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- Unreported Judgment
QUEENSLAND CIVIL AND
Ward v Queensland Police Service – Weapons Licensing  QCAT 248
ALISTER DARCY WARD
QUEENSLAND POLICE SERVICE – WEAPONS LICENSING
General administrative review matters
20 August 2019
23 March 2018
FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – where application for licence refused and review sought
PROCEDURE – OTHER MATTERS – where previous application to review withdrawn – whether leave under s 46(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to make a further application to review required – whether application for review should be dismissed without a hearing on the merits for lack of leave – whether a further referral on same facts or circumstances requiring leave - whether leave should be granted
Justices Act 1886 (Qld), s 147A(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 46(3), s 61
Weapons Act 1990 (Qld), s 10B, s 28A, s 34AA, s 142
Jensen v Queensland Building and Construction Commission  QCATA 11
Roesch v Queensland Police Service Weapons Licensing Branch  QCAT 717
Walton v Gardiner (1993) 177 CLR 378
GD Kable of Hartmann & Associates, Solicitors
Acting Senior Sergeant C Bradford
REASONS FOR DECISION
- The QPS apply for Mr Ward’s Application to review to be dismissed without a full hearing on the merits as they contend Mr Ward was required to seek leave to pursue another application to review and has not done so. The QPS contend that Mr Ward had previously sought a review on the same facts and circumstances, filed 16 May 2016 and had withdrawn that application on 2 August 2016 in response to the QPS’s application to have that review proceeding dismissed.
- Mr Ward submits that leave is not required because the current review is not a further review of the same decision but if the Tribunal considers leave is required then he seeks leave. To this end Mr Ward filed an Application for miscellaneous matters seeking leave to file the Application to review. The QPS objects to Mr Ward being given leave.
- My consideration is only of these two applications and not the Application to review.
- The delay in finalising these applications is regrettable and relates to resourcing issues.
- Mr Ward was the respondent to a protection order under the Domestic and Family Violence Protection Act 2012 (Qld) made on 28 July 2014. He was not legally represented at the Magistrates Court hearing when the order was made, although the transcript indicates he informed the Acting Magistrate that he had obtained legal advice prior to his attendance. He agreed to consent to a protection order being made against him, without any admissions, apparently on the basis that the Acting Magistrate in response to his enquiry told him that consenting to such an order would not affect his weapons’ licence.
- However, section 28A (1) of the Weapons Act 1990 (Qld) (the Act) provides that if a person is a licensee and is named as the respondent in a protection order, the licence is revoked. This subsection took effect on the making of the order as Mr Ward was present in court when the order was made. It is submitted that Mr Ward would not have consented but for the incorrect information provided to him.
- Subsequently, Mr Ward was advised that his licence was cancelled and he took steps to have the protection order proceedings reopened. By this time the period within which he could appeal the protection order had expired. On 9 January 2015 upon the matter being reopened under section 147A(2) of the Justices Act 1886 (Qld) the protection order was ‘revoked’ and the application for a protection order was struck out. Mr Ward contends that ‘revoked’ should be construed as ‘vacated’ because the relevant power was to ‘vacate or vary the order’ and that the protection order should be regarded as having never been made or void ab initio.
- The QPS maintain that the revocation order was not sufficient to discharge the protection order for the purposes of the Act and that a person is deemed not to be a fit and proper person to hold a weapons’ licence for a 5 year period where such an order has been made. The QPS contend that the Act specifically provides for the circumstances under which a domestic violence order is taken not to have been made. This involves an appeal to the Court of Appeal or the District Court. It is uncontroversial that no such appeal was brought.
Is leave under section 46(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) required?
- I find that leave is required.
- Section 46 (3) of the QCAT Act provides:
If an applicant withdraws an application or referral, the applicant can not make a further application or referral, or request, require or otherwise seek a further referral, relating to the same facts or circumstances without leave of the tribunal.
- Mr Ward contends that leave is not required.
Is this a further application relating to the same facts or circumstances?
- I find that the current review application is a further application relating to the same facts or circumstances as the previously withdrawn application.
- Mr Ward contends that the current review application is not a further review application relating to the same facts or circumstances because it is not seeking a review of the same reviewable decision. He concedes that he brought earlier review proceedings and that they were withdrawn because he accepted the QPS’s submissions that there was, at that time, no operative reviewable decision as his licence had been revoked by operation of section 28A of the Act rather than by a decision of the QPS. The difference he contends is that on 26 May 2017 he applied for a licence and it was not granted by the Decision, which triggered a right to seek review.
- The Act provides to a person aggrieved by a decision to refuse an application for a licence a right to apply to the tribunal for review.
- The Appeal Tribunal recently considered section 46(3) of the QCAT Act and found that the differences relied upon in that case, being legislative changes and two factual matters not previously relied upon:
do not give rise to an application that is different in substance or one that involves different subject matter from the earlier application.
Clause 46 allows an applicant to withdraw an application or referral with the permission of the tribunal. If an applicant withdraws, the applicant cannot make a further application or referral about the same subject matter without the tribunal’s leave.
- In Jensen’s case the two review proceedings sought to review the same Queensland Building and Construction Commission decisions although Mr Jensen did apply for a new contractor’s licence, which was rejected on the basis of earlier decisions. However, I am satisfied that Mr Ward’s Application to review relates to the same subject matter as the previously withdrawn GAR155-16 proceedings in that both applications relate to the consequences of the revocation of the protection order on whether Mr Ward is a fit and proper person to hold a weapons’ licence.
- The history of this matter reveals what could be viewed as venue shopping by Mr Ward to seek to rectify the consequences of his consenting to the protection order in 2014.
