Kogias v Commissioner of Police [2021] NSWCATAP 165

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kogias v Commissioner of Police [2021] NSWCATAP 165 Hearing dates: 9 April 2021 Date of orders: 3 June 2021 Decision date: 03 June 2021 Jurisdiction: Appeal Panel Before: R Dubler SC, Senior Member S Goodman SC, Senior Member Decision: (1) Leave to appeal is refused; (2) The appeal is dismissed. Catchwords: APPEALS – procedural fairness – failure to take matters into account - leave to appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80 Firearms Act 1996 (NSW), s 11 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Christopher Kogias (Appellant) Commissioner of Police (Respondent) Representation: Solicitors: Appellant (Self Represented) Lindsay Taylor Lawyers (Respondent) File Number(s): 2021/0056024 (AP 21/00656) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administration Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2020] NSWCATAD 297 Date of Decision: 4 December 2020 Before: Emeritus Prof GD Walker, Senior Member File Number(s): 2020/00070251

REASONS FOR DECISION

Introduction 1. In April 2019, the appellant applied to the respondent for the issue of a category AB firearms licence for the purposes of sport and target shooting and recreational hunting. 2. The respondent refused the application, and that refusal was affirmed by both an internal review decision of the respondent and a decision of the Tribunal delivered on 4 December 2020 ("Decision"). 3. The appellant has appealed against the Decision on several grounds, and has sought leave to appeal for a review of the Decision on its merits. For the reasons developed below the Appeal Panel refuses leave to appeal and dismisses the appeal.

The Decision

Background 1. The matters set out below are taken from the Decision, supplemented by the contemporaneous documents. 2. On 29 December 1993, the appellant's shooter's licence was suspended and on 31 January 1994 it was revoked (Decision [2]). 3. On 11 April 2002, an application by the appellant for a firearms licence was refused (Decision [4], [22]). The refusal decision was affirmed on internal review and external review by the Administrative Decisions Tribunal (Decision [6]). 4. At relevant times since at least April 2018, the respondent has made available the following two forms: 1. a Form P561, titled "Application for a Personal Firearms Licence"; 2. a Form P650, titled "Declaration – Person shooting on an Approved Range or undertaking a Firearms Safety Training Course". 1. Each form contains relevantly: 1. the following question: "Have you in NSW or elsewhere, been refused or prohibited from holding a firearms licence or permit or had a firearms licence or permit suspended, cancelled or revoked?" ("Question"); 2. two boxes beside the Question, one indicating "yes" and the other indicating "no"; and 3. a declaration which includes: "I understand that it is a serious offence under the Firearms Act 1996 to make a statement or provide information that I know is false or misleading & I certify that all the information contained in this application is true and correct in every detail" ("Declaration"). 1. In November 2018, the appellant answered "yes" to the Question on: 1. a Form P561 (Decision [59], [60]); and 2. a Form P650 (Decision [26], [106]). 1. In April 2019, the appellant: 1. lodged a Form P561 with the respondent, being his application for a category AB firearms licence (Decision [10]). This Form P561 was the Form P561 which the appellant had signed in November 2018 (Decision [60]) but which now contained relevantly: 1. adjacent to the Question, the crossing out of the mark in the "yes" box and the insertion of a mark in the "no" box, indicating that the answer to the Question was "no" (Decision [10], [60]); 2. the appellant's signature twice, adjacent to the dates 6 November 2018 and 11 April 2019. (Decision [60]; 1. answered "no" to the Question on the Form P560 on which he had answered "yes" in November 2018 (Decision [58], [106]). 1. On 28 August 2019, the respondent refused the appellant's application for an AB firearms licence (Decision [10]). That refusal decision was affirmed on an internal review (Decision [12]).

