Patty v Queensland Police Service Weapons Licensing Branch
[2018] QCAT 387
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- Unreported Judgment
- Patty v Queensland Police Service Weapons Licensing Branch[2018] QCAT 387
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Patty v Queensland Police Service Weapons Licensing Branch[2018] QCAT 387
Patty v Queensland Police Service Weapons Licensing Branch[2018] QCAT 387
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Patty v Queensland Police Service Weapons Licensing Branch [2018] QCAT 387 |
PARTIES: | JON VICTOR PATTY (applicant) v QUEENSLAND POLICE SERVICE WEAPONS LICENSING BRANCH (respondent) |
APPLICATION NO/S: | GAR006-18 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 21 November 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Allen |
ORDERS: |
|
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – OTHER MATTERS – where the applicant sought to review a decision to reject an application to acquire a weapon –– where applicant required to establish need for weapon – where applicant did not provide letter in support of application from his Shooting Club – where applicant sought to have Tribunal make declarations about the category of weapon and his entitlement to acquire the weapon – whether applicant had complied with requirements of application for permit to acquire – whether tribunal able to satisfy itself based on the material that there was a need to acquire the weapon ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where respondent had filed its section 21 documents – where applicant not satisfied that respondent had filed of the material relevant to the issues in the proceeding – where applicant made application for the Tribunal to order the respondent to produce further documents – what are the issues in the proceeding – whether the Tribunal satisfied that the respondent had not filed all of the material relevant to the tribunals review of the reviewable decision PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – OTHER MATTERS – where the respondent filed an application to dismiss or strike-out the substantive application and or the application for further production of documents – whether the Tribunal considered the application frivolous, vexatious or misconceived; or lacking in substance; or otherwise an abuse of process Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 19, s 20, s 21, s 24, s 47, s 60 Weapons Act 1990 (Qld), s 10, s 11, s 39, s 40, s 42, s 44, s 142 Weapons Categories Regulation 1997 (Qld), s 5, s 7 Weapons Regulation 2016 (Qld) s 22, s 100 Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service [2010] QCAT 319 Maszlik v Lorraine Palmer Pty Ltd [2013] QCAT 607 Neverfail Pty Ltd as trustee for the Harris Siksna Family Trust and anor v Radford (No 2) 2017 QCATA 73 Randall v Body Corporate for Runaway Bay CTS 25498 [2011] QCATA 10 SGLB v PAB [2015] QMC 8 |
REPRESENTATION: |
|
Applicant: | Self-represented |
Respondent: | Self-represented |
APPEARANCES: |
|
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). | |
REASONS FOR DECISION
History of the Application
- [1]Mr Patty is the holder of several weapons licenses including concealable weapons licence No. 30038192. That licence is subject to condition PC1 Shooting Club: Cat H – which includes that ‘This licence authorises the holder to have possession of and use registered Category H weapons at an approved shooting range’. Mr Patty made an application to the Queensland Police Service Weapons Licensing Branch (QPS WLB) for a permit to acquire[1] a particular firearm known as the ‘Wedgetail Industries WT15-01 Pistol’ (Subject Firearm). In his application Mr Patty described the weapon as follows:
Category Category H
Description Handgun –other
Action Semi-auto
Calibre .223 Rem
Mag.Capacity 10
Barrel Length 241
Weapon Length 630
Reason why weapon is required Target and competition shooting.
- [2]A permit to acquire may be issued to an individual only if amongst other things the person is authorised to possess the weapon or category of weapon under a licence and for a category H weapon only if the person has a need to possess the weapon.[2] It is a requirement for an application for a permit to acquire that the application must be accompanied by other particulars prescribed by regulation.[3] The regulations provide that where an applicant for a permit to acquire a category H weapon relies, for the application, on a need to possess the weapon for sports or target shooting that the application must be accompanied by a letter setting out certain information and signed by the applicant and a member of the governing body of the approved shooting club of which the applicant is a member (Club Letter).[4] Mr Patty’s application for a permit to acquire was not accompanied by a Club Letter from the shooting club of which he was a member. I note that Mr Patty did during the application process provide the QPS WLB with further detail in regard to the Subject Firearm.
