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Berthun v Queensland Police Service – Weapons Licensing[2018] QCAT 413

Berthun v Queensland Police Service – Weapons Licensing[2018] QCAT 413

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Berthun v Queensland Police Service – Weapons Licensing [2018] QCAT 413

PARTIES:

ANTHONY WILLIAM BERTHUN

(applicant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

GAR232-17 and GAR434-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

4 December 2018

HEARING DATE:

21 February 2018

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

  1. The application by Anthony William Berthun for an extension of time to review the decision of the Queensland Police Service Weapons Licensing made 10 January 2017 is granted.
  2. Review of the decision made 10 January 2017 will remain a separate proceeding to be heard together with application GAR232-17.
  3. Evidence and submissions in one proceeding will be evidence and submissions in the other proceeding.
  4. Application GAR232-17 is dismissed.
  5. The decision to reject the application by Anthony William Berthun for a Weapons Licence made 10 January 2017 is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application made for extension of time to review a decision – where application to review a decision to reject an application for a weapon licence – where review application brought out of time – whether extension of time warranted

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – OTHER MATTERS – where domestic violence order made but subsequently revoked on reopening application – where no appeal – status of domestic violence order – significance of traffic history

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Weapons Act 1990 (Qld), s 10, s 10B, s 15(6), s 34AA

Domestic Family Violence Protection Act 1999 (Qld),
s 23(2), s 44, s 96, s 97, s 143, s 164, s 165, s 169, s 187

Justices Act 1886 (Qld), s 142(1)(a), s 142(2)(a), s 142(6), s 142(7)

Commissioner of Police Service v Ryle Rockhampton District Court D23/2004

Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229

Goodwin v Phillips (1908) 7 CLR 1

Peacock v Crowley (Unreported, District Court Appeal 1573/98, McGill DCJ, 20 May 1998)

Roesch v Queensland Police Service, Weapons Licensing Branch [2013] QCAT 717

Urquhart v Queensland Police Weapons Licensing Branch [2011] QCAT 023

APPEARANCES & REPRESENTATION:

 

Applicant:

Mr R M Galloway instructed by Anne Murray and Co, Solicitors

Respondent:

