Wallin v Commissioner of Police, NSW Police Force

NCAT Appeal Panel|2021-09-24

REASONS FOR DECISION

Mr Graham Wallin has appealed under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against conditions imposed on a firearms licence.
Mr Wallin had held a firearms licence since 1990. In 2010 he was requested to provide a psychiatric assessment, following concerns raised by Police after attending a neighbourhood dispute. His licence was revoked on 10 November 2010. A Category ABH firearms licence was issued on 15 July 2011, and renewed on 9 September 2016, valid until 9 September 2021. On 21 March 2019 the firearms licence was suspended, on the ground that it was not in the public interest as there were concerns for Mr Wallin's mental health. On 6 August 2020 a delegate of the respondent Commissioner revoked the firearms licence under s 24(2)(a) and (d) of the Firearms Act 1996, stating concerns for public safety because of Mr Wallin's mental health and personality issues, and finding that he was not a fit and proper person to possess a firearms licence and it was not in the public interest for him to possess firearms.
In its decision published on 2 June 2021 the Tribunal set aside the decision to revoke the firearms licence, and imposed conditions on the licence relating to storage of firearms: Wallin v Commissioner of Police [2021] NSWCATAD 150.

Grounds of Appeal

The Notice of Appeal was expressed in terms of an application for leave to appeal. In the grounds stated in the Notice of Appeal and the submissions made in the appeal the appellant raised various questions of law in addition to leave grounds. The grounds of appeal can be summarised as follows: 1. The Tribunal relied on irrelevant material as the conditions were based on untested speculative information provided by the Commissioner that was subject to orders under s 59 of the Administrative Decisions Review Act 1997 (the ADR Act) and s 64 of the NCAT Act; an irrelevant risk assessment; and irrelevant alleged neighbour disputes; 2. The Tribunal failed to take into account a relevant consideration, as the conditions decision is not a good decision; 3. The Tribunal did not accord procedural fairness, in relying on untested confidential information; 4. The law was not applied correctly: because there was no disclosure of information pursuant to s 79 of the Firearms Act there was no basis in law to suspend or revoke his licence, and relevant legislative procedures were not taken into account; 5. The conditions were unreasonable and disproportionate; 6. The decisions to suspend and revoke the licence were not relevant to safe keeping and storage requirements and Mr Wallin has not breached any firearm storage provisions, and the Commissioner has not given full grounds and reasons as to why he has to incur the imposition and punishment of ongoing costs by the conditions.

Reply to Appeal

The Commissioner opposed leave being granted, stating that Mr Wallin had not demonstrated more than a challenge to an issue of fact, there was no injustice that was reasonably clear, there was no factual error unreasonably arrived at, and the Tribunal had not gone about the fact finding process in an unorthodox manner.

Appeal hearing

Mr Wallin provided written submissions on 13 August 2021.
The Commissioner provided written submissions on 8 September 2021, and a bundle of documents including the documents filed and served in accordance with s 58 of the ADR Act, the Commissioner's application for an order under s 59 of the ADR Act, and the evidence and submissions before the Tribunal.
At the hearing of the appeal the Commissioner's representative advised that he had obtained a copy of the sound recording of the Tribunal hearing, however that disc was blank, and if a transcript of the hearing was required another sound recording would be requested. Mr Wallin stated that he had been compiling a transcript which was about 80% completed.
During the hearing of the appeal the Appeal Panel clarified with the parties two matters relating to the hearing below of relevance to the appeal. First, Mr Wallin agreed with the Commissioner that during the course of the Tribunal hearing the Member went through each of the incidents and complaints summarised at paras [3] and [4] of the decision, and invited Mr Wallin to respond. Secondly, the Commissioner's position was that he had not requested the imposition of the conditions, and his representative (who had appeared at the hearing below) could not recall it being raised by the Tribunal. Mr Wallin agreed that there was no mention of conditions before the Tribunal below. In circumstances of the agreement of the parties as to what took place during the hearing below, the Appeal Panel did not consider it necessary to ask the parties to provide a transcript of that hearing.

