Thomas v Commissioner of Police, NSW Police Force

Should we accept the appeal even though it was lodged late?

1. An internal appeal must be lodged "within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later)": Civil and Administrative Tribunal Rules 2014, cl 25(4)(c). The Appeal Panel may extend the time: NCAT Act, s 41. The considerations that the Tribunal must take into account when deciding whether to extend time include the length of the delay, the reason for the delay, the merits of the appeal and the extent of prejudice, if any, that the Commissioner would suffer if an extension is granted: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
2. Mr Thomas was notified of the decision on 31 August 2018 and he appealed on 1 November 2018. He had about a month to lodge an appeal after he received the decision but did not lodge it for a little more than two months. That is not a particularly lengthy delay.
3. The reason Mr Thomas gave for lodging the appeal late was that "the time to lodge the appeal was inadequate to assess the chances of success given the confidential nature of the evidence presented at first instance raised doubts about the merits of any appeal." Mr Thomas is a shift worker with three children and said that appealing was a financial burden. He added that it was difficult to assess the strength of the appeal because several paragraphs of the Tribunal's reasons for decision are confidential and have not been published. Finally, Mr Thomas inferred that because the Tribunal had taken over six months to deliver the decision, the confidential evidence must have been equivocal.
4. We do not accept that it can be inferred that the delay in delivering the reasons suggests anything about the nature of the confidential evidence. Nor are Mr Thomas' other reasons for the delay particularly persuasive. However, we appreciate that appealing can be expensive and that it is not possible to assess the merits of an appeal when the decision contains confidential reasons. Refusing to extend time would deny Mr Thomas the benefit of the Appeal Panel determining whether the Tribunal has made an obvious error of law in those confidential paragraphs. That would be unjust in circumstances where the delay is not particularly lengthy and there is no prejudice to the Commissioner of Police in extending time.

Which grounds of appeal raise questions of law?

1. The ground of appeal based on inadequate reasons raises a question of law. In Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at [443]-[444] Meagher JA set out three elements of adequate reasons for decision. In summary, they are that a judge, or tribunal member, should "refer to relevant evidence" that is "important or critical to the proper determination of the matter"; "set out any material findings of fact" and "provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found".
2. The grounds of appeal based on the weight the Tribunal attributed to certain evidence does not give rise to a question of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at [155]-[156].

Did the Tribunal err by failing to provide adequate reasons for its decision?

Findings about Mr Thomas' association with an OMCG

1. At [18] the Tribunal set out the Commissioner's submission that, "the open evidence demonstrates that Mr Thomas, by his own admission, is an 'associate' of the Gladiators Outlaw Motorcycle Group (OMCG)." At [19], the Tribunal quoted part of Senior Constable Jamieson's statement about a conversation he says he had with Mr Thomas including the following exchange: I said: "You weren't with the Glads today?" The Applicant said: "No, I don't roll with them, I'm just an associate."
2. At [20] the Tribunal set out the following further evidence given by Senior Constable Jamieson: I said: In regards to being an associate, are you a nom in the club? The Applicant said: Na just some mates that I went to school with ... I did think, at first, about joining the Glads a few years ago, as a kid, but I thought, not for me.
3. The Tribunal recorded at [21], that Mr Thomas denied that he is a member of an OMCG and that he did not recall a conversation with police officers that he was 'attempting to nom up." The meaning of that expression was not explained in the Tribunal's reasons.
4. Mr Thomas submitted that the Tribunal incorrectly interpreted the word "associate" and "over relied" on the evidence the Tribunal set out at [18] - [21] of the decision. That submission raises two questions of law: did the Tribunal make material findings of fact about Mr Thomas' alleged association with an OMCG and did the Tribunal give adequate reasons for those findings?
5. The Tribunal's finding about the evidence it set out at [18] - [21] and in the first sentence of [37], a confidential part of the reasons. The Commissioner agreed, in a confidential session in the Appeal Panel proceedings, that the Tribunal's finding should be disclosed because it does not contain any confidential information. Rather, it recites Mr Thomas's open evidence and makes a material finding of fact about the level of his association with an OMCG: Mr Thomas denies that he told Mr Jamieson that he was seeking to "nom up" or that he was an "associate" of an OMCG. The Tribunal is satisfied that while there is no evidence that Mr Thomas has taken any steps to formally join a OMCG, in the public interest, the evidence taken together at least demonstrates that he is in a vulnerable position to be associated with an OMCG.
6. It is apparent from this sentence that the Tribunal made a material finding of fact that Mr Thomas has never taken any formal steps to join an OMCG. In that respect, the Tribunal provided adequate reasons for its decision.
7. The reasons for decision do not disclose the weight the Tribunal gave to the evidence about Mr Thomas' association with an OMCG. The Tribunal said, at [38], that it took into account "all the evidence before this Tribunal, including the confidential evidence" in reaching the conclusion that "he was not fit, in the public interest, to possess a firearm": Firearms Act, s 73(1). Failing to indicate how much weight the Tribunal gave to certain evidence does not give rise to a question of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at [155]-[156]. If that was a ground of appeal on a question of law, it is not made out.

