Larsen v Queensland Police Service – Weapons Licencing
[2023] QCAT 442
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- Unreported Judgment
- Larsen v Queensland Police Service – Weapons Licencing[2023] QCAT 442
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Larsen v Queensland Police Service – Weapons Licencing[2023] QCAT 442
Larsen v Queensland Police Service – Weapons Licencing[2023] QCAT 442
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Larsen v Queensland Police Service – Weapons Licencing [2023] QCAT 442 |
PARTIES: | adrian john larsen (applicant) v Queensland police service – weapons licensing (respondent) |
APPLICATION NO/S: | GAR623-21 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 13 November 2023 |
HEARING DATE: | 28 July 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: |
|
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND REGISTRATION – REVOCATION OF LICNCE – where applicant applied for a category C weapons licence for genuine occupational purposes – where application caretaker/manager of rural property – where no agricultural activities being carried out on the property – where applicant holds a category A and B weapons licence for recreational purposes – whether applicant has established a need for a category C weapons licence for occupational purposes. ESTOPPEL – ESTOPPEL BY JUDGMENT – ISSUE ESTOPPEL – where an earlier decision determined whether applicant had an occupational need for a category H licence – where this review application filed within 12 months of the earlier decision raised the same issue of occupational purpose – whether earlier decision binding. Weapons Act 1990 (Qld), s 3, s 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Commissioner of State Revenue v Harris [2022] QCATA 102 Larsen v Queensland Police Service – Weapons Licensing [2021] QCAT 261 |
Applicant: | Self-represented |
Respondent: | Ms Goddard for the respondent. |
REASONS FOR DECISION
- [1]Mr Larsen lives on a large rural property of some 7,000 acres in the Texas area in south east Queensland. The property is owned by his parents and has been in the family for many years. During the severe drought conditions up to about 2019 the property was destocked. Feed ran out and water was in very short supply. At the time of the hearing before me, despite improved conditions, it remained unstocked and no rural enterprise as such has been carried out on the property since the drought.
- [2]Throughout Mr Larsen has continued to maintain the property as best he can which includes vermin control of feral pigs and dogs. The usual method is by shooting the animals. Baits can be used[1] but this is a danger to native animals. He says he struggles with the control of the feral animals with the firearms he is licensed for and owns because they are centre fire small magazine rifles. His task would be more effective, he says, if he could use a pump action shotgun with solid shot, which is a category C weapon.
- [3]He applied to the respondent for a licence for a category C weapons licence on the basis of a genuine need for occupational requirement for rural purposes.[2] The application was considered by the authorised officer of the respondent. The officer asked for further information to establish whether there was a genuine reason but was not satisfied that such a reason was established. The authorised officer rejected the application by an Information Notice dated 26 November 2021.
- [4]On 29 October 2021 Mr Larsen filed an application to review the decision of the authorised officer “on or before 22nd October 2021.[3] It seems the application for review was premature and related to a letter received from the respondent which is headed “First and Final Notice” requiring further information to establish the genuine reasons, mainly because no rural or pastoral activity was being carried out on the land at the time. Mr Larsen obviously assumed this was a final decision but the actual decision came later.
- [5]The respondent has not taken any objection to the review date in the application. Technically the application now under consideration is not a review of the respondent’s decision dated 26 November 2021. No review of that decision has been filed and therefore Mr Larsen is out of time, and no application to extend time has been made. However, the application proceeded on the basis that the decision of 26 November 2021 was the decision being reviewed. I propose to direct that the application be amended so that the date of the decision is 26 November 2021.
- [6]As this is a review of the respondent’s decision to reject the applicant’s application for a weapons licence, section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) requires me to make the correct and preferable decision by way of a fresh hearing on the merits. That is to have regard to the evidence filed by both parties and also the further evidence given at the hearing. However, in doing so I must also have regard to the application of the general law, including whether the doctrine of estoppel prevents further consideration of Mr Larsen’s application.
