Geary v Queensland Police Service Weapons Licensing
[2017] QCAT 6
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- Unreported Judgment
- Geary v Queensland Police Service Weapons Licensing[2017] QCAT 6
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Geary v Queensland Police Service Weapons Licensing[2017] QCAT 6
Geary v Queensland Police Service Weapons Licensing[2017] QCAT 6
CITATION: | Geary v Queensland Police Service Weapons Licensing [2017] QCAT 6 |
PARTIES: | John Francis Geary (Applicant) v Queensland Police Service Weapons Licensing (Respondent) |
APPLICATION NUMBER: | GAR081-16 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Paratz |
DELIVERED ON: | 9 January 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND RELATED MATTERS – LICENCES – ISSUE OF AND GENERALLY Where the applicant sought to review a decision to refuse an application for a licence for a concealable weapon, a handgun – where the applicant was a primary producer – whether the applicant had established it was necessary to use a concealable weapon - where the applicant sought to use the handgun for feral animal control and to euthanize sick or diseased animals – where the applicant had not shown that the property had characteristics making the use of a long arm or rifle impractical or impossible Where an application for extension of time to file the application to review was made – where no satisfactory explanation for the delay in filing the application was given Where an application to strike out or dismiss the application to review was made – where it was held that the applicant had not established the merits of the application to review Weapons Act 1990 (Qld) Weapons Regulation 2016 (Qld) s 22(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 61 Braunberger v Assistant Commissioner Les Hopkins [2014] QCAT 34 Gardener and Ors v Chief Executive, Office of Liquor & Gaming Regulation and Anor [2011] QCAT 542 Eastern Leader Co Pty Ltd v Department of Agriculture, Fisheries and Forestry [2013] QCAT 463 Harm v Queensland Police Service [2010] QCAT 518 Shaxson v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 309 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]Mr Geary applied for a Concealable Licence under the Weapons Act 1990 (‘the act’). A decision was made on 10 December 2015 by Senior Sergeant Cavanagh, an authorised officer with Queensland Police Service Weapons Licensing (‘Weapons Licensing’), rejecting the application.
- [2]Mr Geary filed an Application to Review the decision, and an Application to Extend Time on 1 April 2016.
- [3]Weapons Licensing filed an application to strike out the Application to Review on 23 August 2016.
- [4]A Direction was made by a Senior Member of the Tribunal on 20 September 2016 that the application to extend time, and the application to strike out, would be determined on the papers. This is the decision on those applications.
The Weapons Licensing Application
- [5]Mr Geary filed an application dated 22 June 2015 with the Weapons Licensing Branch on 25 June 2015[1] for a Concealable Firearms Licence. He is 48 years old. The license application noted the genuine reason for the license as ‘Recreational/Rural Purposes’.
- [6]He noted the property was known as ‘Umbudgen’ at Taroom in Queensland and was 6,500 hectares, described as ‘Flats. Cultivated to hilly timbered grazing country. Cattle grazing 800 head. 1600 acres cultivated.’[2]
- [7]He described the use of the category of weapon for the following duties on the rural property as[3]:
- Protection from wild animals
- Vermin control
- Recreational hunting.
- [8]
- Browning 9mm, Hi Power, Category H, semi-auto, centre-fire
- Smith and Wesson, 48-3, Category H, revolver, handgun.
- [9]He was asked to provide further information as to sufficient proof of a genuine reason for the possession of a weapons licence on 21 July 2015, which he provided on 29 July 2015 as follows[5]:
- I live at Umbudgem and visit other properties 3 to 4 times weekly.
- I have held Cat H licence over a decade.
- Possession has always been necessary. Always my late grandmother held a Cat H for approx. 30 years prior to me obtaining a Cat H.
- The property where I live has been owned continuously since 1946. I have owned my property since 1989.
- No other person has Cat H here, My father has Cat A
- [10]A Notice of Rejection of Application was issued by Senior Sergeant Cavanagh dated 10 December 2015. The reasons for rejection were stated as[6]:
The purpose nominated in your application is not a purpose that warrants the issue of a licence in the circumstances.
It is considered by the Authorised Officer that the use of a Category H weapon is not suitable for feral animal control and your requirements can be adequately met in another way using a weapon of another category.