Acting Senior Sergeant C Bradford, Queensland Police Service

REASONS FOR DECISION

  1. [1]
    Three matters are before me for determination:
    1. (a)
      Application to review a decision of Senior Sergeant AT Cavanagh dated 7 July 2017, rejecting an application by the applicant for a Firearms Licence made 17 April 2017. That is referred to as the Second Decision. The Application was filed on 4 August 2017 and is part of Proceeding GAR232-17;
    2. (b)
      Application by the respondent to dismiss or strike out the application to review the decision of 7 July 2017, filed 12 December 2017;
    3. (c)
      Application for an order extending time for the applicant to seek a review of the decision of the respondent dated 10 January 2017 to reject an application for a Weapons Licence made on 16 November 2016. That is referred to as the First Decision. Further, that the review proceedings in relation to the 10 January 2017 decision be consolidated with proceeding GAR232-17. That Application was filed on 28 November 2017.
  2. [2]
    By Directions made 28 November 2017 all applications were required to be heard on 21 February 2018.
  3. [3]
    The matter proceeded on the basis of submissions by both parties. The applicant was cross-examined in relation to the extension of time issue.
  4. [4]
    The material filed in this matter variously reveals the following, which I accept as having occurred:
    1. (a)
      20 October 2014 – application for a protection order by the applicant’s de facto partner, naming Mr Berthun as respondent, but subsequently withdrawn;
    2. (b)
      17 March 2015 – the de facto partner filed a protection order application naming Mr Berthun as respondent;
    3. (c)
      7 April 2015 – directions made in relation to delivery of material and setting a hearing date of 22 May 2015. The de facto partner to file and serve her affidavit material by 28 April 2015 and Mr Berthun to file and serve his affidavit material by 20 May 2015;
    4. (d)
      7 April 2015 – the Court sent a letter to Mr Berthun advising of an adjournment of the hearing date and a change of the hearing date to 20 May 2015.  The letter was sent to 3 Gallagher Street, Emerald. Mr Berthun resided at 3 Gallagher Place, Emerald. Mr Berthun swears it was not received by him;
    5. (e)
      No affidavit material received by Mr Berthun until 18 May 2015 when the de facto partner’s affidavit was given to Mr Berthun by his housemate who had mistakenly taken and held the document;
    6. (f)
      Upon attendance at the Court on 20 May 2015 to file his affidavit material, Mr Berthun learned that a protection order was made on that day, in his absence, under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act);
    7. (g)
      17 July 2015 – application filed by Mr Berthun in the Emerald Magistrates’ Court for Rehearing or Reopening pursuant to s 142(6) of the Justices Act 1886 (Qld);
    8. (h)
      3 August 2015 – orders made re-opening the proceedings and that the protection order made 20 May 2015 cease to have effect until determined;
    9. (i)
      31 August 2015 – application withdrawn by the de facto partner. The Verdict and Judgment Record (Form 44 – Rule 62 Criminal Practice Rules) reveals: “Result Order Revoked”. The Court Order records: “1. Application withdrawn and dismissed”;
    10. (j)
      16 November 2016 – application by Mr Berthun for a Weapons licence;
    11. (k)
      27 November 2016 – Mr Berthun advised by the QPS by phone that the application had been rejected because of the making of the domestic violence order on 20 May 2015;
    12. (l)
      10 January 2017 – Mr Berthun received written notice of rejection of his application on the ground that he was not a fit and proper person because of the domestic violence order made 20 May 2015 and that by s 10B of the Weapons Act he was disqualified from applying for a weapons licence. Accompanying the rejection notice was an Information Notice setting out reasons for the decision and information as to a stay of the decision and right of review to this Tribunal under s 142 of the Weapons Act. The Right of Review information states: “You should be aware that as this determination is made on the basis of a strict liability or deeming provision, if it is proven that you were subject of a Domestic Violence Order QCAT can NOT overturn the decision”;
    13. (m)
      23 January 2017 – Mr Berthun obtained written confirmation from the Emerald Court House that the application for a protection order filed against Anthony Berthun on 17 March 2015 was “withdrawn and dismissed”;
    14. (n)
      23 January 2017, 27 January 2017, 3 February 2017, 7 February 2017 and 10 February 2017 – Mr Berthun telephoned the respondent to enquire as to whether the decision would be revoked because the protection order had been dismissed. On 10 February 2017 Mr Berthun told Officer Ashleigh Brown that he would apply through QCAT to overturn the decision. In this regard, I refer to CCB006 – Extract of the Weapons Licensing Management System records forming part of Exhibit 4 in the proceedings, put to Mr Berthun in cross examination.  Mr Berthun said that he could not recall making that statement. Mr Berthun’s counsel objected to the question insofar as the time for application for review to QCAT had already expired and Mr Berthun had been told QCAT had no power to overturn the decision. Accepting that is the case, I nevertheless find that Mr Berthun told Officer Brown that he would apply to QCAT for a review;
    15. (o)
      17 April 2017 – Mr Berthun made a second application for a Weapons Licence;
    16. (p)
      7 July 2017 – Mr Berthun was notified by QPS that his previous application was rejected as Mr Berthun had been the subject of a domestic violence order in the relevant period immediately before the date of the application and by 10B(2)(b) of the Weapons Act he was ineligible to apply for a licence for a period of five years after the day the domestic violence order was issued;
    17. (q)
      4 August 2017 – application to QCAT for review of the 7 July 2017 decision.