- In addition to the earlier review proceedings and the reopening proceedings, on or about 4 January 2016 Mr Ward sought judicial review of the Magistrate’s Court decision but then on or about 11 May 2016 withdrew those proceedings as the protection order had been revoked such that there was no operative judicial decision to be reviewed. The commencement of the previous review application and the judicial review proceeding may have been somewhat ill advised but their withdrawal has the appearance of a responsible litigant seeking to minimise not only his costs but the costs to the other parties and the justice system.
- In the circumstances, I am satisfied that the necessity to seek leave has a role to play to seek to ensure that a party is not engaging in an abuse of process.
Should leave under section 46(3) of the QCAT Act be granted?
- I find that leave should be granted.
- Section 46(3) of the QCAT Act does not provide guidance as to when leave should be granted. The Appeal Tribunal recently considered that:
considerations such as the merits of the application, the reasons for the initial withdrawal, the reasons for bringing the fresh application, the lapse of time and the issue of prejudice are relevant to the exercise of what appears to be a broad discretion as to whether to grant leave.
Reasons for withdrawal
- I find this is a factor in favour of the granting of leave.
- The previous proceedings were withdrawn because Mr Ward accepted the QPS’s then submissions that there was, at that time, no operative reviewable decision as his licence had been revoked by operation of section 28A of the Act rather than a decision by the QPS.
- In those circumstances, Mr Ward was not able to validly agitate his case and appropriately withdrew the earlier review at a relatively early time rather than leaving it until shortly before the final hearing.
Reasons for bringing the fresh application
- I find this is a factor in favour of the granting of leave.
- The Decision is a reviewable decision whereas there was previously no operative decision invoking the tribunal’s review jurisdiction. Perhaps somewhat unusually the right to review is not expressly limited to decisions where the Act confers discretion on the decision maker.
Lapse of time/ Issue of prejudice
- I am not satisfied this is a factor against the granting of leave.
- Mr Ward has attempted to rectify the consequences to his weapons’ licence of his consenting to the protection order in 2014 by various proceedings. It has the appearance of venue shopping. Another explanation is that a weapons’ licence is important to a grazier. The QPS urge me to consider these proceedings as an abuse of process and point to the lapse of time and contend that they are entitled to finality in proceedings rather than responding to the various proceedings over an extended period.
- This factor would usually relate to the requirement of an applicant to also seek to extend time to bring the review proceedings outside the prescribed time. Mr Ward brought these proceedings within time.
- There is little dispute as to the facts. This is not a situation where through the passage of time witnesses’ memories will have faded. The issue of prejudice contended for relates to the necessity to again argue the effect, if any, of the revocation of the protection order on provisions of the Act. I am not satisfied that the QPS has demonstrated significant prejudice.
- The QPS contend that the proceedings are an abuse of process. They submit that Mr Ward knew, because of the correspondence which had passed between the parties, at the time he submitted his application for a licence that he was deemed to not be a fit and proper person to hold a licence and he has attempted to engineer a reviewable decision for the collateral purpose of having the tribunal examine the circumstances of the Magistrate revoking the protection order, which is not within the tribunal’s jurisdiction. They submit this falls within the categories of an abuse of process as outlined by the High Court in Walton v Gardiner as discussed in SGLB v PAB. I am not satisfied on the basis of the documents before me that Mr Ward’s predominant purpose of applying for the licence and bringing the review proceedings is for an improper or collateral purpose. His predominant purpose appears to be to obtain a weapons’ licence. If upon a final hearing the Tribunal is persuaded of an abuse of process then this may found a claim for costs.
- I am not satisfied this is now a factor against the granting of leave.
- The QPS contend that the authorities are against Mr Ward. Mr Ward contends that he has an arguable case that the decision of Roesch v Queensland Police Service does not apply to the circumstances of this case, or is distinguishable and is wrong at law and he should be allowed to argue this in a full hearing on the merits and through appeal processes, if necessary. Having regard to the lines of authority to which I was referred his prospects appear slim, however, I am not satisfied that Mr Ward ought to be denied an opportunity to fully ventilate his arguments.
- With the passage of time, Mr Ward’s prospects on a review of the Decision may now be better than it was at the time of hearing these applications as it is now more than 5 years since the protection order was made. A review is a fresh hearing on the merits on the evidence before the tribunal.
- On balance, the factors favour the exercise of the discretion to grant leave.
- The submissions indicate that Mr Ward seeks costs. I therefore make directions should he wish to pursue an order for costs.
 Exhibit 2, 000033.
 Exhibit 6.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 46(3). Application for miscellaneous matters filed 6 December 2017.
 22 January 2018.
 Exhibit 7, attachment.
Weapons Act 1990 (Qld) (the Act), s 28A(3).
 Exhibit 2, 000032. The Verdict and Judgement Record is dated 3 February 2016.
 The Act, s 10B(2), s 10B(5)(a).
 Ibid, s 34AA.
 Ibid, s 142(1)(a), s 142(2).
 Jensen v Queensland Building and Construction Commission  QCATA 11, .
 Ibid, .
 Explanatory Note, QCAT Act, p 40.
Jensen v Queensland Building and Construction Commission  QCATA 11, .
 The withdrawal occurred a little over two months after the application was filed.
 The Act, s 142.
 QCAT Act, s 61.
 (1993) 177 CLR 378.
  QMC 8.
  QCAT 717.
 QCAT Act, s 20.
- Published Case Name:
Ward v Queensland Police Service – Weapons Licensing
- Shortened Case Name:
Ward v Queensland Police Service – Weapons Licensing
 QCAT 248
20 Aug 2019