Messina v Queensland Police Service – Weapons Licensing
[2023] QCAT 167
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- Unreported Judgment
- Messina v Queensland Police Service – Weapons Licensing[2023] QCAT 167
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Messina v Queensland Police Service – Weapons Licensing[2023] QCAT 167
Messina v Queensland Police Service – Weapons Licensing[2023] QCAT 167
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Messina v Queensland Police Service – Weapons Licensing [2023] QCAT 167 |
PARTIES: | DANIEL MICHAEL MESSINA (applicant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) |
APPLICATION NO/S: | GAR494-22 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 16 March 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where leave for legal representation sought – where application for leave opposed by other party – whether interests of justice require leave to be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21, s 43 Weapons Act 1990 (Qld), s 10B Kilpatrick v Tighnabruaich Properties Pty Ltd [2011] QCATA 208 |
APPEARANCES & REPRESENTATION: | 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]Mr Messina filed an application to review a decision made by the Queensland Police Service – Weapons Licensing (‘QPS’) on 18 October 2022 to refuse an application for a change in his firearms licence conditions.
- [2]Mr Messina is currently licenced for category A, B and C firearms, and had sought a licence for category D firearms. Category D firearms include semi-automatic centre-fire rifles, semi-automatic shotguns (>5 rounds) and semi-automatic rimfire rifles (>10 rounds) or lever action shotguns with a magazine capacity of more than five rounds.
- [3]Mr Messina subsequently filed an application for leave to be represented by David Neuendorf of Robert Bax & Associates on 20 January 2023. This application is opposed by the QPS.
Leave to be represented
- [4]Section 43(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provides that parties in proceedings before the Tribunal are to represent themselves unless the interests of justice require otherwise.
- [5]In accordance with sections 43(1) and 43(2)(b)(iv), Mr Messina requires the leave of the Tribunal to be legally represented.
- [6]The requirement for leave appears to relate only to appearances before the Tribunal, whether that be at a hearing, directions hearing or compulsory conference. It does not appear to extend to the drafting of documents necessary for the proceeding. As the Appeal Tribunal observed in Kilpatrick v Tighnabruaich Properties Pty Ltd [2011] QCATA 208 at [19]:
Although s 43 has, as its purpose, that parties represent themselves unless the interests of justice otherwise require it, nothing in the Act prevents a party from having a lawyer assist in the preparation of material.
- [7]Section 43(3) of the QCAT Act relevantly provides as follows:
- (3)In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave—
- (a)the party is a Stage agency
- (b)the proceeding is likely to involve complex questions of fact or law;
- (c)another party to the proceeding is represented in the proceeding;
- (d)all of the parties have agreed to the party being represented in the proceeding.
- [8]I will consider each of these factors in turn.
“The party is a State agency”
- [9]Mr Messina is not a Stage agency.
“The proceeding is likely to involve complex questions of fact or law”
- [10]The basis upon which the change of conditions to Mr Messina’s firearms licence was refused is recorded in the decision under review as follows:
I considered that before a person can have a genuine occupational requirement, they must establish that it is required for their employment or occupation. I considered that there was nothing to indicate that it was necessary or that there was a special need that was part of your employment or occupation, that required the use of a category D firearm on the nominated properties.
- [11]Accordingly, the issue before the Tribunal is whether a category D firearms licence is “necessary” in the conduct of Mr Messina’s business or employment for the purposes of section 13(5) of the Weapons Act 1990 (Qld).
- [12]Mr Messina provided what appear to be pro forma submissions in support of his application for leave to be represented, which related to whether he was a fit and proper person to hold a firearms licence. This is not the issue in the present case. Amended submissions were lodged on 6 March 2023, which added (amongst other things) that:
The Respondent is aware of the case law, and the high threshold of when a weapon is necessary or there being a special need. The Applicant is significantly disadvantaged because he does not have the experience to refer and apply such case law, which the tribunal will use as a yardstick in coming to a decision.
- [13]I do not find this submission to be persuasive. Mr Messina is a sugar cane farmer who seeks a licence for a semi-automatic weapon with a high capacity magazine. This poses no factual complexity. The Weapons Act requires such a weapon to be “necessary” for Mr Messina’s occupation. This poses no legal complexity. It is trite to say that even the most straightforward matters before the Tribunal involve findings of fact and the application of legislation.
- [14]In my view, the questions of fact and law to be determined by the Tribunal, as set out above, could not be described as complex.
“Another party to the proceeding is represented in the proceeding”
- [15]The QPS is not legally represented. As noted in its submission:
The respondent is a publicly funded body who are represented in QCAT by a Police Officer with no legal qualifications and no prosecutorial experience or training.
“All of the parties have agreed to the party being represented in the proceeding”
- [16]The QPS has not agreed to Mr Messina being legally represented.
Disposition
- [17]The Tribunal’s discretion when considering whether to grant leave for a party to be represented is exercised in the context of the requirements of the interests of justice as set out in section 43(1), as well as the additional factors set out in section 43(3).
- [18]I am not persuaded that it is in the interests of justice to grant leave for Mr Messina to be legally represented. The application for leave to be represented is dismissed.