- [3]Mr Patty had been in contact with the QPS WLB prior to his filing of the permit to acquire application regarding how the Subject Weapon would be categorised by them as he had observed a person using the subject firearm in a pistol competition. He advised the QPS WLB that he was aware that some other parties with concealable weapons licences had been able to obtain permits to acquire the Subject Weapon as a category H weapon. The QPS WLB indicated to Mr Patty that in their view the Subject Weapon was a category D weapon but the Ballistic Weapons Unit had not assessed it yet. Mr Patty’s shooting club was of the same view as the QPS WLB and that is why they would not supply the Club Letter to Mr Patty as they could not support the use of a category D weapon.
- [4]Mr Patty took the view that the Subject Weapon was either a category H weapon or a category D weapon that was a pistol, which was not subject to the requirement of the Club Letter. Mr Patty further asserted that as the holder of a concealable weapons licence (i.e. a category H licence) he may, in accordance with regulation 22(1) of the Weapons Regulation, possess a category D weapon that is a pistol. Regulation 22(1) states, ‘A concealable firearms licence authorises the licensee to possess and use any pistol, that is not a category R weapon, for the purpose stated on the licence.’ I note that the shooting club had taken the view that when referring to pistol in reg 22(1) it is referring to one as defined in reg 7 of the Weapons Categories Regulation 1997 (Weapons Categories Regulation), which deals with category H weapons, and so were not convinced by Mr Patty’s assertion that they should on that basis supply the Club Letter.
- [5]The QPS WLB contacted Mr Patty after he filed his permit to acquire application requesting that he supply the Club Letter. Once he indicated that he would not be able to, the QPS WLB asked him to confirm that he wished to proceed with the application. Mr Patty advised that having regard to the QPS WLB’s view that the Subject Weapon was a category D weapon and if as he asserted it was in fact a category D pistol then he would not need a Club Letter as he would be able to obtain the permit to acquire having regard to reg 22(1).
- [6]The QPS WLB rejected Mr Patty’s application for a permit to acquire.[5] The specific reason for the rejection[6] was that Mr Patty failed to provide the information required under the Act, that is the Club Letter, and the authorised officer could not be satisfied that Mr Patty had a genuine reason as required under the Act to acquire the weapon.
- [7]Mr Patty made application to the Tribunal to review that decision.[7] Mr Patty filed an affidavit with the application which set out the above history and also included material that he had obtained under Right to Information and Information Privacy applications from the QPS WLB in regard to the Subject Weapon.
The Tribunal’s jurisdiction in the review application
- [8]The Tribunal may exercise its review jurisdiction if a person has, under the QCAT Act, applied to the Tribunal to exercise its review jurisdiction for a reviewable decision.[8] The Tribunal must decide the review in accordance with the QCAT Act and the enabling Act (here, the Weapons Act) under which the reviewable decision being reviewed was made.[9] The Tribunal may perform the functions conferred on the Tribunal by the QCAT Act and the enabling Act and has all the functions of the decision-maker for the reviewable decision.[10] The purpose of the review is to produce the correct and preferable decision and the Tribunal must decide the review by way of a fresh hearing on the merits.[11] Effectively, the Tribunal stands in the shoes of the original decision-maker for the decision and makes the decision anew.
- [9]The Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter for reconsideration to the decision-maker.[12] The Tribunal also has power to make a declaration about a matter in a proceeding instead of making an order it could make about the matter; or in addition to an order it could make about the matter. The power in regard to declarations is in addition to, and does not limit, any power of the Tribunal under an enabling Act to make a declaration.[13]
- [10]The decision-maker’s role is to assist the Tribunal to make the decision on review and to provide the Tribunal with its statement of reasons and any document or thing in the decision-makers possession or control that may be relevant to the review of the decision.[14]
- [11]I note that the decision regarding a permit to acquire is made in accordance with s 42 of the Weapons Act. In particular, in deciding an application for a permit to acquire the authorised officer (or in this case the Tribunal) may consider anything at their disposal.[15] The authorised officer must consider certain things when deciding whether the applicant has a need to possess the weapon including another thing prescribed under a regulation,[16] (the Club Letter). The authorised officer must either (a) approve the application and issue the permit to acquire subject to any conditions the authorised officer may decide; or (b) reject the application.[17]
Mr Patty’s applications
- [12]Mr Patty applied to the Tribunal for the following orders:
- (i)Declarations pursuant to s 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that:
- A.The firearm known as the Wedgetail Industries WT15-01 Pistol, or any pistol variant thereof (the Subject Firearm), is a category H weapon within the meaning of section 7 of the Weapons Categories Regulation 1997 (Qld);
- B.In the alternative to (i)(A), the subject firearm is a Category D weapon that is a ‘pistol’ within the meaning of section 5 of the Weapons Categories Regulations 1997 (Qld);
- C.The applicant, as the holder of concealable firearms licence no.30038192-00, is authorised to possess and use the Subject Firearm for the purpose of ‘sports or target shooting’ in accordance with regulation 22(1) of the Weapons Regulation 2016 (Qld).