Issues

  1. [5]
    The following issues emerge from the material and the submissions.
    1. (a)
      Should an extension of time be granted for a review of the First Decision? Has a satisfactory explanation been given, what prejudice is there to the respondent and what are the applicant’s prospects of success?
    2. (b)
      If no extension of time is granted to review the First Decision is there any jurisdiction in QCAT to undertake a review of the Second Decision?
    3. (c)
      What is the status of the Protection Order made 20 May 2015:
      1. as at that date;
      2. on 3 August 2015 when it was ordered to cease to have no effect until determination; and
      3. subsequently on 31 August 2015 when it was revoked and the application for an Order withdrawn and dismissed?
    4. (d)
      Was the 20 May 2015 Order void ab initio because there was no hearing on the merits?
    5. (e)
      Did the Order of 3 August 2015 or 31 August 2015 have the effect of nullifying the 20 May 2015 Order.
    6. (f)
      What is the effect of re-opening proceedings under s 142 Justices Act when considered in the context of s 34AA of the Weapons Act and s 143, s 164, s 165, s 166 and s 169 of the DFVP Act?
    7. (g)
      Is s 142 of the Justices Act inconsistent with the provisions of the DFVP Act?
    8. (h)
      Should Mr Berthun have appealed the making of the protection order on
      20 May 2015 to the District Court, rather than seeking a re-opening and relief under s 142 of the Justices Act?
    9. (i)
      Does the respondent have any discretion to issue a Weapons Licence once a Protection Order is made?

Extension of Time

  1. [6]
    Section 142 of the Weapons Act gives an aggrieved person a right to apply to this Tribunal for review of a decision refusing an application for a licence. Section 33(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that the application for review must be made within 28 days of the day the applicant is notified of the decision. Section 61 of the QCAT Act provides that the Tribunal may extend the time limit for the start of a proceeding, unless it will cause prejudice or detriment not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
  2. [7]
    The factors relevant to the exercise of the Tribunal’s discretion include:
    1. (a)
      whether a satisfactory explanation for the delay has been given;
    2. (b)
      the strength of the case if it is possible for some view on this to be formed upon the preliminary material;
    3. (c)
      prejudice to adverse parties;
    4. (d)
      length of delay, noting that a short delay is usually easier to excuse that a lengthy one.
    5. (e)
      overall whether it is in the interests of justice to grant the extension.[1]
  3. [8]
    The respondent submits that the Second Decision the subject of these proceedings is not a reviewable decision because it is merely a confirmation of the First Decision. Without an extension of time granted to review the First Decision, it is submitted that the Tribunal has no jurisdiction to review the Second Decision. On the basis of this position the respondent applies for the dismissal or strike out of the application to review the Second Decision and objects to any extension of time and consolidation of the reviews.
  4. [9]
    The applicant explains that because of the respondent’s contention that there is no jurisdiction to review the Second Decision, the application for extension of time to review the First Decision and consolidate the proceedings was made. The applicant submits that the arguments to review the First Decision are the same as the arguments to review the Second Decision.
  5. [10]
    Clearly, the question of whether to extend time to review the First Decision is of importance to the parties in terms of the outcome of the proceedings.
  6. [11]
    The applicant explains that the delay in bringing an application to review the First Decision by reference to the time taken to have the 20 May 2015 protection order withdrawn and confirmation of that position obtained for the respondent, oral representations to the respondent to overturn the First Decision, lack of clarity about the appropriate method to overturn the First Decision and the making of the Second Decision which was sought to be reviewed within time.
  7. [12]
    The respondent submits that the applicant was made aware of the availability of the review process by the Notice accompanying the First Decision and in discussions with the applicant.
  8. [13]
    I find that the applicant has given a reasonable explanation for the delay. I note that by the time the applicant had been orally advised to seek a review by QCAT, the time limit had just expired. The advice appears to conflict with the terms of the Notice set out in very stark language to the effect that QCAT “can NOT” overturn the decision if a domestic violence order has been made. 
  9. [14]
    The applicant delayed by some 177 days in bringing the application. I agree with the respondent that that is a very long period of delay.  That must be weighed in balance with the other relevant factors.
  10. [15]
    The respondent submits that it will suffer prejudice if the extension of time is granted and that it is entitled to finality in matters. The applicant says that the respondent has not pointed to any change of position, suffering, loss of opportunity or cost associated with the late application. I accept that submission and find that on the material before me there is no demonstrated prejudice to the respondent if the extension of time is granted. In particular, as the material relevant to the review of the Second Decision is the same as that relating to the First Decision, there is no extra burden on the respondent in the conduct of the proceedings.
  11. [16]
    As to the strength of the applicant’s case I consider on the material before me that it is arguable.
  12. [17]
    The case raises difficult questions of the interplay between the Weapons Act, the DVFP Act and the Justices Act.
  13. [18]
    I consider it is in the interests of justice that the parties are given the opportunity to have their arguments, which they have fully ventilated in written submissions, considered and the preferable decision made.[2]
  14. [19]
    I order that the time for seeking a review of the First Decision be granted. At the hearing the parties argued the merits of the review on which I will make a decision. I have liaised with the Tribunal Registry. The application for extension of time and the review have been allocated matter number GAR434 of 2018.
  15. [20]
    As to whether a review of the First Decision should be consolidated with the review of the Second Decision, I am conscious that the Second Decision remains under attack by the respondent as falling outside the jurisdiction of the Tribunal. The respondent’s application to dismiss the proceeding must be determined
  16. [21]
    For that reason, I think it preferable that there be no order for consolidation. Rather, in accordance with s 55 of the QCAT Act, I order that the proceedings remain as separate proceedings but be heard and decided together. I order that evidence and submissions in one proceeding will be evidence and submissions in the other.