- [11]The Notice of Rejection was accompanied by an Information Notice. The Information Notice noted that the Act provides that if the reason is occupational the applicant must state why possession of a weapon is necessary in the conduct of the applicants business or employment, and that:
I noted that the issue of a Concealable Firearms licence for use in occupational primary production is generally restricted to very large land holdings which have excessively rugged terrain requiring the extensive use of motorbikes or horseback to access.[7]
And
I considered that apart from convenience, there is no reason why a long arm could not be used for your need of eradicating feral animals.
The application to extend time
- [12]Section 33 of the QCAT Act provides that an application for review of a reviewable decision must be made within 28 days after the ‘relevant day’. The relevant day means the day the applicant is notified of the decision.
- [13]In the application to review Mr Geary notes that he received the decision on 16 December 2015. The application was not lodged until1 April 2016.
- [14]The Tribunal has power under section 61 of the QCAT Act to extend the time limit fixed for the start of a proceeding. Mr Geary has applied under that section to extend the time for filing of the application to Review.
- [15]In his application to extend time, Mr Geary notes as the only apparent basis to extend time that[8]:
At the time of this now rejected application I also applied to upgrade another part of my Firearms Licence. Still waiting for a response 10 months later.
- [16]Directions were given by a Senior Member of the Tribunal on 20 September 2016 that Mr Geary was to file submissions by 27 September 2016 explaining why he failed to file the application within 28 days of the decision of 10 December 2015, and why he did not attend the compulsory conference on 22 July 2016.
- [17]Mr Geary filed submissions on 30 September 2016, saying that he was delayed in filing his submissions due to a medical condition, and attached a medical certificate which noted that he had attended a medical appointment on that day but did not specify any particular condition or effect. In regard to the delay in filing the original application for review he said:
I had contacted the office of my sitting member the Honourable Jeff Seeney looking to resolve this matter with a favourable outcome. Unfortunately awaiting a response delayed my lodgement past the 28 day limit. Unfortunately I received a letter from the Honourable Jeff Seeney’s office advising that the Police Minister Bill Byrne refused to assist (copy enclosed). I then contacted the Ombudsmen and they advised to still lodge the application with QCAT. I took this avenue as I was informed that there has been a positive outcome through these channels.
- [18]Weapons Licensing filed submissions on 2 June as to the application for an extension of time. They submitted that the application should be rejected. They referred to several instances where Mr Geary had failed to comply with Directions of the Tribunal as to filing material, and made the following overall comments:
- There is no explanation for the delay.
- The application to review was lodged 134 days after the appeal period expired.
- The applicant has not made application to review within time and had not informed the decision maker he intended to contest the final decision – he stated he would go to his local member of parliament despite being told that he needed to proceed as outlined in the notice of rejection to review the matter.
- There is prejudice to the respondent in the fact that the matter is well and truly out of time and could have easily been brought within time if the applicant had acted on advice given to him twice on the 16th of December 2015.
- There is no information before the respondent for a comment to be made on the strength or otherwise of the applicant’s case due to the applicant’s failure to comply with Tribunal directions.
- It is submitted that it is not in the interests of justice given the applicants failure to comply with directions of the Tribunal.
- [19]Weapons Licensing filed further submissions on 4 October 2016, and submitted that Mr Geary had consistently failed to comply with directions of the tribunal and had failed to satisfactorily explain the delay in lodging the application to review. It says to the failure to attend the compulsory conference that:
The applicant has provided no explanation of why he was unaware that he was required to attend on the 9th of August 2016 as he would have received the Directions Notice issued on the 28th of April 2016 which included the notification of the compulsory conference on the 22nd of July 2016.
Application to strike out
- [20]Weapons licensing filed an Application on 23 August 2016 applying to dismiss/strike out the application to review. The grounds of the application were stated to be:
Applicant has failed to comply with directions of the Tribunal on numerous occasions including – failed to make application for leave to review when application was in excess of 134 days after appeal period – failed to supply copy of review application to respondent – failed to provide reasonable explanation why application to review was out of time – failed to appear at compulsory conference – failed to provide an explanation of why he failed (sic) to the compulsory conference.