- (ii)An order that the decision of the authorised officer of the respondent, Acting Inspector M Lingwood, to refuse Permit to Acquire Application no 9626265 dated 15 August 2017, contained within the Notice of Rejection dated 7 December 2017, be set aside.
- (iii)Such further or other order as the Tribunal deems appropriate.
- [13]The QPS LWB filed its s 21 documents in the Tribunal on 13 March 2018. Mr Patty then filed an application for miscellaneous matters on 27 March 2018 amongst other things seeking a direction under s 62(3) of the QCAT Act that the QPS LWB file all of the documents and other material in its possession or under its control that is directly relevant to his Permit to Acquire and the Wedgetail Industries WT15-01 Pistol. Mr Patty filed submissions dated 27 March 2018 in support of the application for miscellaneous matters. These included a history of his dealings with the QPS WLB and Wedgetail Industries in regard to the Subject Firearm. In particular that:
- (a)Wedgetail Industries had corrected him in regard to the Subject Firearm and confirmed that it was a pistol and that permits to acquire had been issued to concealable weapons licence holders on the basis that it was a category H Weapon; and
- (b)notwithstanding that advice, the QPS WLB considered that the Subject Weapon was a category D weapon.
- (a)
He also set out his dealing with the shooting club and the disagreement they had about the classification of the Subject Weapon. He noted that Shooting Club’s representative had ignored the fact that nowhere in the Weapons or either of the regulations was the ‘pistol’ defined.
- [14]Mr Patty further stated that his motivation for filing the application for review was in part due to the fact that neither the QPS WLB nor the club could provide any reasonable explanation for why the Subject Firearm was either a category H weapon or alternatively, not a category D weapon that is a pistol and/or why it could not be possessed by him under the authority of his concealable firearms licence (especially since the QPS WLB had already issued at least two permits to acquire the Subject Firearm to the holders of concealable firearms licences as category H weapons).
- [15]Mr Patty notes that he made requests and was provided with material regarding the Subject Firearm and the application under the Right to Information Act 2009 (Qld) and the Information Privacy Act 2009 (Qld) and that the material disclosed was directly relevant to his application. He states it reveals that the QPS WLB had issued two permits to acquire the Subject Firearm to the holders of concealable weapons licences as category H weapons. The QOS WLB had contacted one of the persons who had received a permit and requested photos of the weapons and had then sought advice from the Australian Criminal Intelligence Commission (ACIC) on how to categorise the weapon. The advice was that the ACIC could not support the weapon being a handgun.
- [16]Mr Patty said that whilst the QPS WLB rejected the application because it was not accompanied by a Club Letter, there are subsidiary issues for determination by the Tribunal including determining the category of weapon of the Subject Firearm. Mr Patty considered the following to be issues in the proceeding:
- (a)Issue 1: Has Mr Patty complied with the technical requirements in Division 3 (permits to acquire) of the Act?
- (b)Issue 2: Is the subject firearm either a category H weapon or a category D weapon that is a ‘pistol’ within the meaning of the Weapons Categories Regulation.
- (c)Issue 3: If the Subject Firearm is a category D weapon that is a ‘pistol’, does Mr Patty have authority to possess the Subject Firearm by reason of s 49A of the Weapons Act – A licence authorises a licensee to possess and use a weapon or category of weapon endorsed on the licence for any lawful purpose and reg 22(1) of the Weapons Regulation?