Findings about allegations justifying AVOs

1. The Tribunal found at [32] that: Both his significant relationships have resulted in provisional or interim apprehended violence orders for the protection of his partners. While these were only provisional or interim, they reflect at very least an inability for Mr Thomas to extract himself from relationships that will result in dispute.
2. Mr Thomas submitted that the Tribunal had found that "the relationship issues, and the AVOs that related to them, were significant in the findings." That is not how we interpret the Tribunal's reasons. The Tribunal did not find that the "relationship issues" were significant. We accept that the Tribunal did not indicate the weight that it gave to the finding at [32], but, for the reason we have given, its failure to do so does not give rise to a question of law.
3. Mr Thomas also submitted that the Tribunal did not adequately address his evidence about various incidents between himself and his former partners. As we have said, adequate reasons must refer to relevant evidence that is "important or critical to the proper determination of the matter": Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443..
4. The Tribunal did refer to Mr Thomas' evidence about domestic disputes at [29]. The Tribunal wrote that: Mr Thomas stated that his first partner was experiencing post-natal depression after the birth of their first child and became more angry and he did not recognise that this was post-natal depression. An altercation over a fish tank led to police attendance and the issuing of an interim AVO. Disputes followed and the relationship ended. Mr Thomas does not have any current contact with his former partner or their son.
5. Mr Thomas did not identify the evidence that he gave, but to which the Tribunal did not refer, and which was "important or critical to the proper determination of the matter". It follows that the reasons are not inadequate in that respect.
6. We acknowledge that it is difficult for Mr Thomas to identify an error of law when he has not had access to the Tribunal's confidential reasons. The Commissioner agreed that the Appeal Panel is obliged to read the confidential reasons and to identify any obvious error which the Tribunal has made. We have read those reasons and have concluded that there is no obvious error of law.

Should we give permission for Mr Thomas to appeal on grounds other than a question of law?

1. The Appeal Panel has set out the circumstances where it may be appropriate to grant leave to appeal in Collins v Urban [2014] NSWCATAP 17 at [84]: [84] The general principles derived from these cases can be summarised as follows: 1. 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]; 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.
2. Mr Thomas did not refer to any of these principles in his submissions. Rather, he acknowledged his "criminal antecedents" and submitted that they were "of such low objective seriousness that no further inference should be attached". We have assumed that Mr Thomas would argue that the making of a firearms prohibition order in this case comes within the third category set out above - "an injustice which is reasonably clear … so that it would be unjust to allow the finding to stand." However, we are not persuaded that the Tribunal's reasoning or conclusion falls into that category. There is no clear injustice in this case.
3. Two of Mr Thomas' grounds of appeal were about the weight that the Tribunal gave to parts of the evidence. The Tribunal found that the various provisional and interim apprehended violence orders "reflect at very least an inability for Mr Thomas to extract himself from relationships that will result in dispute." While the Tribunal did not indicate the weight that it gave to this finding, we read the Tribunal's decision as giving little weight to this matter. It was the confidential material that was of most significance. Again, we are not persuaded that the Tribunal's reasoning or conclusion discloses a clear injustice.
4. Mr Thomas compared his situation with another case where one of the issues was the extent of an applicant's association with OMCGs - Azzopardi v Commissioner of Police, NSW Police Force [2013] NSWADT 2015. In that case the Tribunal set aside the Commissioner's decision to make a firearms prohibition order. Mr Thomas' situation cannot be compared with Mr Azzopardi's because the Tribunal's decision in this case was not based solely on the open evidence about OMCG. There was also confidential material which was significant to the Tribunal's decision.
5. Taking into account all the circumstances, we decline to give permission for Mr Thomas to appeal on grounds other than a question of law.

Orders

1. The time to lodge the appeal is extended to 1 November 2018.
2. Leave is refused for the appellant to appeal on grounds other than a question of law.
3. The appeal is dismissed.
4. The Tribunal's order prohibiting the publication of any part of any paragraph of the Tribunal's reasons which commenced with the words [NOT FOR PUBLICATION] is varied so that it does not apply to the first sentence of paragraph 37 of Thomas v Commissioner of Police, NSW Police Force [2018] NSWCATAD 202.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2019