- [21]Directions were given by a Senior Member of the Tribunal on 20 September 2016 that Mr Geary was to file submissions by 27 September 2016 explaining why he did not attend the compulsory conference on 22 July 2016. Mr Geary submitted that[9]:
I was unaware until after 22 July 2016 that I was required to attend the Conference on that day believing that the 9th August was to be the day that I was required to attend. I did telephone QCAT in this regard and they advised that correspondence should be in writing.
I would like to mention that I have experienced delays in receiving correspondence via facsimile and post.
Discussion
- [22]The Tribunal has power under section 61 of the QCAT Act to extend the time limit fixed for the start of a proceeding.
- [23]The Tribunal has power under section 47 of the QCAT Act to order that the proceeding be dismissed if it considers the proceeding is lacking in substance.
- [24]A fundamental element of both an application to extend time, and of an application to strike out proceedings, is to consider the merits of the case.
- [25]The principles in relation to an application for extension of time were considered in Braunberger v Assistant Commissioner Les Hopkins[10] where the Member noted:
[8] The Tribunal has the power under s 61 of the Queensland Civil and Administrative Tribunal Act 2009 to extend the time in which to file the application. The Tribunal must consider whether “the interests of justice are served by granting or refusing the extension sought”. (Benson v Ware [2012] QCATA at [9])
[9] There are earlier decisions of the Tribunal and the Appeal Tribunal that have identified some of the relevant factors to be considered in exercising the discretionary power to extend time. Relevant factors, although not exclusive, include the length of the delay and whether a satisfactory explanation has been provided for the delay; the merits of the application; and the degree of prejudice, if any, to the other party if the application to extend time is granted.
- [26]The assessment of the merits of the case on an application for extension of time has been variously expressed:-
In Gardener and Ors v Chief Executive, Office of Liquor & Gaming Regulation and Anor[11] the Member described the merit threshold as ‘quite low’ and considered whether the applicants had ‘demonstrated that there is an arguable case or at least that the grounds for review are not hopeless’[12].
In Eastern Leader Co Pty Ltd v Department of Agriculture, Fisheries and Forestry[13] the Senior Member considered the prospects of the applicant overturning the decision on the basis that it was not the correct or preferable decision ‘to be slim’[14].
- [27]The test for the merits in an extension of time application has therefore been variously expressed as requiring the applicant to show an ‘arguable case’, or that ‘the grounds for review are not hopeless’, or that the prospects of overturning the decision are not ‘slim’, in the initiating application to review.
- [28]Mr Geary has applied for a concealable firearms license, which is a Type H license. There are separate and specific considerations that apply to concealable firearms. The possession and use of concealable firearms is strictly controlled.
- [29]The two weapons that Mr Geary seeks to be licensed to use are a handgun and a revolver. He wishes to use the weapons for the humane killing of stricken animals, and to control feral pests. He also wishes to use them for recreational purposes.
- [30]A concealable firearms licence does not authorise the possession or use of a weapon for recreational shooting[15]. That part of Mr Geary’s application has no foundation and cannot succeed.
- [31]In his submissions filed on 16 August 2016, Mr Geary submits that “main reason for use is for the humane destruction of sick and injured stock”. He attached a photo with the following description:
Photo of bogged Hereford cattle dying in a dam on ‘Umbudgem’ during times of drought. I had to wade my way out to them on a truck tube with my Cat H pistol and recovery straps.
I had to euthenase them and then attach recovery straps. There is no way a rifle can be used safely in this situation.
- [32]He also attached a ‘safe work method statement’ prepared by Mr Read, an engineer, which listed the ‘pros and cons of using a short arm (pistol) against using a long arm (rifle) for the humane destruction of stock’.
- [33]Mr Geary listed ‘Key Points’ in his Application to Review as follows:
7/1/16 Bad encounter with feral pigs
When repairing boundary fence in the steep and timbered banks of Robinson Creek unable to carry fencing equipment and a rifle. Use to always have my Browning 9mm in my belt holster. Since having my Cat H licence rejected this is not possible and resulted in me nearly having my thigh ripped open.
!8/2/16 Serious animal health issue
An older Hereford cow was accidentally struck by heavy earthmoving equipment and had her hip and back broken. Luckily had mobile phone service – over 1 hour lapsed before my Father arrived with a rifle to put down the wounded cow. In the past this would have been done immediately as I can carry the cat H weapon safely on these machines.
