Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2021
  4. Hovey v Queensland Police Service – Weapons Licensing - [2021] QCAT 446

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Hovey v Queensland Police Service – Weapons Licensing[2021] QCAT 446

Hovey v Queensland Police Service – Weapons Licensing[2021] QCAT 446

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hovey v Queensland Police Service – Weapons Licensing [2021] QCAT 446

PARTIES:

BRETT ANTHONY DEAN HOVEY

(applicant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

GAR611-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

1 December 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The application to stay a decision filed on 1 November 2021 is refused.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application filed to review decision revoking applicant’s firearms licence – where applicant seeking stay of cancellation – whether arguable case

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22

Weapons Act 1990 (Qld), s 29, s 60

Weapons Regulation 2016 (Qld), s 94

Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

D Ayscough

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

  1. [1]
    On 15 October 2021, the Queensland Police Service – Weapons Licensing (‘QPS’) decided to:
    1. (a)
      reject Mr Hovey’s application for a concealable firearms licence; and
    2. (b)
      revoke his firearms licence.
  2. [2]
    On 1 November 2021, Mr Hovey lodged an application to review with the Tribunal.  On the same day, he also lodged an application to stay the decision under review.
  3. [3]
    I note that the stay application necessarily relates to the revocation decision only.

Revocation of firearms licences

  1. [4]
    Section 29 of the Weapons Act 1990 (Qld) (‘the Act’) gives an authorised officer the power to revoke a firearms licence.  It relevantly provides:

(1) An authorised officer may, by a revocation notice given to a licensee, revoke the licensee’s licence if the authorised officer is satisfied of any of the following things—

(a) the licence has been obtained through fraud or deception;

(b) the licensee has been convicted of an offence against any law in force in Queensland or elsewhere involving the use, carriage, discharge or possession of a weapon;

(c) the licensee has contravened a condition, participation condition or special condition of the licence;

(d) the licensee is no longer a fit and proper person to hold a licence;

  1. [5]
    Section 60(1) of the Act imposes the following condition on a firearms licence:

A licensee who has control of a weapon at a place must keep the weapon in secure storage facilities at the place when a person is not in physical possession of the weapon.

Maximum penalty—100 penalty units or 2 years imprisonment.

  1. [6]
    This condition is further particularised in the Weapons Regulation 2016 (Qld) (‘the Regulations’):

94 Storage of particular weapons not in person’s physical possession—secure storage facilities

…

(2) A person who possesses a weapon must, when the weapon is not in the person’s physical possession, store it unloaded in a locked container complying with subsections (5) and (6), with the weapon’s bolt removed or its action broken.

…

(5) For subsection (2), the container must—

…

(b) for any other weapon—

(i) be a rigid structure made of solid steel or solid timber; and

(ii) if the container weighs less than 150kg—be securely fixed to the frame or floor of a permanent building.

(6) Also for subsection (2), the container must also—

(a) have a sturdy combination lock, keyed lock or keyed padlock; and

(b) always be locked (other than for the time necessary to insert or remove a weapon, or something else, for a proper purpose).

Grounds for granting a stay

  1. [7]
    The Tribunal’s power to grant a stay of a reviewable decision is to be found in s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).  The Tribunal may grant a stay if it considers the order is desirable after having regard to the factors set out in sub-section (4):
    1. (a)
      the interests of any person whose interests may be affected by the making of the order or the order not being made;
    2. (b)
      any submissions made to the tribunal by the decision-maker for the reviewable decision;
    3. (c)
      the public interest.
  2. [8]
    The Tribunal, in considering stay applications, also takes into account the tests applied by the courts in respect of stay applications.  The tests for the granting of a stay were set out by Jerrard JA in Elphick v MMI General Insurance Ltd & Anor as follows:[1]

To succeed on an application for a stay the applicants must show good reason for the stay to be granted and that it is an appropriate case in which to grant a stay. Those authoritative decisions in this court establish that an applicant should demonstrate:

  • A good arguable case on appeal.
  • That the applicant will be disadvantaged if a stay is not ordered.
  • That competing disadvantage to the respondent should the stay be granted, does not outweigh the disadvantage suffered by the applicant if the stay not be granted.

Mr Hovey’s criminal record

  1. [9]
    On 21 June 2021, the QPS attended at Mr Hovey’s resident address.  According to the Queensland Police Service Court Brief:

Upon arrival police were unable to raise or make contact with any person at the residence and could smell a foul odour emitting from within the dwelling.

Police conducted a perimeter search of the dwelling and made entry under the provisions of the PP&RA, through an unlocked garage lift door at the rear of the residence before conducting an internal search of the dwelling.

During this search police accessed a tall double door and medium sized single door lightweight wooden chipboard set of cabinets unfixed and freestanding next to one another under the staircase on the lower level of the dwelling.

