William John Dale v Queensland Police Service - Weapons Licensing
[2023] QCAT 216
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- Unreported Judgment
- William John Dale v Queensland Police Service - Weapons Licensing[2023] QCAT 216
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William John Dale v Queensland Police Service - Weapons Licensing[2023] QCAT 216
William John Dale v Queensland Police Service - Weapons Licensing[2023] QCAT 216
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | William John Dale v Queensland Police Service - Weapons Licensing [2023] QCAT 216 |
PARTIES: | William John Dale (applicant) v Queensland Police Service - Weapons Licensing (respondent) |
APPLICATION NO/S: | GAR222-19 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 19 June 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member King-Scott |
ORDERS: |
|
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND RELATED MATTERS – LICENCES – ISSUE OF AND GENERALLY where application to review revocation order – where licence expired before review heard – where even if successful in review applicant would have to reapply for a licence – where application to review now futile – where application to strikeout application for review under s. 47 of Queensland Civil and Administrative Tribunal Act 2009 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Weapons Act 1990 (Qld) |
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) |
Applicant: | C F C Wilson of counsel instructed by Wonderley & Hall |
Respondent: | Senior Sergeant Ayscough |
REASONS FOR DECISION
- [1]Mr Dale had his weapons licence revoked on 17 May 2019 as the Queensland Police Service - Licensing Branch (QPS) considered he was not a fit and proper person to hold a licence following some recent convictions of being in possession of tainted property and some firearm offences.
- [2]Mr Dale filed an Application to review that decision on 20 June 2019. Before that application could be heard his firearm licences expired on 28 July 2019.
- [3]QPS has now filed an Application for miscellaneous matters to have the Review application struck out pursuant to s. 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) on the ground that it is misconceived and/or lacking in substance.
- [4]QPS submits that there is no utility in proceeding with the review when the licences have expired. It submits that Mr Dale should file a fresh application for the relevant licences. If the application is successful then the review application would not be necessary.
- [5]Mr Dale opposed the strike out application.
- [6]His submissions can be summarised as follows:
- (a)As the licences have been revoked the previous expiration dates of the licences is of no further relevance.
- (b)The licences have been revoked and that is the reason they can’t be renewed not because they have expired;
- (c)There is no reason for the Mr Dale to have any comfort or confidence that a licence would be granted on a fresh application;
- (d)If he makes a fresh application and it is refused a review would be on the same basis and costs of the initial review application would be wasted.
- (e)Although Mr Dale would still have to apply for a fresh licence even if successful in the review application he would be armed with and benefit from the findings of the Tribunal.
- (a)
- [7]Counsel for Mr Dale submits that the definition of licence in Schedule 2 of the Weapons Act 1990 (Qld) combined with section 24 of the QCAT Act recognises that a licence issued under the Weapons Act 1990 (Qld), which is the subject of a reviewable decision may result in the Tribunal confirming or amending the reviewable decision, setting aside and substituting its own decision or set aside the decision and returning the matter for reconsideration to the decision maker with such directions as it considers appropriate and in that event, a review decision has effect from when the reviewable decision takes or took effect. Mr Dale’s application was delayed by Covid pandemic and was not caused by any dilatory conduct on his behalf.
Legislation
- [8]Section 10 of the Weapons Act 1990 (Qld) provides the conditions under which a licence will be issued and includes a requirement that the person must be considered a fit and proper person to hold a licence. Section 49A provides that the licence authorises a licensee to possess and use a weapon or category of weapon endorsed on the licence for any lawful purpose.
- [9]The following are other relevant provisions of the Weapons Act 1990 (Qld):
- 20Term of licence
- (1)A licence, other than a replacement licence, remains in force for the term stated on the licence which must not be more than—
- (a)if the licence is for a category A or B weapon—10 years; or
- (b)if the licence is for a weapon other than a category A or B weapon—5 years.
- …
- (6)Also, a licence, including a replacement licence, stops being in force if—
- (a)it is suspended, cancelled, revoked or surrendered; or
- (b)the licensee dies or is disqualified from holding the licence; or
- (c)for a minor’s licence—the licensee turns 18.
- 20AContinuation of licence until renewal application dealt with
- (1)This section applies if—
- (a)a licensee applies under section 18 for the renewal of a licence; and
- (b)the application is not decided on or before the day the licence expires.
- (2)The licence, as in force immediately before its expiry, continues in force, as if it had not expired, until the first of the following happens—
- (a)the authorised officer deciding the application approves the application and renews the licence;
- (b)the authorised officer deciding the application rejects the application and gives the applicant the notice of rejection under section 19(1);
- (c)42 days elapse after the licence’s expiry.
- 29Revocation of licence by giving revocation notice
- (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)…
- …
- (d)the licensee is no longer a fit and proper person to hold a licence;
- (5)This section does not prevent an authorised officer reinstating a licence that is revoked by the authorised officer because of a mistake of fact.
- (6)A licence reinstated under subsection (5) is taken not to have been revoked.