Mr Wallin's submissions

Mr Wallin submitted that the Tribunal placed too much weight on the neighbour disputes. He does not get involved in neighbour disputes, he puts all his concerns in writing; the neighbours may dispute matters but he does not. Mr Wallin submitted that there was no power for the revocation in the first instance, as the Firearms Registry had not followed the correct procedure. His concern is with the conditions imposed by the Tribunal, as the cost of storing his firearms other than at his residence is prohibitive. He has five safes for different types of firearms. The club does not store firearms; the only friend who he trusts who has a safe lives less than 200m away; and everyone else lives a long way away so it is impractical to store firearms with them. He has friends and family who visit who may have firearms in their vehicles. The conditions do not eliminate the wrongful conduct of other people.

Commissioner's submissions

In his written submissions the Commissioner submitted that the Tribunal did not make any error of law in deciding to impose conditions on Mr Wallin's Category ABH firearms licence; Mr Wallin requires leave to appeal on other grounds, but has not provided adequate reasons as to why leave should be granted; and the appeal should be dismissed.
The Commissioner submitted that the power under s 19 of the Firearms Act to impose a condition on a licence is discretionary, and the discretion should be exercised so as to promote the principles and objects of the Firearms Act. The Tribunal has acknowledged that restrictions imposed by special condition should not go further than is required for the protection of public safety (Mulligan v Commissioner of Police [2020] NSWCATAD 272). Similar conditions to those imposed in this matter have been imposed by the Firearms Registry and upheld by the Tribunal in cases where there is a risk to public safety arising from an applicant's living situation, particularly if the conduct or criminal history of a third party creates a risk or where an applicant has a history of involvement in disputes with third parties (relying on Sheehan v Commissioner of Police [2017] NSWCATAD 232; Tolley v Commissioner of Police [2006] NSWADT 149; Jubian v Commissioner of Police [2019] NSWCATAD 70; Prevetera v Commissioner of Police [2021] NSWCATAD 133).
The Commissioner noted that he did not, in the proceedings before the Tribunal, request that the conditions the subject of the appeal be imposed. The Commissioner's position at the hearing below was that the decision to revoke the licence should be affirmed, contending that Mr Wallin's behaviour over a period of 25 years involving numerous disputes with neighbours resulting in complaints to Police suggested that he did not have the ability to deal reasonably with disputes that arise in the future. The Tribunal agreed with that submission and as a consequence considered it appropriate to impose the conditions to effectively remove the firearms from the neighbourhood. On the appeal the Commissioner submitted that the conditions seek to deal with a concern that there will be ongoing disputes between the applicant and his neighbours which necessarily create a risk to the public safety within the context of firearms possession; and the conditions are therefore reasonable and proportionate to the risks identified by the Tribunal.
The Commissioner submitted that Mr Wallin is easily able to inform any visitors who might lawfully possess firearms of the requirements of the conditions and ensure that no firearms are to be stored at his premises. Mr Wallin is not a licensed firearms dealer or collector and so the storage of firearms other than his own at his property is not a factor that should outweigh the appropriateness of the conditions being imposed to address the Commissioner's and the Tribunal's concerns. Any reasonable cost incurred as a consequence of firearms ownership is ultimately a matter for the appellant should he wish to retain his firearms licence.
The Commissioner submitted that it is also open to a licence holder to seek that conditions be removed from their licence, particularly if the circumstances giving rise to their imposition are no longer relevant.
The Commissioner submitted that the Appeal Panel should not accept the contention that the Tribunal relied on irrelevant material. It is clear from the reasons that the Tribunal did not take into consideration any material that was subject to orders under s 59 of the ADR Act or s 64 of the NCAT Act. The Tribunal gave significant weight to Mr Cook's report provided on behalf of Mr Wallin, and any allegations regarding his mental health do not appear to have resulted in the decision to impose the conditions. No disclosure by a health professional was made pursuant to s 79 of the Firearms Act before the licence was revoked and so the contention that any reliance or otherwise on such a disclosure was placed is misconceived.
The Commissioner submitted that he is not required to provide reasons for the conditions where they were imposed by the Tribunal following a hearing and consideration of the evidence and submissions made. The reasons why the conditions were imposed by the Tribunal were articulated at para [63] of the Tribunal decision, and the Commissioner supports those reasons.
The Commissioner contended that the finding that Mr Wallin had in fact been involved in neighbourhood disputes was available to the Tribunal and it did not mistakenly rely on irrelevant material in imposing the conditions.
The Commissioner submitted that the fact that Mr Wallin's licence had previously been suspended and revoked did not give rise to any administrative or procedural step that results in any abuse of process; and Mr Wallin was afforded procedural fairness in being able to respond to the Commissioner's decision in 2020 to revoke his firearms licence. The contention that due process and procedure was not followed on the basis that proper steps were allegedly not followed when his licence was revoked in 2010 is therefore misconceived.