- (a)
- [17]He submitted that any documents which are ‘directly relevant’ to the ‘issues in the proceeding’ should be placed before the Tribunal so that it can arrive at the correct and preferable decision. He considered that Issues 1 and 2 to be cumulative with effect that if he does not prove, for example, that he has complied with the technical matters in Issue 1, there is no need to determine Issue 2.
- [18]If Issue 2 is resolved with the finding that the Subject Firearm is a category H weapon, the applicant seeks a declaration that he can provide to his club for the purpose of obtaining a Club Letter. The provision of the Club Letter will cure the QPS WLB complaint and the permit can be issued.
- [19]If Issue 2 is resolved alternatively with a finding that the Subject Firearm is a category D weapon, the Tribunal should also determine whether it is a ‘rifle’ or a ‘pistol’ given that reg 22(1) of the Weapons Regulation only permits the holder of a concealable firearms licence to possess a pistol other than a category R pistol.
- [20]Mr Patty notes that if the Tribunal finds that the Subject Firearm is a category D weapon that is a rifle, the application fails. If the Tribunal finds that the Subject Firearm is a category D weapon that is a pistol it should consider the construction of reg 22(1) of the Weapons Regulation and whether Mr Patty’s licence conditions which presently only permit him to possess a category H weapon should be removed or amended to accommodate the Subject Firearm. The Tribunal has jurisdiction to review the impositions of conditions on a licence.[18]
- [21]He also submitted that separate to the issues detailed above, there may be other issues for determination by the Tribunal that are not presently known to Mr Patty. He notes that in its latest correspondence the QPS WLB has suggested that it would be unlawful for the Tribunal to grant the substantive relief that is sought by him.
- [22]Mr Patty submits that the Tribunal has power to order supplementary disclosure in accordance with s 22(3), s 28(3) and s 62(3)(b) of the QCAT Act. He submits that the QPS WLB is obliged to disclose documents relevant to the ‘issues in the proceeding’ and to make full and frank disclosure to:
- (a)afford the affected person information so as to make an informed decision whether or not to pursue administrative review; and
- (b)enable the reviewing tribunal to make informed judgments about the decision under review.[19]
- (a)
- [23]Mr Patty states that the material disclosed is both irrelevant and deficient. In accordance with the Tribunal’s direction, the QPS WLB was ordered to disclose ‘documents and other material in its possession or under its control that may be relevant to the Tribunal’s review of the decision.’ He sets out why he believes some material is irrelevant such as disclosure of his other weapons licence and his traffic history and that the rules of evidence, in regard to relevance, should assist the Tribunal. He submits that there is insufficient disclosure in regard to relevant material such as his correspondence with the QPS WLB and the documents which he obtained under Right to Information and Information Privacy as described above.
- [24]Mr Patty made submissions as to why he was entitled to disclosure to the additional documents having regard to the issues in the proceeding set out above. Mr Patty filed an affidavit sworn 26 March 2018 in support of his application seeking that the QPS WLB file further documents which is referenced in and supports the submissions he made in regard to the application for further disclosure.
The QPS WLB application to dismiss or strike-out
- [25]In response to the application for further disclosure, the QPS WLB filed an application for miscellaneous matters on 29 March 2018 to dismiss/strikeout Mr Patty’s application to review a decision and the application for miscellaneous matters dated 27 March 2018. The grounds of the application to dismiss/strikeout were that:
- (a)in filing his application for miscellaneous matters, Mr Patty demonstrates that he is acting outside the bounds of the Tribunal review powers and attempting to have the Tribunal make determinations on his behalf the Tribunal is not authorised to make;
- (b)the application is either misconceived or an abuse of process;
- (c)the Tribunal on review of a decision of the Authorised Officer is limited to the remedies of section 24 of the QCAT Act; and
- (d)the only issue under review is Mr Patty’s failure to comply with the legislative requirements of s 100 of the Weapons Regulation.