Legislation

  1. [22]
    By s 10 of the Weapons Act, a licence to possess a firearm may only be issued to a person if they are not prevented under an Act from holding the licence and they are a fit and proper person to hold a licence.
  2. [23]
    By s 10B(1) of the Weapons Act, in deciding whether a person is a fit and proper person to hold a licence the authorised officer must consider, among other things, whether a domestic violence order has been made and the public interest.  By s 10B(2) a person is not a fit and proper person to hold a licence if within 5 years before application for a licence is made, a domestic violence order, other than a temporary protection order, has been made against the person.
  3. [24]
    By s 15(6) of the Weapons Act, a person whose application for a licence is rejected because he is not a fit and proper person, is not entitled to reapply for a licence until the day s 10B(2) stops having effect or for 3 years after rejection.
  4. [25]
    By s 34AA of the Weapons Act, if a person appeals against a decision to make a domestic violence order under s 164 of the DFVP Act and the order is discharged under s 169, then for the purposes of the Weapons Act the domestic violence order is taken not to have been made.
  5. [26]
    By s 23(2) of the DFVP Act, a domestic violence order means a protection order or a temporary protection order.
  6. [27]
    By s 44 of the DFVP Act, temporary protection orders may be made upon adjournments, before the respondent has been served or upon application by a police officer.
  7. [28]
    By s 96 of the DFVP Act, a domestic violence order takes effect on the day it is made.
  8. [29]
    By s 97, a protection order continues in force until the day stated by the court in the order or 2 years after the order is made, unless extended.
  9. [30]
    By s 143 of the DFVP Act, the provisions of the Justices Act apply to a proceeding under the Act before a Magistrates Court unless the application of the Justices Act is inconsistent with the DFVP Act.
  10. [31]
    By s 164 and s 165 of the DFVP Act, a person who is aggrieved by a decision to make a domestic violence order may appeal to an appellate court within 28 days of the decision.
  11. [32]
    By s 169 of the DFVP Act, the appellate court may, inter alia, set aside the decision.
  12. [33]
    By s 187 of the DFVP Act, the Court is to give notice of an adjournment of the hearing of an application for the making of a domestic violence order if the respondent is not present in court when the adjournment is made. However, failure to comply with the requirement does not invalidate or otherwise affect a domestic violence order.
  13. [34]
    By s 142(1)(a) of the Justices Act, if a defendant does not appear when called and the justices are satisfied that the summons, in proceedings for simple offences or breach of duty, was properly served the justices may proceed ex parte to hear and determine the case.
  14. [35]
    By s 142(2)(a) of the Justices Act, if a case is heard and determined ex parte the justices shall not order that the defendant be disqualified for any period from obtaining a licence unless the matter is adjourned to enable the defendant to appear to make submissions on the question of the rejection
  15. [36]
    By s 142(6) and 142(7) of the Justices Act, where a case is heard ex parte, because a defendant does not appear, the defendant may within 2 months apply for a rehearing. When a rehearing is granted the order made upon the first hearing shall “forthwith cease to have effect.”

