Lee v Commissioner of Police, NSW Police Force

1. [1]

   By an amended summons filed on 15 August 2017 Stephen Gary Lee (“the plaintiff”) seeks leave to appeal from a decision of the Appeal Panel (“the Appeal Panel”) of the New South Wales Civil and Administrative Tribunal (“the Tribunal”) delivered on 28 October 2016. On that occasion the Appeal Panel allowed an appeal by the NSW Commissioner of Police (“the first defendant”) against an earlier decision of the Tribunal constituted by a Senior Member. The effect of the decision of the Appeal Panel was to confirm the decision of the first defendant to refuse the plaintiff’s applications for a firearms license and a high calibre pistol permit, and to revoke a paintball games permit which had previously been issued to him, pursuant to the Firearms Act 1996 (NSW) (“the FA”) and/or the Firearms Regulations 2006 (NSW) (“the FR”).

2. [2]

   The amended summons is supported by the evidentiary material contained in a four volume court book which was tendered with the consent of the first defendant.

3. [3]

   The proceedings were commenced by the filing of a summons on 2 December 2016, which was 5 days after the expiration of the applicable limitation period. Accordingly, the plaintiff requires an extension of time. In that respect the plaintiff relies on a notice of motion filed on 2 December 2016, supported by an affidavit of Patrick John Conaghan, solicitor, of the same date, along with his own affidavit of 22 March 2017 and an affidavit of David Price of 22 March 2017. That evidence explains the delay in commencing the proceedings. I am satisfied that an order extending time in which to commence proceedings is appropriate.

4. [4]

   Further, in light of s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the Act”) the plaintiff requires a grant of leave from this Court to bring his appeal. It was the agreed position of the parties that the issue of leave should be determined having regard to my conclusions as to the strength or otherwise of the plaintiff’s case.

5. [5]

   The first defendant relies on a notice of contention dated 7 September 2015 in which he contends that the decision of the Appeal Panel should be affirmed on grounds other than those upon which the Appeal Panel relied.

THE FACTS

1. [6]

   The plaintiff made application for, or alternatively held, various licenses and permits pursuant to the FA and the FR as well as the Weapons Prohibition Act 1998 (NSW) (“the WPA”). On or about 22 October 2013, the first defendant made a determination to:

2. [7]

   The plaintiff applied to the Tribunal for a review of these determinations. The Tribunal set aside the determinations in [6](i), (ii) and (iii) above, but confirmed those that remained: Lee v Commissioner of Police, NSW Police Force [2015] NSWCATAD 254.

3. [8]

   The first defendant appealed to the Appeal Panel against the Tribunal’s determination. The Appeal Panel allowed the appeal and set aside the Tribunal’s determination: Commissioner of Police, NSW Police Force v Lee [2016] NSWCATAP 234. The effect of the Appeal Panel’s decision was to confirm the first defendant’s determinations in [6](i), (ii) and (iii) above.

4. [9]

   The present proceedings are, of course, not a merits review. Moreover, any grant of leave to appeal is limited to a question of law. That said, the plaintiff’s history of non-compliance with aspects of the legislative regime governing the possession and use of firearms is relevant to the respective determinations of the Tribunal and the Appeal Panel. The particulars of that non-compliance are helpfully set out in the written submissions of the first defendant and may be summarised as follows:

THE DECISION OF THE TRIBUNAL

1. [10]

   In order to understand the issues before this Court, it is firstly necessary for me to set out some aspects of the Tribunal’s determination.

2. [11]

   Commencing at [114] of its reasons, the Tribunal exhaustively summarised the plaintiff’s various breaches of the FA and FR which I have set out above. Having made reference to the decision in Hijazi v Commissioner of Police, NSW Police Force [2014] NSWCATAD 148, the Tribunal said (commencing at [207]):

THE GROUNDS OF APPEAL BEFORE THE APPEAL PANEL

1. [12]

   The grounds of appeal which were relied upon by the plaintiff before the Appeal Panel were set out in its judgment (at [15]) in the following terms:

   1. (1)

      whether the Tribunal made a finding of fact for which there was no evidence or which was contrary to the overwhelming weight of the material (“the no evidence ground);

   2. (2)

      whether the Tribunal failed to provide adequate reasons or fail to engage properly with the question of the public interest (“the inadequate reasons and relevant/irrelevant considerations ground”);

   3. (3)

      whether the Tribunal made a decision that was inconsistent with a previous decision based on the same factual circumstances (“the inconsistency ground”);

   4. (4)

      whether the Tribunal asked a wrong question or take into account an irrelevant consideration (“the wrong question and relevant/irrelevant consideration ground”); and

   5. (5)

      whether the Tribunal made a decision that was manifestly unreasonable (“manifest unreasonableness ground”).

