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- Unreported Judgment
De Silva v Queensland Police Service - Weapons Licensing Unit QCATA 65
De Silva v Queensland Police Service - Weapons Licensing Unit  QCATA 65
Nissanka Senarath De Silva
Queensland Police Service - Weapons Licensing Unit
8 April 2015
Acting Senior Member Howard
15 May 2015
APPEAL – ADMINISTRATIVE REVIEW – where application for additional conditions on weapons licences - where licences revoked under the Weapons Act – where interstate intervention order made against the applicant – whether there is a current protection/domestic violence order made
Weapons Act 1990 (Qld), s 10B, s 28A, Schedule 2
Family Violence Protection Act 2008 (Vic), s 74, s 11
Domestic Violence Protection Act 2012 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 147
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Mr Nissanka Senarath De Silva represented himself
Ms J Rosengren of Counsel, instructed by the Public Sector Business Agency represented the Queensland Police Service - Weapons Licensing Unit
REASONS FOR DECISION
- Mr De Silva held both a concealable firearms licence and a firearms licence under the Weapons Act 1990 (Qld) (Weapons Act). On 31 July 2013, he applied for changes of conditions on those licences. As a result of the searches undertaken in considering the application, the decision-maker became aware of an intervention order issued out of the Magistrates Court in Victoria on 3 July 2013. The applications for the change of conditions were refused and Mr De Silva was advised that the licences had been revoked by the making of the intervention order. Mr De Silva reviewed the decisions in the Tribunal.
- Mr De Silva’s main argument on the review in the Tribunal was that the original intervention order in Case No J01583759 was made on 18 July 1996. He argued the order made in 2013 (made on the same file and with the same case number) was simply a variation of the original order and should be disregarded. Further, he submitted that because the original order was made more than five years before his application for a variation of the conditions, it was outside of the relevant five year period referred to in s 10B of the Weapons Act and should be disregarded.
- The learned Senior Member considered that the primary issue was whether the intervention order made in July 2013 was a current final intervention order falling within the relevant period under s 10B of the Weapons Act 1990. If it was, the Tribunal considered that by operation of s 10B(2) of the Weapons Act, Mr De Silva was deemed not to be a fit and proper person to hold a weapons licence. The learned Senior Member found that the intervention order was a domestic violence order for the purposes of the Weapons Act and that a final order includes an order that is varied under the Victorian legislation. It was therefore made within the relevant (five year) period referred to in s 10B and Mr De Silva was deemed not to be a fit and proper person to hold a weapons licence. The Tribunal confirmed the original decisions.
- Mr De Silva has applied for leave to appeal or appeal. Leave to appeal is necessary for questions of mixed fact and law. The distinction between questions of law and fact is not always clear, and courts have not found it easy to formulate a satisfactory test of universal application.In this instance, we characterise Mr de Silva’s grounds of appeal as raising questions of mixed fact and law. Leave to appeal will ordinarily only be granted where there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief and when it is necessary to correct a substantial injustice caused by some error.
- We have concluded that leave to appeal should be refused for the reasons set out below.
The grounds of appeal
- At the hearing of the appeal, Mr De Silva relied on his written application for leave to appeal and appeal and his oral submissions. In summary, he argued that the learned Senior Member was in error for the following reasons:
- a)The 2013 intervention order was not a final order, it was merely a variation of the 1996 final order, and did not revoke the weapons licences;
- b)There is no specific condition that revoked his licences automatically because permits to acquire firearms issued to him after the alleged automatic revocation of the licences;
- c)There was no letter suspending or cancelling the licences given to Mr De Silva; and
- d)Mr De Silva was advised that a person against whom a revoked order had been made would be eligible to apply for a firearms licence.
- Each of the grounds of appeal is discussed in the following paragraphs.
Ground 1: The intervention order was not a final order and therefore the weapons licences were not revoked
- Mr De Silva’s primary ground of appeal is that the order of 3 July 2013 is not a final order made within the relevant period. He says essentially that it is the same order as had been in place since 1996, but with one extra clause added: he argues that it was just a ‘variation’ not a new order.