Consideration

This is an internal appeal. Internal appeals may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) NCAT Act.
As noted above, the grounds of appeal as stated in the Notice of Appeal are expressed in terms of leave grounds. The appellant is not legally represented, and the Appeal Panel must determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]. To the extent that Mr Wallin contends that the Tribunal had regard to irrelevant considerations, or failed to have regard to relevant considerations, failed to accord procedural fairness, failed to apply the law correctly, or failed to provide adequate reasons, those grounds would raise questions of law, on which leave to appeal would not be required: Prendergast at [13].
In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [84] that 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.

Consideration

The Category ABH firearms licence held by Mr Wallin was revoked under s 24(2)(c) of the Firearms Act, which provides that the Commissioner may revoke a firearms licence if of the opinion that the licensee is no longer a fit and proper person to hold a licence, and s 24(2)(d), which provides that a licence may be revoked for any other reason prescribed by the Regulation, relying on cl 20 of the Firearms Regulation 2017 which provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it.
The Tribunal set aside the decision to revoke the licence and imposed conditions, pursuant to the power conferred by s 19 of the Firearms Act: 19 Conditions of licence (1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose. …
The power to impose conditions is discretionary. The Tribunal's reasons for decision explain that having concluded that there was virtually no risk to public safety if Mr Wallin was granted a firearms licence, and that he was a fit and proper person to hold a firearms licence and it was not contrary to the public interest for him to do so, the Tribunal considered that in the context of the likelihood of ongoing neighbourhood disputes it was appropriate to impose a condition to effectively remove the firearms from the neighbourhood. In doing so the Tribunal was responding to what it considered was required for protection of public safety, consistent with the objects of the Firearms Act as stated in s 3.
The Appeal Panel concludes that there was power to impose the conditions on the firearms licence, and that no error has been demonstrated in the reasoning of the Tribunal as to why it was appropriate to do so in the circumstances. Rather, the issue is whether in deciding to impose the conditions the Tribunal accorded procedural fairness. Mr Wallin raised in his grounds of appeal what he considered to have been a failure to comply with procedural fairness on the part of the Commissioner; however the Appeal Panel is of the view that in imposing the conditions without having raised that possibility with the parties the Tribunal failed to accord procedural fairness.
Procedural fairness does not require a decision maker to expose his or her mental processes or provisional views to comment before making a decision: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 592. Procedural fairness does not require a decision maker to provide a "running commentary" on an applicant's prospects of success: Minister for Immigration & Multicultural Affairs; ex parte Miah (2001) 206 CLR 57, at 69 (Gleeson CJ and Hayne J). However, procedural fairness does require that the decision maker identify to the person affected any issue critical to the decision that is not apparent from its nature or the terms of the legislation under which it is made, and any adverse conclusion that would not obviously be open on the known material: Alphaone at 592.
Neither the Commissioner nor Mr Wallin proposed the imposition of conditions, and it was common ground that that possibility was not raised by the Tribunal during the hearing, or afterwards.
The Commissioner's position on the appeal was that similar conditions have been imposed by the Firearms Registry and upheld by the Tribunal in cases where there is a risk to public safety arising from an applicant's living situation. Had the issue been raised, the Commissioner would have made submissions as to the change in storage arrangements addressed in condition (4), as cl 17 of the Firearms Regulation deals with change in storage address and provides a 14 day period and requires provision of a prescribed form.
Mr Wallin's position was that he would have put the submissions he has made in the appeal, namely that the conditions impose a cost and inconvenience to him, as his club does not store firearms and he has to travel some 50-60km to friends who have a gun shop and can store his firearms.
The Appeal Panel concludes that the Tribunal failed to accord procedural fairness in not alerting the parties to the possibility that conditions may be imposed, either in the course of the hearing or after the decision was reserved, if the decision to revoke the licence were to be set aside. In the context of the Commissioner's position below that the decision to revoke the licence should be affirmed, and Mr Wallin's position as to the impact on him if the conditions were to be imposed, the Appeal Panel cannot be confident that it would have made no difference to the decision to impose the conditions had the parties been provided an opportunity to make submissions on that issue. The denial of procedural fairness deprived the parties of the possibility of a different outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54.
The Appeal Panel concludes that the failure to accord procedural fairness on that issue was an error on a question of law, and the appeal should be allowed.