2. [13]

   After the Appeal Panel had reserved its decision, the parties were directed to provide submissions in respect of two further issues, namely:

   1. (1)

      whether the Tribunal made an error of law by taking into account an irrelevant consideration, namely that comparatively, the breaches relating to the personal licences and permits were fewer and less serious than breaches relating to the theatrical and dealer licences and permits; and

   2. (2)

      whether the Tribunal made any other kind of error of law in comparing the number and seriousness of breaches relating to the personal licences and permits with the number and seriousness of breaches relating to the dealer and theatrical licences and permits.

3. [14]

   I have dealt with specific aspects of the Appeal Panel’s reasons when considering the individual grounds of appeal relied upon by the plaintiff before this Court.

Ground 3 – The Appeal Panel erred in law in finding that the public interest required that the appeal by the first defendant be upheld

1. [15]

   These three grounds largely overlap and can be conveniently dealt with together.

The reasons of the Appeal Panel

1. [16]

   The Appeal Panel reached the following conclusions (commencing at [22]):

2. [17]

   Subsequently, the Appeal Panel concluded (commencing at [68]):

3. [18]

   Finally, the Appeal Panel concluded (commencing at [101]):

Submissions of the plaintiff

1. [19]

   As previously noted at [4] above, s 18(1) of the Act allows an appeal to this Court by leave, on a question of law. When asked in the course of the hearing before this Court to articulate the question(s) of law upon which the plaintiff relied, senior counsel did so in the following terms (at T3.7-11):

2. [20]

   Senior counsel then said (commencing at T3.30):

3. [21]

   Senior counsel for the plaintiff submitted that far from the Tribunal making any error, it was in fact the Appeal Panel who had erred in its interpretation of the Tribunal’s determination. In particular, it was submitted that the Appeal Panel’s effective characterisation of the Tribunal’s decision as being little more than a comparative exercise was incorrect. It was submitted that the Tribunal had clearly understood and applied the relevant law, and that a proper assessment of its reasons made this clear.

4. [22]

   Senior counsel further submitted that the plaintiff’s various breaches had obviously been considered by the Tribunal, and that the Tribunal had correctly treated them as relevant to, but not determinative of, the issues that were to be determined. It was submitted that having taken such matters into account, the Tribunal had properly decided that they were not decisive, to the point that it was not contrary to the public interest for the plaintiff to hold the licence and permits referred to in [6](i)-(iii) above. It was submitted that when read as a whole, the Tribunal’s judgment was to be taken as having been reached after consideration of all of the plaintiff’s breaches.

5. [23]

   Senior counsel for the plaintiff also took issue with the Appeal Panel’s conclusion that the Tribunal had failed to give proper, genuine and realistic consideration to the totality of the plaintiff’s breaches, as well as the Appeal Panel’s suggestion that there had been an absence of “active intellectual engagement” on the part of the Tribunal in terms of how those breaches were to be taken into account. In this regard, it was submitted that the Appeal Panel had itself erred in law in misunderstanding and misinterpreting the Tribunal’s decision, and that the Tribunal had given adequate consideration to the totality of the plaintiff’s breaches when making its determination. Whilst accepting that a decision maker was obliged to do more than simply make a passing note of, or a passing reference to, a relevant consideration, and was required to give any such consideration proper attention, it was submitted that the Tribunal had discharged those obligations in the present case, and that the Appeal Panel had erred in law in reaching a contrary conclusion.

6. [24]

   It was further submitted on behalf of the plaintiff that the Appeal Panel erred by interpreting the phrase “proper genuine and realistic consideration” in a manner which was both impermissibly wide, and contrary to authority.