Application to dismiss the application to review the Second Decision

  1. [37]
    The respondent’s position is that:
    1. (a)
      the issue of the Protection Order on 31 May 2015 enlivened s 10B(2)(b) of the Weapons Act;
    2. (b)
      the applicant failed to have the order discharged pursuant to s 34AA of the Weapons Act;
    3. (c)
      therefore, the applicant had no eligibility to apply for a re-apply for a licence under s 15(6) of the Weapons Act and the application for review must fail.

Is the Second Decision a reviewable decision?

  1. [38]
    The respondent submits that the effect of s 15(6) of the Weapons Act is that a decision not to grant a licence on a re-application by a person previously found not to be a fit and proper person, is not a reviewable decision, because the person had no entitlement to reapply.
  2. [39]
    The respondent also says that the Second Decision is not a decision capable of being reviewed because it was merely a confirmation of the First Decision.
  3. [40]
    The applicant has not countered these points. I accept the submissions. I do not consider I am able to strike out the application to review the Second Decision until I have determined the correct and preferable decision with respect to the First Decision.
  4. [41]
    If I find that the 20 May 2015 order did not enliven s 10B(2)(b) of the Weapons Act then arguably the Second Decision could be the subject of review because the foundation for the jurisdictional objection would have fallen away. However, if that were the finding and the First Decision was overturned, there would be no utility in further considering the application to review the Second Decision.
  5. [42]
    If the First Decision is not overturned and I find that the 20 May 2015 order did enliven s 10B(2)(b), it would then be appropriate to dismiss the application on the grounds submitted by the respondent.

Application to Review the First Decision

What is the status and effect of the Protection Order made 20 May 2015?

Respondent’s submissions

  1. [43]
    The respondent submits that the 20 May 2015 order had effect, for the purposes of s 10B(2)(b) of the Weapons Act, at all relevant times, including in April 2017. Revocation of the order on 31 August 2015 is said not to impact on the operation of s 10B(2)(b) of the Weapons Act.
  2. [44]
    The respondent’s position is that the only means by which the 20 May 2015 order can be deprived of force for the purposes of s 10B(2)(b) is if the order is successfully appealed and discharged in accordance with s 34AA of the Weapons Act and s 169 of the DVFP Act.
  3. [45]
    As there was no appeal, the order enlivened the deeming provision of s 10B(2)(b) resulting in Mr Berthun being held not to be a fit and proper person to hold a firearms’ licence. That was the reason for the First Decision, now being reviewed.
  4. [46]
    The respondent refers to the following principles and statutory provisions:
    1. (a)
      when a domestic violence order is made, a person no longer has the right to hold a weapons licence;[3]
    2. (b)
      once a person is deemed not a fit and proper person there is no discretion in the authorised officer to issue a licence;[4]
    3. (c)
      an order is effective as soon as it is pronounced in open court. If a Magistrate made an error within his jurisdiction, in the absence of any appeal the order made takes effect according to its terms;[5]
    4. (d)
      by s 96 of the DFVP Act a domestic violence order takes effect on the day it is made;
    5. (e)
      the Justices Act provides for proceedings to be reopened and orders rectified in specified circumstances, but it contains no provision which affects the validity of an order previously made until it is set aside and does not entitle a Magistrate to declare the original order invalid or void.  The DFVP Act does not contain a provision that non-compliance with the requirement for service of notification of a hearing date will render the order invalid or a nullity;[6]
    6. (f)
      by s 187 of the DFVP Act failure to comply with notice requirements in relation to an adjourned hearing does not invalidate or otherwise affect a domestic violence order.
  5. [47]
    The respondent submits:
    1. (a)
      the 20 May 2015 order was made as a full, not temporary order.  Any subsequent orders are separate to the original order;
    2. (b)
      the Magistrates court regardless of the intent, simply revoked the protection order.  The DFVP Act does not provide any ability under the legislation to render an order void or to retrospectively consider that the order is temporary for the purposes of the Weapons Act;
    3. (c)
      review of the decision is not the forum for determination as to the appropriateness of the 20 May 2015 order, that is a matter for the appellate court;
    4. (d)
      s 142 of the Justices Act has no application to the issue of a protection order. The DFVP Act clearly provides the court with ability to hear and make orders in the absence of the respondent.  There are no provisions for delaying the making of an order or holding the effect of an order until the respondent attends court;
    5. (e)
      S 142 of the Justices Act is inconsistent with s 39 and s 187 of the DFVP Act in relation to ex parte hearings. By s 143 of the DFVP Act, that Act takes precedence;
    6. (f)
      there is no evidence that the Magistrate intended to rescind any orders so as to affect the deeming provisions of the Weapons Act;
    7. (g)
      the subsequent revocation of the order in August 2015 has no effect on the deeming effect of the original order as the applicant has failed to have the order discharged pursuant to s 34AA of the Weapons Act;
    8. (h)
      there is no power within either the DFVP Act or the Justices Act which allows the Court to act retrospectively in relation to a protection order.