- [7]The respondent raised an issue at the commencement of the hearing about whether the Tribunal had already reviewed the decision under review in this application. On 7 July 2022 the Tribunal[4] made a decision confirming the respondents decision to reject the applicant’s application for a category C & H licence. The reasons for the decision record that Mr Larsen sought renewal of his Category C and Category H licence.[5] The renewal application for the category H licence was rejected and Mr Larsen filed the application for review of that decision to reject the category H application, not both C and H. The main issue in the review application was whether Mr Larsen had a genuine need for this class of weapons for occupational purposes. The Tribunal said at [23]:
The Tribunal accepts Mr Larsen is required to undertake duties as a manager and that this includes management of feral pests. The Tribunal accepts that he is mostly a responsible gun owner, apart from the one lapse of enabling a 12 year old to shoot on his property without a licence.
- [8]However, on considering all of the evidence including witnesses statements, and Mr Larsen’s evidence, the Member was not satisfied that there was any primary production being undertaken on the property. The Tribunal went onto say at [27]:
The Tribunal accepts that he is a manager of the property but does not find that the property is one that is carrying on primary production at the current time, such as sales data of stock (sic), receipts for feed or anything that would indicate ongoing business activities. Mr Larsen did attest that he was in the process of renting parts of the property out for agistment purposes.
- [9]During the hearing before me, Mr Larsen confirmed that nothing had changed at the property in terms of primary production. He also contends that the review before the Tribunal in GAR056-21 was confined to the Category H licence only. Despite that, the learned member in that matter concluded her reasons by saying at [32]:
The Tribunal affirms the decision of the Queensland Police Service and upholds rejection of the application for a category C and H firearms
- [10]Subsequent to the hearing I reviewed the file in GAR056-21 and satisfied myself that the review only related to a category H licence. Be that as it may, the reasons for the decision addressed the fundamental basis for requiring the license, which was a genuine occupational need. The category of weapon he was applying for became largely irrelevant because the issue was whether he established a genuine reason.
- [11]
[14] The whole point of issue estoppel is that, once the parties have litigated a particular issue and it has been determined by judicial proceedings, they are bound by it, and, subject to only very limited exceptions none of which was relied on by the appellant, that issue cannot be litigated again in later proceedings. It is not confined to an issue having been decided on a particular basis, and the same issue, arising on the same basis, having to be decided also in the later proceedings. Once it is identified as the same issue, it is not to be litigated in the later proceedings at all.
[15] This is made clear by the passage in the judgment of Dixon J in Blair v Curran (1939) 62 CLR 464 at 531 – 532, quoted by the Member at [43] of her reasons. I need not repeat the quotation, but would identify as particularly relevant the proposition from it that: “In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established.” In the present matter, the right the respondent sought to establish was that in the 2016 year his liability to land tax was to be assessed on the basis that the LTA s 20 applied to the relevant land. In order to establish that right, he needed to show that he held the land as trustee, for the purposes of that section. That was the very question which was decided by the Appeal Tribunal, by the finding in its reasons at [94]. It therefore gave rise to an issue estoppel.
[16] The Member referred to relevant authorities, and I would merely add a reference to the judgment of Frazer JA, with whom Muir and White JJA agreed, in Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 at [90]. His Honour quoted there a passage from the Judgment of Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 dealing with issue estoppel. Like res judicata, issue estoppel is based on the broad rule of public policy, expressed in the maxim interest reipublicae ut sit finis litium, it is in the public interest that there be an end to litigation. At some point a line has to be drawn to avoid wasting resources and oppressing parties, and the policy of the law has drawn it at a final decision, subject to any rights of appeal. Thereafter it does not matter if the parties did not litigate the issue properly by their own errors, or if the court made some error of fact or law. The decision on the issue stands, and binds the parties in the future
- [12]The basis upon which Mr Larsen applied for a category C weapons licence is on a genuine need for occupational purposes. The rejection of the application for the licence was based a failure on the part of Mr Larsen to provide sufficient evidence to the authorised officer of such a need so as to licence him for a pump action shotgun, a category C weapon.