Submissions of the first defendant

1. [25]

   Counsel for the first defendant made lengthy submissions in relation to the construction of the FA. In doing so, he submitted that the licensing regime prescribed by the FA is concerned with the protection of the public, and the making of decisions consistent with the need to reduce, to a minimum, any risk to the public arising from the possession or use of firearms. It was submitted that in that sense, the public interest encompasses considerations which require preference to be given to the broader interests of the community, over the interests of private individuals.

2. [26]

   Counsel for the plaintiff accepted that the Tribunal:

3. [27]

   However, it was submitted that it did not follow that proper consideration had been given by the Tribunal to the implications of such findings in determining whether or not it was in the public interest for the plaintiff to hold the relevant licence and permits.

4. [28]

   Counsel for the first defendant submitted that properly understood, the crux of the conclusion reached by the Appeal Panel was that despite its acknowledgment of the decision in Hijazi, the reasons of the Tribunal made it clear that it had failed to consider the totality of the plaintiff’s previous conduct in reaching its determination. It was submitted that in these circumstances, no error on the part of the Appeal Panel was established.

5. [29]

   To the extent that the plaintiff relied, before this Court, on submissions which had been made to the Tribunal, counsel for the first defendant submitted that it did not follow that the Tribunal had engaged in some process of reasoning which was not otherwise evident from its reasons. This, it was submitted, was particularly so in circumstances where it was clear on the face of the Tribunal’s reasons that it had failed to give proper, genuine and realistic consideration to totality of the plaintiff’s conduct when making the determinations that it did.

Consideration

1. [30]

   As set out above, the Tribunal made reference to the decision in Hijazi, which was also referred to extensively by both parties in their respective submissions before me. In Hijazi, an Appeal Panel concluded that a determination by a Tribunal at first instance to “quarantine” a failure on the part of a license holder to comply with statutory requirements in relation to a particular licence from consideration in relation to other licences, constituted a failure to take into account a relevant consideration. Commencing at [46] the Appeal Panel in Hijazi observed that s. 24(2)(b)(ii) of the FA provided that a licence may be revoked if the licensee contravenes any provision of the Act or the Regulations, whether or not the licensee has been convicted of an offence for the contravention. The Appeal Panel in Hijazi then went on to say (commencing at [47]):

2. [31]

   The Tribunal in the present case was clearly aware of the decision in Hijazi. So much is clear from the references to that decision in the Tribunal’s reasons. As a consequence, it must be accepted that the Tribunal was cognisant of the need to take into account all breaches, and not just those which were germane to a particular licence or permit. However, it does not follow from that factor that all or any of grounds 1, 2 and 3 are made out.

3. [32]

   The two essential propositions advanced on behalf of the plaintiff in support of grounds 1 to 3 were that the Appeal Panel erred in:

4. [33]

   As to the first proposition, the Tribunal (at [207] of its reasons) correctly stated the effect of the decision in Hijazi, before concluding that the plaintiff’s breaches in respect of his dealer and theatrical licences and permits were “not necessarily decisive of the public interest issue in relation to his personal licences”. However, without anything more, absent any further exposition of reasoning, and apparently without any further consideration of the plaintiff’s breaches, the Tribunal proceeded to find that it was not contrary to the public interest for the plaintiff to hold the licence and permits in question.

5. [34]

   It is one thing to determine that breaches of the kind committed by the plaintiff are not decisive, or are not determinative of a particular outcome. However that does not mean that such breaches are irrelevant to that outcome. Having determined that they were not decisive, the Tribunal was required to consider what effect they had on the question of whether it was contrary to the public interest that the plaintiff be issued with a particular licence, or be permitted to continue to hold particular permits. Expressed in the way that it was, the Tribunal’s conclusion that it was not contrary to the public interest for the plaintiff to continue to hold the permits was something of a non-sequitur, following as it did immediately upon a statement of the proposition that his breaches were not determinative of the outcome, and in the absence of any intervening consideration of those breaches. A conclusion that it was not contrary to the public interest for the plaintiff to hold a particular licence or permit does not, without more, automatically follow from a conclusion that his previous breaches were not decisive of that question.