Other grounds of appeal

That conclusion means that the other grounds of appeal can be shortly dealt with.
The Appeal Panel concludes that the Tribunal did not have regard to irrelevant considerations, or fail to have regard to relevant considerations. The Tribunal considered the records of complaints made by Mr Wallin about his neighbours and the complaints that had been made about him, providing Mr Wallin with an opportunity to respond. The text of the decision confirms that the Tribunal did not take into account any of the material subject to orders made under s 59 of the ADR Act and s 64 of the NCAT Act, to which Mr Wallin had not been able to respond. The Tribunal gave significant weight to the report by Mr Cook which was provided by Mr Wallin as a risk assessment regarding his suitability to hold a firearms licence, being satisfied that Mr Cook was aware of the general nature of the neighbourhood disputes in reaching his conclusions. The conclusion that Mr Wallin had in fact been involved in neighbourhood disputes over the preceding 25 years, and that that behaviour suggested that he did not have the ability to deal reasonably with neighbour disputes that will arise in the future, was open to the Tribunal, and the reasons for reaching that conclusion were clearly articulated in the decision.
The Appeal Panel agrees with the Commissioner that the procedures adopted in the Commissioner's decision in 2010 to revoke the firearms licence then held by Mr Wallin, including whether or not there was an opinion provided under s 79 of the Firearms Act or whether sufficient reasons were given for that decision, are not relevant to the administrative review of the revocation decision made in 2020. The task of the Tribunal under s 63 of the ADR Act on review of the 2020 revocation was to determine the correct and preferable decision having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. The Appeal Panel can discern no error in the Tribunal's identification of the applicable law or the relevant principles derived from the authorities, or in the application of that law to the issues for determination, namely whether the applicant was a fit and proper person to hold a firearms licence and whether it was contrary to the public interest for him to continue to hold one.

Disposition of the appeal

The Appeal Panel has concluded that there was a denial of procedural fairness in the failure to alert the parties to the possibility that conditions might be imposed and to invite submissions on that issue, either during the course of the hearing or while the decision was reserved. That was an error on a question of law; leave to appeal is not required and need not be considered.
The Appeal Panel would have power to reconsider the decision itself, pursuant to s 81(1) and (2) of the NCAT Act. However, given the complex factual history, the Appeal Panel is of the view that it is preferable, and consistent with the guiding principle expressed in s 36(1) of the NCAT Act, that the decision under appeal be set aside and the matter remitted to the Tribunal for reconsideration of the issue of whether conditions should be imposed on the appellant's storage of firearms. Neither party raised any objection to a reconsideration before the same Tribunal member, and the Appeal Panel is of the view that in the context of the complex factual history and the limited extent of the reconsideration required, the matter should be determined by the Tribunal as previously constituted.

Orders

The Appeal Panel orders: 1. The appeal is allowed. 2. The decision under appeal is remitted for reconsideration by the Tribunal as previously constituted of the issue of the imposition of conditions with such further evidence and submissions as the Tribunal allows.

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: 18 November 2021

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