Reasoning 1. The Tribunal noted that the sole issue for its determination was whether, pursuant to s 11(7) of the Firearms Act 1996, it would be contrary to the public interest for a licence to issue to the appellant (Decision [15], [76]). 2. The Tribunal set out a series of principles relevant to the determination of that issue (Decision [77] – [84]). Having done so, the Tribunal noted that the respondent's case that the issue of a licence to the appellant would be contrary to the public interest case had 2 parts – first, the appellant's mental health and second, the appellant's provision of false and misleading information when completing the Forms P561 and P650 in April 2019 (Decision [85]). 3. The Tribunal considered the evidence and submissions concerning the appellant's mental health and concluded that it did not present a real and appreciable risk to public safety and thus the appellant's mental health was not a reason for concluding that the issue of a licence to him would be contrary to the public interest (Decision [86] – [99]). 4. The Tribunal then considered the evidence and submissions concerning the alleged provision of false and misleading information (Decision [100] – [115]) and concluded that the appellant had provided false and misleading information to the respondent and that the issue of a licence would be contrary to the public interest. The central steps in the Tribunal's reasoning to that conclusion were as follows. 5. First, the Tribunal noted that: "Legislation such as the Firearms Act serves the public interest in ways that go beyond guarding against misconduct by an individual licensee. Licence refusals and similar orders serve the public interest by establishing a regulatory structure for an activity that not only protects the public from harm, but also helps to maintain public confidence in the licensing scheme by signalling that those whose activities do not meet the required standards will not be granted a licence or permit: Moujalli v Roads and Maritime Services [2017] NSWCATAD 141, [52] – [53]. One of the expressed objects of the Firearms Act is "to establish an integrated licensing and registration scheme for all firearms": s 3(2)(b) Specifically in the context of firearms licensing, the Tribunal stated in Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [26], that "the system of firearms licensing and the requirement to provide personal information has been developed to ensure that the public is protected as required by the principles and objects set out in section 3 of the Firearms Act". That such information must be true and correct is made explicit by s 70, which states that "A person must not, in or in connexion with an application under this Act or the regulations, make a statement or provide information that the person knows is false or misleading in a material particular…" (Decision [101] – [102]) 1. Secondly, the principal matter of concern to the Tribunal was the appellant's submission of false and misleading information in the Form P561, by answering "no" to the Question (Decision [103]). As to this matter, the Tribunal stated: 1. at [104]: "He applied for a licence on form P561. The form is signed twice and bears two dates, 6 November 2018 and 11 April 2019. It was received by the registry on 17 April 2019 ... In it the applicant did not disclose that he had previously had his licence revoked and a licence application refused. He had crossed out a cross in the answer "Yes" to question H(a) and replaced it with the answer "No", which constituted a false and misleading statement. He had signed the declaration acknowledging that he was aware that it is a serious offence to make a statement in the application that is false and misleading, and certified that the information was true and correct in every respect. That was prima facie a contravention of s 70."; 1. at [113]: "…there is no doubt whatever that the applicant was aware at the time of lodging his application (the application that is the subject of these proceedings) that the information he had given about prior licence refusal or revocation was false. The fact that he crossed out "Yes" and substituted "No", and vice-versa, in itself shows that he gave some thought to what he was doing." 1. Thirdly, a secondary matter of concern to the Tribunal was that the appellant answered "no" to the Question in the Form P650 (Decision [103]). In this regard the Tribunal found that: "He completed another P650, this time for Wingham rifle range, which is signed twice and bears two dates, 5 November 2018 and 11 April 2019. In cross-examination the appellant said that he had only approached the Wingham range because it was closer, not because he had been refused by Port Macquarie. In the Form P650, in response to [the Question], the appellant stated that he initially marked 'no', but scratched that out and marked 'yes', initialling the change. But both the 'yes' and 'no' boxes are marked, and while the 'yes' box is initialled, there is no way of knowing which was marked first, if that matters" (Decision [106]) 1. Fourthly, the Tribunal stated that while a misstatement on one form might have been explicable, misstatements on two separate forms would not have been, especially when the appellant is a lawyer (Decision [111]). 2. Further, the appellant's practice of changing his answers and completing the Forms P561 and P650, with two signatures and two different dates on each did not assist in following his line of argument; and the appellant's concession in his written submissions "I admit that how I answered those forms has complicated things" was correct. (Decision [111]). 3. The Tribunal expressed its conclusions at Decision [114] and [115]: The functioning of a proper system of firearms licensing is one of the stated objectives of the Firearms Act, which depends on applicants providing true and correct information in a comprehensible manner. That is the reasoning behind s 70. It is nothing to the point to claim that the registry already has access to information about prior revocations or refusals. Locating it might require the registry to conduct an investigation into the license history of every applicant, whereas it should be able to rely on the veracity of persons having dealings with it in determining whether to give an application closer attention. As an experienced legal practitioner, the applicant would have been aware of that. In view of the evidence concerning the applicant's haphazard and negligent (at best) attitude to compliance with the legislative provisions concerning the supply of information by applicants, it is not at present in the public interest for a firearms licence to be issued to the applicant, and I so find.

Relevant legal principles 1. An appeal may be brought as of right on any question of law, and with leave on any other grounds: Civil and Administrative Tribunal Act 2013 ("NCAT Act"), s 80(2)(b). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exhaustive list of questions of law including relevantly whether: 1. there was a failure to afford procedural fairness; and 2. the Tribunal failed to take into account relevant considerations. 1. In Collins v Urban [2014] NSWCATAP 17, an 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; 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.