- (7)The licence may be reinstated by—
- (a)returning the licence; or
- (b)issuing a fresh licence.
Dismissal under s. 47 of the QCAT Act
- [10]The relevant provision of the QCAT Act is as follows:
- 47Dismissing, striking out or deciding if unjustified proceeding or part
- (1)This section applies if the tribunal considers a proceeding, or a part of a proceeding is—
- (a)frivolous, vexatious or misconceived; or
- (b)lacking in substance; or
- (c)otherwise an abuse of process.
- [11]I have been referred to a number of decisions of the Tribunal relating to the matters to be considered in an application to dismiss a proceeding. It is clear from those authorities that such action should only be taken in the clearest of cases.
- [12]The decision of Dey v Victorian Railways Commissioners[1] is authority for the proposition that in considering a strikeout application, the evidence should be weighed in order to reach a conclusion about whether or not a claimant has an arguable case. It does not require a determination on the merits. Striking out should be sparingly granted to prevent abuse of process when a claim is groundless or futile. But if there is a real question of law or fact to be determined, then summary dismissal is not appropriate. A lack of any cause of action must be very clear. The party seeking to strike out must demonstrate a high degree of certainty about the outcome if the proceeding is allowed to continue.
- [13]
The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
- [14]
- [14]The power conferred by s 47 is in the nature of a summary judgment power. There is no temporal constraint on when such an application may be brought. An application to dismiss pursuant to s 47 may be brought at an interlocutory stage of a proceeding or conceivably after the evidence of the applicant has been heard, in other words, a ‘no case to answer’.
- [15]The principles relevant to the exercise of the analogous power found in s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) have been expressed as follows:
- VCAT should exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless, obviously unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where a Respondent can show a good defence sufficient to warrant the summary termination of the proceeding.[4]
Relevant case law
- [15]In Webber v Moreton Bay Regional Council (No.2)[5] the tribunal stated, in a matter where the decision maker withdrew the decision that was subject to review, that:
Section 47 has a valid role to play in ensuring that cases objectively lacking substance do not place a respondent in the position of having to devote time and resources to meeting a case that has little or no chance of succeeding. When bringing an early end to a case, QCAT should be satisfied that the factors in favour of a person having the opportunity to continue to seek review of an administrative decision have been clearly outweighed by factors involving the proper use of QCAT’s resources and factors involving fairness to a respondent.[6]
- [16]The above decision was quoted with approval in Queensland Police Service – Weapons Licensing v Fowkes. [7] The facts of that decision are that Mr Fowkes was a collector of firearms. Shortly before ANZAC Day 2016, he was granted an exemption from the operation of the Weapons Act 1990 (Qld) to enable him to display his weapons at the ANZAC Day memorial. After ANZAC day, Mr Fowkes applied for a review of the exemption. He was aggrieved by the extensive delays in processing his application. He was aggrieved that he received the decision at a time which left him little time to prepare. He was aggrieved that the exemption was limited in the number of weapons he could display, whereas previous exemptions had been unlimited. He felt that he had not received adequate reasons for the decision. He thought the requirement that the weapons be secured was impractical.
- [17]QPS asked the tribunal to dismiss Mr Fowkes’ application pursuant to s 47 of the QCAT Act on the basis that the exemption was for a specific time, which had passed.
- [18]The Senior Member found the subject matter of the exemption, the display on 25 April 2016, had occurred. Mr Fowkes had been granted a general exemption to display the collection as he intended and there was no utility in the application.
Resolution
- [19]It is clear from the legislation that a licence to use a weapon is a privilege and not a right. A licence stops being in force when it is revoked. The period a licence remains in force is finite and time can only be extended in the circumstances allowed for in the legislation, none of which applies in the instant case.
- [20]I do not accept that the expiration date for a licence is no longer relevant when the licence is revoked. Should the review have been successful, and the licence had not expired the licensee would still be required to renew it before it expired.
- [21]Obviously, when revoked the licence could not be renewed unless the review application was successful, or it was reinstated by the authorised officer.
- [22]I agree that it would be surprising if Mr Dale was successful on a fresh application until the matters which led to his revocation were addressed. It is unlikely that the authorised officer would change his/her opinion without further or fresh evidence.
- [23]Mr Dale argues that costs would be thrown away if the application to review is struck out and that there is utility in hearing the review as QPS would have the benefit of the Tribunal’s findings when considering a fresh application, assuming Mr Dale was successful. The anthesis of that argument is that if Mr Dale’s review application is heard by the Tribunal and he loses. He still could apply afresh for a licence. If that is refused and he seeks a review of that application, there is also a duplication of costs. As the same issues that would arise in a fresh application are likely to be identical to the issues in the present review application, the costs thrown away then, in my opinion, would be minimal.
- [24]In my opinion the application is now futile. If Mr Dale’s application for review were to proceed and be successful he will not achieve the relief he, ultimately, is seeking being the reinstatement of his licence.
- [25]I allow QPS application and dismiss Mr Dale’s application to review.