- [13]What Mr Larsen is seeking to do in this application is to revisit the conclusion reached by the Tribunal in the review of the category H licence decision. Having regard to the principles of issue estoppel, and as there has been no appeal of that decision, the earlier decision must be taken to be correct for the purposes of this application. On that basis the decision of the authorised must be confirmed.
- [14]Neither party specifically raised the question of issue estoppel, either in written submissions or before me at the hearing. Ms Goddard for the respondent did bring my attention to the earlier decision and submitted generally it was relevant to the decision of the authorised officer under review before me. I considered calling for further submission on the point but saw little utility in doing so because there was really no factual contest about what happened in the earlier review application and the reasons for decision speak for themselves. The same evidence, although not as comprehensive in that matter, was relied on in this application.
- [15]In the alternative, in reviewing the authorised officer’s decision under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), I have come to the conclusion the decision of the authorised office is the correct and preferable decision. I do so in reliance of the following matters.
- [16]In having regard to the objects of the he Weapons Act 1990 (Qld) (“the Act”), the granting of a licence is not as of right and is subordinate to the need to ensure public safety. This is achieved by the imposition of strict conditions on the possession of weapons, their storage and carriage.[8] An applicant for a weapons licence must have one of the genuine reasons set out in s 11 of the Act. Importantly, the category of weapons licence will depend on the genuine reasons. By way of example, a recreational shooter would not be issued with a licence for a pump action shotgun or a pistol. Whereas, for a security guard a licence for a pistol may constitute a genuine reason depending on the nature of the work.
- [17]Accepting, that Mr Larsen is a responsible gun owner,[9] already holding a category A and B licence for a number of weapons for recreational shooting, his current circumstances do not involve him in carrying our primary production on the property. He does not own the property but manages it as a caretaker for his parents. I accept his evidence that because of severe drought conditions, the property was destocked due to lack of feed and water. Also I accept there is a problem with feral animals, mainly pigs. There are photographs of deer in the material which also need to be controlled.
- [18]I have had regard to the statement of Mr Finucane, a police officer, who knows Mr Larsen and has visited the property. He expresses the opinion that given the nature of the terrain on the property, it would be more efficient for Mr Larsen to have a handgun, or weapon with large magazine capacity and ability to fire quickly. I note in the applicant’s weapons list, he has two Ruger .223 rifles with a magazine capacity of 10 and other high calibre rifles (.357 and .308) with a magazine capacity of 5. Although bolt action, they can be fired in quick succession and by the time 10 shots are fired, one could reasonably assume that the group of the particular target, e.g. pigs, would have scattered. As for carrying a weapon, the shotgun may not be as long as say, a .357 or .223 but it would still need the same accommodation either on a quad bike or a vehicle. I am not convinced a better outcome would be achieved with a pump action shotgun which has limited range.
- [19]Because Mr Larsen is in a managerial role and there is no livestock on the property that would require his attention on a day to day basis, I am of the view he has sufficient weaponry, and time, to address the feral animal problem using his recreational shooters licence.
- [20]Turning then to the principal reason for the decision of the respondent. Mr Larsen has not satisfied me that the genuine reason is for occupational purposes, being the operation of a rural enterprise.
- [21]I therefore propose to confirm the decision of the authorised officer on two bases. Firstly, an estoppel is raised having regard to the Tribunal’s decision in GAR056-21 by which Mr Larsen is bound. Secondly and alternatively, I am satisfied that despite the suggested utility of using a category C licence in the control of feral pigs, in particular, if a genuine occupational need cannot be established then there is no basis upon a licence for that category should be issued to the applicant.
- [22]The decision of the respondent is confirmed.
Footnotes
[1] A common bait is known as 1080.
[2] Weapons Act 1990 s 11(c).
[3] Application for Review – Part B.
[4] Larsen v Queensland Police Service – Weapons Licensing [2022] QCAT 261
[5] Ibid [3]
[6] ibid
[7] [2022] QCATA 102 at [14]
[8] Weapons Act 1990 (Qld), s 3.
[9] Witness statements from Mark Ireland, Michael Scott, Ewan McLeod, Mark Why, Mark Hobbs and Sgt Gregory Finucane.