Applicant’s submissions

  1. [48]
    It is said Mr Berthun was not afforded natural justice because he has not had an opportunity to put and support his case in relation to the application for a protection order. I accept that is the case, however, if Mr Berthun wished to have the
    20 May 2015 order discharged altogether and to be given an opportunity to be heard the DVFP Act enabled him to appeal to the District Court. The cases to which I was referred in relation to a failure to afford natural justice are not cases which I can apply in this proceeding. It is not within the jurisdiction of the Tribunal to interfere with the protection order made on 20 May 2015.  That is a matter entirely for an appeal court.[7]
  2. [49]
    Mr Berthun seeks to distinguish the cases relied upon by the respondent. Although the factual circumstances in each case are different, I consider that the principles extracted by the respondent, summarised earlier in this decision, are relevant and helpful in resolving the question of the status and effect of the 20 May 2015 order, for the purpose of s 10B(2)(b) of the Weapons Act.
  3. [50]
    In relation to the complaint by Mr Berthun that he is suffering a detriment through no fault of his own, which arises from an administrative error, it was noted by McGill J in Peacock v Crowley[8] that unfair outcomes can result from operation of the DVFP Act and the Weapons Act. The provisions referred to in that decision were pre-cursors to the current provisions under consideration and were in the same terms.  His Honour referred to a number of examples of unfairness, but relevant to this case said:

It is also not difficult to imagine circumstances where a domestic violence order would be made in the absence of the respondent spouse, notwithstanding that the respondent spouse had a good defence to it.  Indeed it is not clear that a domestic violence order which was made but subsequently set aside on appeal would not bring s 10(6)(b) into operation, because the Weapons Act licence is revoked as soon as the original order is made, and an order (so long as it is made within jurisdiction) is valid until it is set aside on appeal.