Neither of the swing door cabinets had any security measures, locks or mechanisms in place to prevent entry and police located a total of six (6) unsecured weapons, namely:

  • Category A rimfire rifle Serial No [omitted]
  • Category A Shotgun Serial No [omitted]
  • Category B Centre fire rifle Serial No [omitted]
  • Category B Centre fire rifle Serial No [omitted]
  • Category B Centre fire rifle Serial No [omitted]
  • Category H rimfire pistol Serial No [omitted]

At approximately 12:20 pm the Defendant returned to the residence while police were in attendance and spoke with them stating he had just returned from the firing range and had brought the weapons to the address the night before and was intending on arranging a safe to store the weapons in, on this same date at the incident location.

The Defendant informed the police that he had another firearm in his vehicle that he returned to the incident location with, namely:

  • Category H rimfire pistol Serial No [omitted]

Police subsequently conducted an audit of these same firearms which had the bolts removed and trigger guard locks affixed to three of the Category A & B weapons, with another stored in a metal combination locked gun carry case and the Cat A shotgun … action unbroken in a material carry bag.

Whiles conducting this audit the Defendant produced to police another firearm, namely:

  • Category H handgun Serial No [omitted]

Advising the firearm had also been stored in the same wooden medium sized single door cabinet at the time of police attendance.

The Defendant could offer no lawful or emergent reason for failing to secure the eight (8) weapons in accordance with his licence conditions and was issued a Notice to Appeal at the Rockhampton Magistrates Court …

  1. [10]
    Mr Hovey subsequently entered a plea of guilty to an offence under s 60(1) of the Act, and was fined $1,150.  No conviction was recorded.

Consideration

Good arguable case

  1. [11]
    The issues for the Tribunal in the review proceedings are:
    1. (a)
      whether a ground for revocation of a firearms licence set out in s 29 of the Act is established; and
    2. (b)
      if so, whether the discretion should be exercised to revoke Mr Hovey’s firearms licence.
  2. [12]
    Mr Hovey, by his plea of guilty, has admitted to contraventions of a condition of his firearms licence for the purposes of s 29(1)(c) of the Act.
  3. [13]
    In relation to the exercise of the discretion, Mr Hovey stated in his application for review that he made some poor decisions as he was under stress due to moving and his friend was in intensive care in hospital.  Mr Hovey also provided a number of character references.
  4. [14]
    In Wardrope v Queensland Police Service – Weapons Licensing [2020] QCAT 409 at [22], I stated:

It is trite to state that unsecure storage of firearms, as well as possession of unregistered firearms, gives rise to a risk to public safety. 

  1. [15]
    I emphasise that it is not the Tribunal’s role to determine the merits of the review in deciding a stay application.  Mr Hovey will have an opportunity to present further evidence and material which may be relevant to the review application before a final hearing.  However, based on the material before the Tribunal to date, I consider that Mr Hovey’s prospects of success in the review application are poor.

Person whose interests may be affected by making the order

  1. [16]
    Mr Hovey stated in his review application that he would like to ‘continue to help farmers with their feral animals as this helps to support the household through mitigation permits’.
  2. [17]
    Mr Hovey has not provided any evidence of loss of income, tax returns, loss of sales or other relevant information that suggests he is reliant upon firearms for his income.
  3. [18]
    As the QPS pointed out in its submissions, Mr Hovey would have been in contravention of his licence conditions had he used his firearms in an occupational capacity in any event.

Public interest

  1. [19]
    The principles of the Act include a statement in s 3(1)(b) that ‘public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons’. 
  2. [20]
    I accept the QPS submission that the public is entitled to expect a licence holder to comply with the conditions of their licence, and to secure those firearms and ammunition in a safe and appropriate manner. 

Disposition

  1. [21]
    In order to issue a stay, I must be satisfied that it is desirable to do so.  In the circumstances of this matter, the public interest in paramount.  I consider that the risk unsecured storage of firearms poses to public safety outweighs any impact on Mr Hovey.
  2. [22]
    It follows that I am not satisfied that it is desirable to issue a stay.  The application to stay a decision is therefore dismissed.

Footnotes

[1] [2002] QCA 347, [8] (footnotes omitted).

Close

Editorial Notes

  • Published Case Name:

    Hovey v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Hovey v Queensland Police Service – Weapons Licensing

  • MNC:

    [2021] QCAT 446

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    01 Dec 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Elphick v MMI General Insurance Ltd [2002] QCA 347
2 citations
Jump To
Cite 1 - [2002] QCA 347
Cite 2 - [2002] QCA 347
Wardrope v Queensland Police Service – Weapons Licensing [2020] QCAT 409
1 citation
Jump To
Cite 1 - [2020] QCAT 409

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.