)(d)), there is no ground to set aside his decision on the application in the present case. He appears to have applied Number 36 of the Standard Operating Procedures in relation to a permit to acquire a handgun as if it applied to an application for a firearms licence or to vary such a licence to include a handgun.

As the scheme of the Act is to provide for the safety of the public, it may readily be acknowledged that it is in the interests of public safety to restrict the availability and use of handguns. It is acknowledged in the Standard Operating Procedures that in some very limited circumstances a handgun may be required on a large rural station property. Even if the use of a handgun is appropriate on such a property, and is permitted by the Regulations contrary to the view I have expressed, no sound reason for the respondent to require a handgun for use on his property is established in the evidence and the Deputy Registrar was correct in his decision refusing the application.

The appeal is allowed and the decision made by the learned Magistrate is set aside. Also, the learned Magistrate ordered that the appellant pay to the respondent costs in the amount of $9,500. There has not been an appeal against that order and I shall hear the parties as to whether it should stand.