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Applicant QRS v Queensland Police Service – Weapons Licensing[2022] QCAT 20

Applicant QRS v Queensland Police Service – Weapons Licensing[2022] QCAT 20

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Applicant QRS v Queensland Police Service – Weapons Licensing [2022] QCAT 20

PARTIES:

APPLICANT QRS

(applicant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

GAR601-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

18 January 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1. The application to stay a decision filed on 22 October 2021 is refused.
  2. Publication of the applicant’s name, other than to the parties to this proceeding, is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act 2009.

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, s 66

Weapons Act 1990 (Qld), s 38, s 29

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

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

P Moretimer

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 22 September 2021, the Queensland Police Service – Weapons Licensing (‘QPS’) decided to revoke the applicant’s firearms licence.
  2. [2]
    On 22 October 2021, the applicant lodged an application to review with the Tribunal.  On the same day, he also lodged an application to stay the decision under review.

Suspension and revocation of firearms licences

  1. [3]
    Section 28 of the Weapons Act 1990 (Qld) (‘the Act’) give an authorised officer the power to suspend a firearms licence.  It relevantly provides:
  1. (1)
    An authorised officer may, by a suspension notice given to a licensee, suspend the licence if the authorised officer—

…

  1. (b)
    considers, on reasonable grounds, that the licensee may no longer be a fit and proper person to hold a licence.
  1. (2)
    The licence is suspended until—

…

  1. (c)
    if subsection (1)(b) applies—the earlier of the following days—
  1. (i)
    the day the authorised officer is satisfied the person is a fit and proper person to hold a licence and lifts the suspension;
  2. (ii)
    the day 90 days after the licence is suspended.
  1. [4]
    Section 29 of the Act gives an authorised officer the power to revoke a firearms licence.  It relevantly provides:
  1. (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—

…

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

Grounds for granting a stay

  1. [5]
    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. [6]
    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.

The applicant’s mental health

  1. [7]
    The applicant has provided the Tribunal with a number of reports relating to his mental health.
  2. [8]
    In a report dated 8 February 2021, the applicant’s general practitioner Dr Reuben Scott wrote:

He has indeed recently been diagnosed with Delusional Disorder that has possibly been present for a number of years, however has been undiagnosed.  [The applicant] does not currently have any insight to his condition.  As you note [the applicant] believes he is under surveillance and being persecuted by others.  I note that I have never heard him consider a violent response, but people who are in his circumstances are at elevated risk of impulsive decisions.

…

I understand that at this time his licence has been suspended as opposed to revoked.  I think it would be beneficial to [the applicant] if the suspension is extended for 6-12 months, until his response to treatment has been fully observed and his treating psychiatrist is able to support his application.

  1. [9]
    On a report dated 14 October 2021, the applicant’s psychologist Tony Weightman wrote:

[The applicant] is applying for a STAY OF DECISION for the revocation of his firearms licence and, in my capacity as his treating psychologist, I wish to respectfully submit a request in support of [the applicant’s] application to delay any final decisions in this matter.  I estimate that [the applicant’s] therapy may continue for a period of a further 6 months at which time, I trust, that [the applicant’s] position may be better reassessed.

Please be advised that [the applicant’s] therapy is progressing well at this time, however, further therapy time is required to properly and comprehensively ascertain the appropriate competence with regard to this matter.

Consideration

Good arguable case

  1. [10]
    The medical evidence provided by the applicant has recommended that his licence should continue to be suspended for periods of time between six and 12 months.  However, s 28(3)(c)(ii) makes it clear that a suspension on the grounds that the licensee is no longer a fit and proper person can run for no longer than 90 days.  The medical evidence does not support ending the suspension of the applicant’s firearms licence after 90 days.
  2. [11]
    I emphasise that it is not the Tribunal’s role to determine the merits of the review in deciding a stay application.  The applicant 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 the applicant’s prospects of success in the review application are poor.

Person whose interests may be affected by making the order

  1. [12]
    The applicant stated in his review application that rifle shooting is a low exertion sport that he thoroughly enjoys and does not physically exhaust him.  He also stated that he would like to re-engage with his fellow shooters socially at the local rifle range.
  2. [13]
    The applicant does not rely on his firearms licence for his livelihood.

Public interest

  1. [14]
    The principles of the Act include a statement in s 3(1)(a) that ‘weapon possession and use are subordinate to the need to ensure public and individual safety’. 
  2. [15]
    I consider that the public interest would require a stay of the revocation decision to be refused in circumstances where the suspension cannot be extended beyond 90 days, and where the medical evidence indicates that the suspension should continue.

Disposition

  1. [16]
    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 to public safety outweighs any impact on the applicant.
  2. [17]
    It follows that I am not satisfied that it is desirable to issue a stay.  The application to stay a decision is therefore dismissed.
  3. [18]
    Given the applicant’s psychological conditions, I order that the publication of his name, be prohibited other than to the parties to the proceeding pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Footnotes

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

Close

Editorial Notes

  • Published Case Name:

    Applicant QRS v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Applicant QRS v Queensland Police Service – Weapons Licensing

  • MNC:

    [2022] QCAT 20

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    18 Jan 2022

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

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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