- (a)
- [26]It was submitted by the QPS WLB that the review is solely concerned with the reason the originating application was rejected – being the failure to provide a statutorily required document. That the only relevant matter for the Tribunal to consider is whether Mr Patty has or has not provided the statutorily required authorisation from an approved shooting club (to allow the issue of the Permit to Acquire). If the Tribunal finds Mr Patty has failed to supply the requisite authorisation the application must fail. That Mr Patty has stated in his application for review and his application for miscellaneous matters the intention to have the Tribunal make declarations under s 60 of the QCAT Act in relation to the categorisation of a weapon he wants to possess, additionally, to force his club to accept that decision to allow him to have a firearm the club has stated they do not support the use of at the club.
- [27]The QPS WLB submitted that Mr Patty’s application for review states he wants the Tribunal to make a declaration that a weapon is a certain category of weapon under section 60 of the QCAT ACT. The QPS WLB cites the decision of the Tribunal in Maszlik v Lorraine Palmer Pty Ltd[20] where Member Milburn stated, ‘The powers conferred upon the Tribunal pursuant to sections 59 and 60 of the QCAT Act are wide but exercisable only where specific statutory authority to do so has been conferred upon it.’ It was submitted that the Tribunal on review of a decision simply cannot classify weapons – with no statutory power under the enabling Act for the Tribunal to classify weapons.
- [28]The QPS WLB cited the decision of His Honour Mr Hasted in SGLB v PAB[21] in regard to what amounts to an abuse of process:
…a proceeding amounts to an abuse of process when the plaintiff uses the process of the court to affect an object not within the scope of the process, or for a purpose other than that which the proceeding is properly designed, or to secure some collateral advantage beyond what the law offers. Such improper purpose will render the proceeding an abuse of process. Further, the proceeding will be an abuse of process even if the party has a prima facie case. If according to ordinary principles legal proceedings would be struck out as an abuse of process, the fact that the proceedings were brought in exercise of a statutory right is not of itself a reason for declining to strike out the proceeding.
- [29]The QPS WLB submitted that the Tribunal has power under s 47 of the QCAT Act to either dismiss the application or strike out those parts of the application which seek the Tribunal to exercise statutory powers that are not authorised under the enabling Act. Mr Patty’s application has been brought for an improper purpose and referencing the relevant case law and legislation, constitutes an abuse of process. And at a minimum the Tribunal should strike out those parts of the Application to review and the application for miscellaneous matters that seek to lead the Tribunal into error.
- [30]Mr Patty filed submissions in response to the application to strikeout/ dismiss on 11 April 2018. Mr Patty submitted that one of the issues for the Tribunal to determine in the course of the review is the category of the weapon of the Subject Firearm. The determination of the category is of and incidental to the final relief is sought which is an order that the decision of the QPS WLB be set aside. That the category of the Subject Firearm is material to this proceeding because having regard to the history of the matter
- (a)In order to possess a category H weapon for the purpose of sports or target shooting (which the applicants genuine reason), an application for a permit to acquire a weapon must be accompanied by a letter from the club of which the applicant is a member.
- (b)In order to possess a category D weapon that is a pistol, an application for a permit to acquire a weapon does not need to be accompanied by a letter from the club.
- (c)He was unable to obtain a club letter which was the QPS WLB’s only basis for refusing his application for a permit. It is also on this basis that the QPS WLB says that the tribunal is limited to determining the question of whether a club letter was supplied and because it was not, it says that the substantive application must fail.
- (d)He says that whilst the failure to provide the club letter is admitted and was the only basis for the refusal, if the subject firearm is a category D weapon that is a pistol, no requirement for a club letter exists so the respondent’s decision to refuse the application on that basis must be set aside.
- (a)
- [31]Mr Patty considered the following to be issues for determination by the tribunal in the strikeout application:
- (a)Issue 1: does tribunal have jurisdiction to determine the category of a weapon?
- (b)Issue 2: does the tribunal have the power to make the declaration in the form sought by the applicant?
- (c)Issue 3: is the proceeding an abuse of process which warrants the dismissal or striking out of parts of the substantive application and disclosure application?
- (a)
- [32]Mr Patty made full submissions in regard to those matters on the basis that:
- (a)the Tribunal had jurisdiction under s 163(4) of the Weapons Act to make declarations about the category of weapons; and
- (b)in accordance with the decision in Randall v Body Corporate for Runaway Bay CTS 25498,[22] the Tribunal has the power to make the declarations he is seeking.