Grounds of appeal and application for leave to appeal 1. We turn now to the grounds of appeal and the application for leave to appeal.

First ground of appeal – procedural unfairness 1. The first ground of appeal is that the appellant was denied natural justice and was not afforded procedural fairness because: 1. prior to the hearing, the respondent had focused primarily on the issue of public interest and the danger posed by the appellant's mental health and whether the appellant was a fit and proper person; 2. the respondent addressed those matters in considerable detail in his submissions, especially the appellant's mental health; 3. at the hearing, the respondent abandoned the issue of the danger to public safety posed by the appellant's mental health and indicated that the respondent would be relying only upon the appellant's provision of false and misleading information; and 4. as a result, the respondent denied the appellant the opportunity to properly prepare his case by providing more relevant and material information on the issue of the provision of false and misleading information.

Appellant's submissions 1. The appellant did not expand upon this ground of appeal in his written or oral submissions.

Respondent's submissions 1. The respondent's submissions were in summary: 1. the respondent did not abandon his public interest case with respect to the appellant's mental health; 2. the respondent's written submissions dealt in detail with both aspects of the public interest case – the appellant's mental health and the provision of false and misleading information – in some detail; 3. the Decision at [85] acknowledges that both aspects of the public interest case were pressed by the respondent; 4. the respondent's pursuit of the public interest case relating to the appellant's mental health is evident from the respondent's cross-examination of a forensic psychologist called by the appellant; 5. in any event, the method of the appellant's preparation for hearing is a matter for the appellant; 6. the appellant provided evidence and submissions which addressed the false and misleading information aspect of the respondent's public interest case; and 7. when all of the above is considered in the light of the appellant's experience as a lawyer of more than 20 years, this ground of appeal must fail.

Consideration 1. This ground of appeal fails for the following reasons. 2. First, we are not satisfied that the respondent abandoned any aspect of its public interest case. It is clear that both aspects of that case were pursued (Decision [85]) and that the Tribunal dealt in the Decision with both the mental health aspect and the false and misleading information aspect of the respondent's public interest case, at Decision [86]-[99] and [100]-[115] respectively. 3. Secondly, in any event the abandonment by the respondent of part of its case could not have amounted to a denial of natural justice to the appellant. The appellant always had the opportunity to prepare and present all elements of his case. It is evident from the submissions before the Tribunal and from the Decision that the appellant did so. Whilst the appellant says that he has been deprived of the opportunity to present relevant evidence, there was no such deprivation, and the absence of such evidence was not the product of any conduct of the respondent or the Tribunal. 4. Whilst the expansion of a party's case for the first time at a hearing might have procedural fairness consequences it is difficult to conceive of any circumstances in which the abandonment by a party of a part of its case at a hearing could do so. By the time of the hearing, the other party has had the opportunity to prepare its case on all issues.

Second ground of appeal – overlooking relevant and material facts/gave no or little weight to particular evidence; and the application for leave to review the Decision on its merits 1. The second ground of appeal is that the Tribunal erred in fact and in law because it overlooked relevant and material facts and gave no or little weight to particular evidence. For the Appeal Panel to review the Decision on its merits requires the appellant to apply for leave. There is considerable overlap in the subject matter of this ground and application and it is convenient to consider them together. 2. The essence of the second ground of appeal and the application for leave is that the Tribunal: 1. did not have regard to the appellant having completed forms in November 2018 which he signed and dated with that date and which forms contained the answer "yes" to the Question; and 2. the failure of the Tribunal to consider those forms led to the Tribunal erroneously concluding at paragraphs [104] and [111] of the Decision that the appellant placed two signatures and two dates on the Forms P561 and P650 and thereby provided false and misleading information to the respondent, without the Tribunal understanding that the first set of signatures and dates were made in November 2018, with the Question answered "yes" and that the second set of signatures and dates were made in April 2019.

Appellant's submissions 1. The appellant's submissions insofar as they relate to ground 2 may be summarised as follows: 1. the Tribunal did not have regard to the forms he completed in November 2018; 2. those forms were not an attempt to provide false and misleading information to the respondent; 3. the failure of the Tribunal to give weight to those forms was an error of law; and 4. the failure of the Tribunal to have regard to those forms caused it to make a finding that the appellant made two misstatements in "changing his answers and completing forms P561 and P650 with 2 signatures and 2 different dates on each one", which finding was an error of law. 1. The appellant also contends that leave to appeal should be given: 1. to the extent that the above errors are found not to be errors of law but errors of fact; and 2. because the appellant is a legal practitioner and an officer of the Supreme Court of New South Wales and the findings made by the Tribunal that he provided false and misleading information may have consequences for him in that capacity.