6. [35]

   These matters support the conclusion reached by the Appeal Panel that no proper, genuine and relevant consideration was given by the Tribunal to relevant factors. The Tribunal’s reasoning was, in that sense, “abrupt” in the way in which in the Appeal Panel determined. Nothing in the Tribunal’s reasons gives the slightest indication that in reaching the conclusion that it did, any real consideration at all was given to the effect of the plaintiff’s numerous breaches.

7. [36]

   As to the second proposition, in Belmorgan Property Development Pty Limited v GPT RE Pty Limited (2007) 153 LGERA 450; [2007] NSWCA 171 Tobias JA said (at [28]):

8. [37]

   In the same case, Basten JA made the following observations about the phrase “proper, genuine, and realistic consideration” (commencing at [76]):

9. [38]

   In Ku-ring-gai Council v West (2017) 220 LGERA 386; [2017] NSWCA 54 Sackville AJA made reference (at [278]) to the “controversy surrounding the meaning and utility of the expression ‘proper, genuine and realistic consideration”.

10. [39]

    Whatever the extent of any such controversy might be, it does not impact on the present case. This is because it is clear from Appeal Panel’s decision, as explained at [26] and [101] of its reasons, that there was no consideration by the Tribunal of particular matters at all. That finding was well open, for the reasons that I have already expressed. On any view of it, a failure to consider a relevant matter obviously falls short of consideration which might be described as proper, genuine and realistic.

11. [40]

    It follows that grounds 1 to 3 inclusive are not made out.

The reasons of the Appeal Panel

1. [41]

   Commencing at [109] the Appeal Panel said the following:

Submissions of the plaintiff

1. [42]

   Senior counsel for the plaintiff submitted that this was not a case where the Appeal Panel was in as good as a position as the Tribunal to determine what inferences could or should be drawn from such facts as were established by the evidence. It was submitted that although established facts were available to the Appeal Panel, the “balancing act” of deciding what was in the public interest should not be based upon the drawing of inferences, but should be carried out with the advantage of seeing and assessing the relevant witnesses. It was submitted that in these circumstances, the Appeal Panel fell into error in “effectively deciding” that the Tribunal had enjoyed no significant advantage in that respect.

Submissions of the first defendant

1. [43]

   Counsel for the defendant submitted that the plaintiff’s position in support of this ground misapprehended the reasons why the Appeal Panel had decided not to remit the matter to the Tribunal. It was submitted that central to the Appeal Panel’s decision in this respect was the fact that none of its conclusions had impugned the factual findings made at first instance, such that its re-exercise of the relevant discretion did not require determining facts or drawing inferences.

2. [44]

   It was further submitted that any benefit that the Tribunal may have had in seeing and assessing the witnesses was overstated, in circumstances where (inter alia) only two witnesses had given evidence before it.

3. [45]

   Counsel for the first defendant also pointed to the objects of the Act which include (at s 3(d)) enabling the resolution of the real issues in proceedings justly, quickly, cheaply and with as little formality as possible. It was submitted that in these circumstances it could not be said that the exercise of discretion by the Appeal Panel had miscarried, or had involved any error of law.

Consideration

1. [46]

   Having regard to s 81(1) of the Act, the Appeal Panel clearly had the power to substitute its own determination for that of the Tribunal. In exercising that power in the present case, it is evident that the Appeal Panel:

2. [47]

   In circumstances where the factual findings of the Tribunal were not disturbed by the Appeal Panel, the Appeal Panel was clearly as well placed as the Tribunal to reach a conclusion. Further, to have remitted the matter in those circumstances would have been at odds with the objects set out in s 3(d) of the Act.

3. [48]

   It follows that this ground is not made out.

The reasons of the Appeal Panel

1. [49]

   Commencing at [114] the Appeal Panel said the following:

Submissions of the plaintiff

1. [50]

   It was submitted on behalf of the plaintiff that the manifest unreasonableness of the decision of the Appeal Panel stemmed from the fact that it had wrongly considered that it was in as good a position as the Tribunal to exercise the relevant discretion. It was submitted that the reasons of the Appeal Panel at [114] to [119] amounted to nothing more than a recitation of the “misdeeds of the plaintiff”, which had then led to a conclusion that the decisions of the first defendant should be affirmed in order for public confidence to be maintained in the regulatory scheme.