- [34]The need for concealable weapons to dispose of stricken animals or pests has been considered in several previous cases.
- [35]In Harm v Queensland Police Service[16] the applicant applied for a category H concealable firearm licence. He owned a 16,400 hectare rural property, and ran about 180 head of cattle which he hoped to increase to about 450 breeders in time. He wished to use the weapon to control feral animals and to put down injured or diseased livestock. The property was heavily timbered in in places, and he would check fences and livestock on horseback.
- [36]
Because of concerns raised by Sergeant Willcock as to the appropriate use of a handgun as opposed to a high calibre rifle such as the Applicant’s 243 Winchester bolt action rifle, a statement has been provided by Peter Watts, who is currently a weapons sales manager and service technician with Camp Co in Rockhampton. Although he doesn’t specifically say, I assume this is a business which specialises in the sale of firearms. Mr Watts has had considerable experience with firearms and was in the police force for a number of years with experience in outback towns. Mr Watts’ comments that the applicant’s intention to use a 357 Magnum pistol would be as effective as the 243 Winchester for the disposal of feral animals and the humane destruction of livestock. Having regard to the terrain of the Chinchilla property as described to him, he is of the opinion that the use of a handgun would be safer and more practical than a rifle particularly if the property could only effectively be accessed on horseback. This also addresses some of the matters set out in the publications produced by Sgt Willcock as to the management of feral animals.
- [37]The Senior Member described the decision making process in that matter as ‘finely balanced’. He did make an order authorising the issue of a Category H weapon in that matter, but noted[18]:
[26] Here the applicant complies with the strict requirements of section 10 in that he is a fit and proper person. He has a genuine need for a firearms licence for occupational purposes. He has given evidence, which I accept, that he can carry out his occupational requirements safer and more effectively with a handgun as opposed to a rifle having regard to the terrain and heavy vegetation of the Chinchilla property. There is no evidence to the contrary. If there was better vehicle access to a greater proportion of the property, and not necessarily all, the application would be dismissed because special need for a handgun would not have been established. Obviously as the property is improved and opened up the need for a category H weapon may need to be reconsidered. Mr Harm therefore meets the strict requirements of the Act to possess the category of weapon applied for.
- [38]In Shaxson v Queensland Police Service, Weapons Licensing Branch[19] the applicant applied for a Category H licence, which would licence him for a concealable weapon, being a handgun. He was a primary producer on a property of some 604 hectares on which he grazed and bred between 50 and 115 cattle. The property was rough and hilly terrain. The Member noted[20]:
He primarily seeks the Category H licence because of the trapping of feral dogs. He says he requires it for safety reasons. He says that he traps dogs in inaccessible areas. Most particularly, the areas are inaccessible by quadbike, which he uses on the property rather than horses. He no longer rides or has horses. He carries his gun on his person when on the quadbike.
- [39]The Member found that Mr Shaxson’s current licences and permitted weapons had been adequate to euthenase the feral dogs he had trapped on his property, notwithstanding that he may find it more convenient to carry and use a handgun if allowed. She concluded[21]:
Although a handgun may be desirable from his perspective to euthenase feral dogs in particular, I am satisfied that the other weapons licences and weapons which he already holds and uses are appropriate to meet his occupational requirements. Therefore, I am not satisfied that the possession of a Category H weapon is necessary to meet his occupational requirements.
- [40]The clear and common conclusion resulting from consideration of these previous cases is that the use of concealable weapons will only be necessary where the terrain or special circumstances make the use of a rifle or long-arm weapon impractical or impossible.
- [41]The ‘safe work method statement’ prepared by Mr Read is a generic statement as to general issues surrounding use of a rifle and a handgun. It does not relate specifically to Mr Geary’s property or situation, and does not assist in assessing Mr Geary’s specific requirement for a category H weapon.
- [42]Weapons Licensing note as to expert opinion as to suitable weapons for feral animal control that[22]:
In relation to the use of concealable firearms for feral animal control, I consider that the accuracy of concealable firearms, particularly over long distances is not suitable for the humane destruction of feral animals in their natural environment. I further consider that as stated by Senior Sergeant Hoffman, ballistics expert of the New South Wales Police Force in Saiko v Commissioner of Police, NSW Police [2004] NSWADT 99 at 15 that long arm firearms due to greater firearm control and accuracy are more appropriate than the use of concealable weapons for feral animal control.