Respondent's submissions 1. The respondent submitted in essence that: 1. it was apparent on the face of the Form P561 that the answer "yes" to the Question had been changed to "no"; 2. there was no justifiable explanation for this; 3. the appellant thereby provided false and misleading information to the respondent; 4. it was open to the Tribunal to find that this constituted the provision of false and misleading information; and 5. the forms completed by the appellant in November 2018 make no difference to the findings made by the Tribunal concerning the completion of the Forms P561 and P650.

Consideration 1. It is clear from the Decision that the Tribunal had regard to the answers of "yes" to the Question made in November 2018. In particular the Tribunal referred in the Decision to the appellant's evidence and submissions that in November 2018 the appellant answered "yes" to the Question on: 1. the Form 561 (Decision [26], [59], [60], [104] and [113]); and 2. a Form P650 (Decision [26], [106]). 1. A central feature of the appellant's argument appears to be that as at November 2018 the Forms P561 and P650 contained only truthful answers and the Tribunal failed to consider those forms in that state. However, this is of little moment when it is clear that the Tribunal took into account the fact that the Question had been answered "yes" in November 2018. 2. In any event, even if the appellant's contention were correct (i.e. the Tribunal did not take into account the forms in the state they were in as at November 2018) this would make no difference for the following reasons. 3. As set out above, the Tribunal's conclusion that the appellant provided false and misleading information to the respondent was based upon the Tribunal's findings that the appellant answered "no" in April 2019 to the Question on both the Form P561 (being the matter of primary concern to the Tribunal) and the Form P650 (a matter of secondary concern). It is the answer of "no" that was critical to the Tribunal's reasoning. 4. Further, the placement of two signatures and two different dates on the Forms P561 and P650 was not an essential step in the Tribunal's reasoning to the conclusion that the appellant provided false and misleading information to the respondent. Whilst the Tribunal referred at Decision [111] to the appellant's practice of changing his answers and completing documents with two signatures and two different dates, it did so in the context of indicating that this practice did not assist in following the appellant's line of argument and that it had complicated the fact finding process. 5. It follows that the matters set out in the second ground of appeal do not give rise to any error of law by the Tribunal. Nor do they provide any basis for a grant of leave to appeal. Further, the fact that the appellant is a legal practitioner and an officer of the Supreme Court of New South Wales and there may be consequences for him arising from the Tribunal's findings does not provide a basis for a grant of leave to appeal.

Third ground of appeal – possible procedural unfairness 1. The third ground of appeal is expressed as a possible breach of the rules of natural justice and an absence of procedural fairness to the respondent, arising from an email from the respondent's solicitor to the appellant, after the hearing which attached a Statutory Declaration of a Mr Ruprecht of the Wingham Rifle Range, which the respondent's solicitor indicated would be filed with the Tribunal.

Appellant's submissions 1. The appellant's position was that he was unaware whether that Statutory Declaration had been considered by the Tribunal, but if it had been then the appellant wished to have the opportunity to cross-examine Mr Ruprecht.

Respondent's submissions 1. The respondent's submissions were that: 1. the respondent provided the Statutory Declaration to the appellant and sought his views as to its provision to the Tribunal; 2. the appellant did not respond, and the respondent included the Statutory Declaration with chronologies provided (we infer after the hearing) to the Tribunal; and 3. as the Tribunal did not refer to the Statutory Declaration, it is clear that it was not taken into account and there was no denial of procedural fairness.

Consideration 1. Neither party contended that the Statutory Declaration, or its contents, were taken into account by the Tribunal. It is not apparent that there is any mention of the Statutory Declaration or its contents in the Decision. 2. In these circumstances, this ground of appeal must fail. 3. We note that the appellant's written submissions foreshadowed an application to extend the third ground of appeal. However at the hearing of the appeal, the appellant indicated that no such application would be made. Thus it is unnecessary to consider, and we have not considered, the written submissions addressed to that foreshadowed 'extension'.

Conclusion and Orders 1. For the reasons set out above, none of the grounds of appeal have been made out and leave to appeal should be refused. 2. The orders of the Appeal Panel are: 1. Leave to appeal is refused; 2. The appeal is dismissed.

********** 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 June 2021