  1. [51]
    Unfortunately, from Mr Berthun’s perspective, without an order in his favour on appeal, the making of the protection order has the immediate effect of deeming him not to be a fit and proper person for the purposes of the Weapons Act and prevents the authorised officer from exercising any discretion in his favour upon the making of an application for a licence.
  2. [52]
    The applicant’s written submissions are that following an application for a rehearing made under s 142(6) of the Justices Act, the order made on 20 May 2015 became a temporary order, which provided scope for the authorising officer to exercise discretion as no order other than a temporary order had been made. Mr Berthun submits that setting down of the rehearing in effect stayed the effect of the deeming provisions of s 10B(2)(b) of the Weapons Act.
  3. [53]
    Further, by the order of the Magistrate made on 3 August 2015, the ex parte order ceased to have effect until determined. The life span of the order was from
    20 May 2015 to 3 August 2015. The respondent is said to be wrong with respect to its submission that the domestic violence order was in force until April 2017.
  4. [54]
    The order made on 31 August 2015 was that the Application be withdrawn and dismissed. In those circumstances, the applicant asks how the 20 May 2015 order can be anything other than a temporary order.
  5. [55]
    I prefer the submissions of the respondent that there is no evidence the Magistrate intended to transform the 20 May 2015 order into a temporary order. He did not make any such express order.  In any event, the circumstances in which a temporary protection order can be made are set out in s 44 of the DVFP Act.  The circumstances do not include the situation at hand. At the time the order was made it was made as a protection order intended to operate for the full 2 year period allowed by law. The result is that the 20 May 2015 order is properly characterised as a full protection order, despite what later became of the order.
  6. [56]
    It is submitted that there is no inconsistency between the DVFP Act and the Justices Act in relation to ex parte hearings.
  7. [57]
    Mr Berthun disagrees that s 142(1)(a) of the Justices Act has no effect on the Weapons Act and says that s 142(2)(a), when applied, makes the 20 May 2015 order a temporary order. There was said to be no application upon which a final order could be made. I reject these submissions. Even if an application for a domestic violence order could be said to relate to a breach of duty as defined under the Justices Act, s 142(2)(a) has no application in these circumstances as it is clearly directed to an application for an order disqualifying a person from holding a licence. We are concerned with an application for a domestic violence order.
  8. [58]
    The fact is that the DVFP Act expressly deals with ex parte orders, appeals from orders and grants power to vary and revoke orders. To the extent that a person is confronted with the choice of appealing an order or seeking a reopening and rehearing to deal with the order, I agree with the submission of counsel for Mr Berthun that there is no conflict between the provisions and that there is no single road to relief.  The provisions are each capable of operation.[9]
  9. [59]
    There are however distinctly different outcomes from an appeal under s 164 and s 165 of the DFVP Act and a rehearing under s 142(6) of the Justices Act.  Only an order from an appellate court setting aside a protection order made by a Magistrate can have the effect of treating the protection order as if it had not been made for the purposes of the Weapons Act. The Weapons Act does not direct itself to the effect of a revoked order under either the DFVP Act or the Justices Act. Such an order cannot have the effect hoped for by Mr Berthun.
  10. [60]
    Mr Berthun says that he was granted a rehearing which means that the Court is to decide afresh the issues as between Mr Berthun and his de facto partner. I take that submission to mean that the effect of the order for a rehearing was to nullify the first order. I do not accept that submission. The order made on 3 August 2015 had prospective effect in providing that the protection order cease to have effect from that date until determination of the rehearing. I agree with the respondent that neither the DVFP Act not the Justices Act give the Magistrate any power to make an order with the retrospective effect of nullifying an earlier order. Only an appellate court can make such an order.
  11. [61]
    I note that despite the extensive and repeated written submissions by Mr Berthun that the 20 May 2015 order was a temporary order, his counsel at the hearing submitted that as the order was made without notice it is void ab initio and had no valid life. I reject that submission because of the terms of s 187(6) of the DVFP Act.