- [43]Weapons Licensing note that Mr Geary only engages in recreational shooting on ‘Umbudgem’, which is owned by his mother. He owns another property ‘Moorat Downs’ which is 1400 acres consisting of open grazing country and some timbered areas with approximately 800 acres of cultivation. It considers that property is not substantially large or has excessively rugged terrain as referred to in the case of Harm[23].
- [44]Mr Geary has not provided material evidencing any specific requirement relating to his property which requires the use of a category H weapon, apart from the incident at Robinson Creek, and when using earthmoving machinery.
- [45]The incident at Robinson Creek is said by Mr Geary to have arisen because he could not carry fencing equipment and a rifle in the steep timbered banks. He does not indicate however that he regularly works in those conditions and that a similar situation is regular.
- [46]He does not establish that the safe carriage of long arm weapons could not be accommodated on earthmoving equipment, in the same way that they can be carried on a motor cycle, quadbike or in another vehicle.
- [47]Mr Geary noted on an earlier renewal application[24] that he works on horseback and motor cycle. It is noted throughout the literature referred to in the submissions that there are numerous easily available commercial products which attach to a motor cycle to allow for the safe and secure carriage of a long-arm. In Harm the member noted the availability of cases for long arms which can be attached to a saddle on horseback[25]. The mere use of a horse or motor cycle, or earthmoving machinery, in itself does not lead to a requirement for a handgun.
- [48]
Firstly my case should have been a renewal of existing licence not a complete new application followed 6 months later by rejection.
As I have held this category H licence for nearly 20 years why suddenly is this now a problem? As nothing has changed in my circumstances in the last 20 years.
- [49]The issue of a category H licence to Mr Geary previously does not determine the decision of Weapons Licensing on a new or renewal application, or upon the decision of the Tribunal on a review which makes a fresh decision based upon the law and the evidence and before it.
- [50]Mr Geary has not demonstrated to a satisfactory extent that the circumstances which would attract approval of a concealable weapon apply in this matter.
- [51]I consider that Mr Geary’s prospects of success are slim in his application to review, and am not satisfied that he has established the merits of his application for a Category H licence.
- [52]Mr Geary has failed to comply with several directions of the Tribunal as to filing material on time. He has explained that as being due to delays in postage. However, there is an unexplained delay in filing the Application to Review, even after he received advice from the Minister which he says he was waiting for, and unexplained delays in complying with Directions. An overall pattern of unexplained delay by him in pursuing the Review application is apparent.
- [53]Consequently, I am not satisfied that Mr Geary has shown sufficient cause to extend the time for filing of the Application to Review. In any event, in light of my finding that he has not established a case on the merits, it would be futile to extend the time for filing the Application to Review, and for this matter to proceed any further.
- [54]The application to extend time to file the application to review is refused, and I order that application be dismissed.
- [55]The application to dismiss/strike out is allowed, and I order that the Application to Review a decision filed on 1 April 2016 be dismissed.
Footnotes
[1]Queensland Police Service material p 178.
[2]Queensland Police Service material p 184.
[3]Queensland Police Service material p 185.
[4]Queensland Police Service material p 191.
[5]Queensland Police Service material p 200.
[6]Queensland Police Service material p 172.
[7]Queensland Police Service material p 174.
[8]Application to extend Time, Part B, Q 2.
[9]Submission John Geary filed 30 September 2015.
[10][2014] QCAT 34.
[11][2011] QCAT 542.
[12]Ibid at [40] and [41].
[13][2013] QCAT 463.
[14]Ibid at [30].
[15]Weapons Regulation 2016 (Qld), s 22(2).
[16][2010] QCAT 518.
[17]Ibid at [21].
[18]Ibid at [26].
[19][2014] QCAT 309.
[20]Ibid at [5].
[21]Ibid at [13].
[22]Queensland Police Service material p 176.
[23]Queensland Police Service material p 175.
[24]Firearms Licence Renewal Application, John Geary, 25 May 2003.
[25]Ibid [20].
[26]Application to Review filed 1 April 2016 Part c p 4.