- (a)
Mr Patty submitted that because the Tribunal has the power to make the declarations which he is seeking, the application and the miscellaneous application are not an abuse of process.
QPS WLB further submissions
- [33]The QPS WLB filed submissions in response to Mr Patty’s submissions confirming their view that what he was seeking was outside of the Tribunal review process and would lead the Tribunal to making orders which are beyond the power of the Tribunal in its review jurisdiction. The QPS WLB note that Mr Patty has in his own words admitted that the application was correctly refused on the basis that he did not provide the Club Letter and the confirmation of the decision to reject the application for a permit to acquire.
Discussion
- [34]It is clear from Mr Patty’s submissions that while he acknowledges that he has not complied with the requirements in regard to an application for a permit to acquire a category H weapon, if the Tribunal were to find that the weapon was a category D weapon that was a pistol he should be granted his permit to acquire. It appears that the purpose of the declarations are if the Tribunal:
- (a)determines that the Subject Weapon is a category H weapon then the shooting club should issue the Club Letter and he would be able to obtain his permit to acquire; and
- (b)determines that the Subject Weapon is a category D pistol he would be able to obtain his permit to acquire because there would be no requirement for a Club Letter.
- (a)
- [35]Mr Patty accepts that if the orders seeking the declarations are struck out then it will be automatic that the substantive application will fail and that in those circumstances he would seek to withdraw his application.
- [36]The Tribunal is sympathetic to Mr Patty’s frustrations in regard to how the Subject Firearm should be classified and the lack of clarity around that categorisation.
- [37]Mr Patty has a concealed weapons licence which is endorsed for him to use registered category H weapons at an approved shooting range. As set out above, a permit to acquire may be issued only to a person authorised to possess the weapon or class of weapon. Mr Patty says that if the Subject Weapon is a category D pistol then the Tribunal has jurisdiction to review conditions on a licence. There is no doubt that is the case. In this case though, the decision under review is the application for the permit to acquire and the Tribunal may make one of two decisions, either:
- (a)to approve the application and issue the permit to acquire subject to conditions, that is conditions on the permit to acquire and not on the licence; or
- (b)to reject the application.
- (a)
- [38]There is no application to review the conditions on Mr Patty’s licence before the Tribunal, therefore the only type of weapon that he may obtain a permit to acquire in is a category H weapon. Having regard to the requirements of s 39 of the Weapons Act, the only application which would be entertained by the QPS WLB in respect of Mr Patty is an application for him to be issued with a permit to acquire a category H weapon. It is also clear from Mr Patty’s application that he described the Subject Weapon as a category H weapon.
- [39]Mr Patty infers that because he has requested various declarations that they represent issues in the proceeding and he should be entitled to disclosure in regard to those matters. This is a review application and the issue in the proceeding is for the Tribunal to decide the application that was before the original decision-maker, which is the permit to acquire and to make a fresh decision on the merits. The decision of the Tribunal is not so limited as submitted by the QPS WLB to the issue of whether or not the Club Letter has been provided. The decision is, whether or not Mr Patty should be issued with a permit to acquire in respect of the Subject Weapon. If the Club Letter had have been provided the Tribunal would in the normal course have satisfied itself that the Subject Weapon was a category H weapon that he was otherwise authorised to acquire and would have made findings in that regard. This would have been subject to the legislative criteria in the Weapons Categories Regulation and the evidence which was put before the Tribunal. As noted by Mr Patty, s 163(4) of the Weapons Act deals with the evidentiary requirements in regard to the classification of weapons. That section though is not in regard to declarations about the category of particular weapons; it relates to the findings of fact which the Tribunal may make in that regard.
- [40]The decision of Maszlik, which was cited by the QPS WLB, is not helpful as it related to a request for a declaration in regard to a matter which was not otherwise within the Tribunal’s jurisdiction under the relevant enabling Act. Section 60 of the QCAT Act clearly enables the Tribunal to make a declaration in regard to a review application in accordance with the decision of Member Barlow in Randall v Body Corporate for Runaway Bay CTS 25498,[23] noting that the Tribunal may make a declaration ‘about a matter in a proceeding’ either ‘instead of an order it could make about the matter’ or ‘in addition to any order it could make about the matter’.