Conclusion

  1. [62]
    On the basis of the submissions of the respondent I find that:
    1. (a)
      from the date of making of the 20 May 2015 order, it had effect as a full protection order, not a temporary order and was not re-characterised by subsequent orders;
    2. (b)
      unless the 20 May 2015 order was discharged on appeal it cannot be treated as not having been made for the purposes of the Weapons Act, by virtue of s 34AA of the Weapons Act;
    3. (c)
      the order made on 3 August 2015 that the 20 May 2015 order cease to have effect until determination operated prospectively and did not have the effect of treating the order as not having been made for the purposes of the Weapons Act. Nor did the order have the effect of nullifying the 20 May 2015 order;
    4. (d)
      the order made on 31 August 2015 revoking the 20 May 2015 order and withdrawing and dismissing the application for an order did not have the effect of treating the order as not having been made for the purposes of the Weapons Act. There was no order which declared the 20 May 2015 order a nullity or otherwise void ab initio;
    5. (e)
      because of s 187 of the DFVP Act, the 20 May 2015 order was not void ab initio, where there was no hearing on the merits;
    6. (f)
      s 142(6) of the Justices Act is not inconsistent with the provisions of the DFVP Act, however it cannot achieve the same outcome as a successful appeal for the purposes of the Weapons Act;
    7. (g)
      the respondent has no discretion to issue a Weapons Licence once a protection order is made unless an appeal court discharges the order.
  2. [63]
    Section 34AA of the Weapons Act does not apply.  Therefore, for the purposes of s 10B(2)(b) of the Weapons Act, a domestic violence order other than a temporary order was made against Mr Berthun with the 5-year period before the First Decision, being the rejection decision.  Accordingly, by virtue of s 10B(2)(b) of the Weapons Act, Mr Berthun is deemed not to be a fit and proper person to hold a weapons licence.
  3. [64]
    Therefore, I am satisfied that the decision of the respondent to reject Mr Berthun’s application for a weapons licence is the correct and preferable decision. I make orders confirming the decision.

Traffic History

  1. [65]
    In case I am wrong, I would be satisfied in any event that Mr Berthun is not a fit and proper person to hold a weapons licence under s 10B(1)(d) of the Weapons Act, and that therefore the First Decision is the correct and preferable decision for the following reasons.
  2. [66]
    Mr Berthun has amassed over 128 demerit points on his driving licence, including 20 demerit points in the 5 years prior to the First Decision. Mr Berthun’s driving record includes speeding offences, 10 separate licence cancellations, unlicensed driving, use of unregistered vehicles and label offences.
  3. [67]
    Mr Berthun acknowledges that his driving history is not exemplary, however he says that he is otherwise a well regarded member of the community. He says that his traffic history without the added feature of the domestic violence order would not be a basis for rejecting Mr Berthun’s application.
  4. [68]
    I accept the submissions of the respondent that Mr Berthun’s traffic history reveals a long disregard for the law. I find that it is reasonable to infer and I draw the inference that Mr Berthun’s ongoing accumulation of traffic offences demonstrates irresponsible and anti-social conduct indicating that he is a risk to public safety.[10]
  5. [69]
    I do not consider it in the public interest that Mr Berthun be granted a licence to possess a firearm.
  6. [70]
    The decision of the respondent is confirmed.

Orders

  1. [71]
    I make the following orders:
    1. (a)
      The application to extend time to review the decision of the respondent made 10 January 2017 is granted.
    2. (b)
      The application to dismiss the application to review the decision of the respondent made 17 April 2017 is granted.
    3. (c)
      The decision to reject Mr Berthun’s application for a Weapons Licence made 10 January 2017 is confirmed.

Footnotes

[1] Crime and Misconduct Commission v Chapman & Anor [2011] QCAT 229.

[2] QCAT Act, s 20.

[3] Urquhart v Queensland Police Weapons Licensing Branch [2011] QCAT 023, [21].

[4] Commissioner of Police Service v Ryle Rockhampton District Court D23/2004 at para 18 and 19; Winters v Cavanagh delivered 20 December 2004 at p. 6.

[5] Peacock v Crowley (Unreported, District Court Appeal 1573/98, McGill DCJ, 20 May 1998), p 8 and p10; Roesch v Queensland Police Service, Weapons Licensing Branch [2013] QCAT 717, [15]-[17].

[6] Roesch v Queensland Police Service, Weapons Licensing Branch [2013] QCAT 717, [20].

[7] Ibid, [21].

[8] Peacock v Crowley (Unreported, District Court Appeal 1573/98, McGill DCJ, 20 May 1998).

[9] Goodwin v Phillips (1908) 7 CLR 1, 10.

[10] Roesch op.ct at [33].

Close

Editorial Notes

  • Published Case Name:

    Anthony William Berthun v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Berthun v Queensland Police Service – Weapons Licensing

  • MNC:

    [2018] QCAT 413

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick

  • Date:

    04 Dec 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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