2. [51]

   It was further submitted that in reality, the reasons of the Appeal Panel at [114] – [119] amounted to nothing more than a blanket of denunciation of the plaintiff, in the absence of the Appeal Panel properly carrying out the necessary balancing act, such that the conclusion it reached was one to which no reasonable authority could have come.

Submissions of the first defendant

1. [52]

   To the extent that the plaintiff attacked the reasons of the Appeal Panel at [114] to [119], counsel for the first defendant submitted (inter alia) that the discretion to refuse a licence was a broad one and was to be exercised having regard to the public interest. It was submitted that “public interest” was a broad concept, and allowed for issues going beyond the character of an applicant to be taken into account. Counsel for the first defendant also submitted that the FA and the FR provided a regime for the licensing of firearms, and did not operate in way which fettered a pre-existing right to possess a firearm.

2. [53]

   Counsel for the first defendant further submitted that the plaintiff had continuously failed, over a lengthy period of time, to comply with (inter alia) the conditions of the various licences and permits which had been issued to him. It was submitted that taken as whole, those ongoing failures were not insignificant, and demonstrated the display of a cavalier attitude by the plaintiff towards his responsibilities, of a kind that would damage public confidence in the regulatory system if he were allowed to retain the license and permits in question.

Consideration

1. [54]

   A decision may be set aside on the grounds of unreasonableness if it is established that no reasonable person or authority could have come to it. In Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 Lord Greene MR stated the principles in this way (at 230):

2. [55]

   Subsequent authorities have further considered the meaning of the term “unreasonable” in the sense referred to by Lord Greene MR. In Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] UKHL 6; [1977] AC 1014 Lord Diplock said (at 1064):

3. [56]

   In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 Lord Diplock expanded upon the issue, describing (at 821) decisions falling into the general category of unreasonable as decisions that “looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them”. His Lordship’s formulation was adopted by Wilcox J in Conyngham & Ors v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 423 at 433–4.

4. [57]

   The matter was also considered by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 13. The following propositions emerge from the judgment of the plurality (Hayne, Kiefel and Bell JJ):

5. [58]

   In Li, emphasis was also placed on the fact that a statutory discretion must be exercised in accordance with principles of reason: per French CJ at [24] and [29]; per Hayne J at [64], per Hayne, Kiefel and Bell JJ at [64]; per Gageler J at [88] - [92].

6. [59]

   To some extent, ground 5 stems generally from ground 4, and specifically from what was said to have been the Appeal Panel’s erroneous conclusion that it was in as good a position as the Tribunal to exercise the relevant discretion. For the reasons previously stated, I do not accept that such a conclusion was erroneous. In those circumstances, ground 4 having failed, ground 5 must meet with the same fate. However, ground 5 fails for another, and more fundamental, reason.

7. [60]

   It is self-evident that, quite properly, issues of public safety were of paramount importance in the Appeal Panel’s determination. In this regard, the Appeal Panel found (inter alia) that:

8. [61]

   Having regard to these (and other) matters, the Tribunal found (at [119]) that:

9. [62]

   As was emphasised by the plurality in Li, the legal standard of reasonableness must be the standard indicated by the true construction of the statute. In the present case, the statutory scheme created by the FA and the FR is directed to issues of public safety. So much is clear from the provisions of s. 3(1)(a), which provides that one of the underlying principles of the FA is to confirm that firearm possession and use is a privilege, and one which is conditional upon the overriding need to ensure public safety. The nature, extent and frequency of the plaintiff’s breaches of the scheme for which the FA provides were fundamentally at odds with ensuring public safety. In those circumstances, it could hardly be said that the Tribunal’s decision was unreasonable in the sense described in the authorities.

10. [63]

    It follows that this ground is not made out.

The first defendant’s notice of contention

1. [64]

   In circumstances where none of the grounds relied upon by the plaintiff have been established, it is not necessary for me to consider the notice of contention filed on behalf of the first defendant.

ORDERS

1. [65]

   I make the following orders:

   1. (1)

      The time for the commencement of the proceedings is extended until 2 December 2016.

   2. (2)

      Leave to appeal is refused.

   3. (3)

      The proceedings are dismissed.

   4. (4)

      Absent agreement, the parties are to file with my Associate written submissions as to costs within seven days, such submissions not to exceed two pages in length in each case.