- [41]As noted above the matters or issues in this proceeding are the decision under review and the orders the Tribunal can make are to either to confirm or amend the decision, or set aside and substitute its own decision, or set aside the decision and return it to the decision-maker. The original decision was to reject the application for a permit to acquire and the only other decision which can be made is to approve the application and issue the permit to acquire subject to any conditions. The Tribunal may if it was minded to approve the application make a declaration instead of that order or make a declaration in addition to that order
- [42]For the Tribunal to be minded to make a decision to approve the application for a permit to acquire it must be satisfied of the matters set out in the Weapons Act including that Mr Patty has a need to possess the weapon.[24] The reason that there be a need to possess the weapon is contained in s 10 of the Weapons Act which states that a licence may be issued only to an individual if the person has a reason mentioned in s 11 to possess the weapon or category of weapon, which relevantly includes for sports or target shooting. As mentioned above, to satisfy that requirement there is a need to provide the other particular prescribed under a regulation.[25] Which, in accordance with reg 100 of the Weapons Regulation (which prescribes the requirements where an applicant for a permit to acquire a category H weapon who relies, for the application, on a need to possess the weapon for sport or target shooting), is a Club Letter as described in reg 100.
- [43]Mr Patty cannot cure his lack of a Club Letter by asking the Tribunal to make a declaration. The declarations which the Tribunal can make are limited to those which would give effect to its decision. As Mr Patty has not provided the Club Letter the Tribunal is limited to making a decision to confirm the decision to reject his application as he cannot satisfy the Tribunal that he has a need to possess the Subject Firearm.
- [44]I confirm Mr Patty’s submission that a decision to strike out an application should be exercised only in the clearest of cases in accordance with the decision in Neverfail Pty Ltd as trustee for the Harris Siksna Family Trust and anor v Radford (2) 2017 QCATA 73.
- [45]I note in regard to the application for further disclosure that as this related to the declarations which Mr Patty sought, that application would have been dismissed as those declarations were not ones which the Tribunal would have been able to make
- [46]While the submissions of the QPS WLB were that the application was an abuse of process I consider that Mr Patty has given much thought to his application and has been frustrated because he has seen that others have been able to receive permits to acquire similar weapons.
- [47]One of the grounds for dismissing an application under s 47 of the QCAT Act is that it lacks substance. Mr Patty has accepted that if he is not able to obtain the relief he seeks in the declaration that the decision of the Tribunal will be automatic to confirm the decision under review because of the lack of the Club Letter. I concur with that and in that case it is clear that there is no merit in the application as Mr Patty acknowledges that he has not supplied the Club Letter and that if the application is in respect of a category H weapon there must be a Club Letter. As mentioned, having regard to the conditions on Mr Patty’s licence he is not able to seek a permit to acquire any weapon apart from a category H weapon and so if the Subject Weapon had been any other type of weapon the result would have been the same.
- [48]I am satisfied that the application lacks substance and I dismiss it in accordance with s 47 of the QCAT Act. The application for miscellaneous matters for further disclosure is also dismissed having regard to the dismissal of the primary application.
Footnotes
[1]Weapons Act 1990 (Qld) (Weapons Act), s 40.
[2]Ibid, s 39.
[3]Ibid, s 40(1)(c)(iii).
[4]Weapons Regulation 2016 (Qld) (Weapons Regulation), reg 100.
[5]Weapons Act, s 42(5).
[6]Ibid, s 44(3).
[7]Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act), s 17; Weapons Act, s 142.
[8]QCAT Act, s 18.
[9]Ibid, s 19.
[10]Ibid.
[11]Ibid, s 20.
[12]Ibid, s 24.
[13]Ibid, s 60.
[14]Ibid, s 21.
[15]Weapons Act, s 42(2).
[16]Ibid, s 42(3).
[17]Ibid, s 42(5).
[18]Stanway v QPS WLB [2012] QCAT 104.
[19]Crime and Misconduct Commission v Deputy Commissioner Queensland Police Service [2010] QCAT 319.
[20][2013] QCAT 607, [15].
[21][2015] QMC 8.
[22][2011] QCATA 10.
[23][2011] QCATA 10.
[24]Weapons Act, s 39(2)(c).
[25]Ibid, s 40(c)(iii).