- The Magistrates Court in Victoria issued an intervention order dated 3 July 2013 expressed in different terms than the intervention order dated 3 May 2005, (which appears to be the order in operation immediately before the order of 3 July 2013). The 2013 order includes a prohibition in relation to electronic media. The order includes a notice which says it varies the order made on 3 May 2005. Further, it states that the current interim order remains in place until this final intervention order is served on the respondent.
- The respondent submits the Tribunal correctly held that the licences had been revoked by the operation of the Weapons Act following the decision of the Victorian Magistrates Court on 3 July 2013. It submits that accordingly the applications for variation of conditions on the weapons licences could not be granted because they related to revoked licences. Further, it says that the order of 3 July 2013 was a temporary order, which became a final order once it was served on the respondent on 6 July 2013. On 6 July 2013, it says the order became a domestic violence order within the meaning of s 10B(2)(b) of the Weapons Act. It submits it was also a protection order as referred to in s 28A of the Weapons Act. It further submits that this resulted in the immediate revocation of the licences by the operation of s 28A of the Weapons Act.
- The respondent provided the following submissions concerning relevant provisions. Section 11 of the Family Violence Protection Act 2008 (Vic) (FVP Act) provides that an intervention order includes a final order made under s 74 or s 76 as varied under s 100, s 119(2)(c) or s 173(2). It submits that in this case, it includes the 2013 order of the Victorian Magistrates Court. Section 28A of the Weapons Act specifically provides for automatic revocation of a weapons licence for a person named as respondent in a protection order, if the person was not present in court when the order was made, when the person is given the order. Protection order and domestic violence order are both defined to include an interstate domestic violence order corresponding to a protection order under the Domestic Violence Protection Act 2012 (Qld) (DVP Act). The DVP Act defines interstate order to include orders made by courts of other States prescribed by regulation. The Regulations to the DVP Act include the FVP Act as a prescribed law. Section 10B(2)(b) of the Weapons Act provides that in considering the issue, renewal, suspension or revocation, a person is not a fit and proper person to hold a weapons licence if a final domestic violence order has been made against the person, in the preceding five years.
- We accept the respondent’s submissions. We do not accept Mr De Silva’s submission that the order of 3 July 2013 was (merely a variation and) not a final order. Based on his analysis, the learned Senior Member reached the conclusion that the order was a final order which fell within the definition of a domestic violence order within the meaning of s 10B. However, we consider that s 10B did not come into play, because a decision to revoke Mr De Silva’s weapons licence was not being considered.
- The applications under consideration were applications for additional conditions. We consider that when those applications were decided, the weapons licences had been (automatically) revoked. By virtue of s 11 of the FPV Act, the Victorian order of 3 July 2013 met the definition of a final intervention order once served on Mr De Silva. It met the definition of an interstate domestic violence order and protection order under the Weapons Act. The revocation of the weapons licences occurred by operation of s 28A, because of the making of the protection order naming Mr De Silva as respondent, once it was served upon him. It follows that the weapons licences were revoked on 6 July 2013. Therefore, the decisions to refuse Mr De Silva’s applications for additional conditions on his licences were the correct and preferable decisions. No other decisions could be made: the additional conditions sought by Mr De Silva could not be granted on revoked licences.
- Therefore, we agree with the learned Senior Member’s orders confirming the decisions of the Queensland Police Service, although we consider he erred, in part, in reaching his conclusions. Accordingly, on this question of mixed fact and law, we would not grant leave to appeal because there is no reasonable prospect that Mr De Silva would be granted relief if leave was granted. Mr De Silva has not suffered an injustice. The decision would be unchanged on a rehearing of the application on appeal.
Ground 2: There was no condition revoking the licences automatically because permits to acquire firearms were issued to Mr De Silva after the alleged automatic revocation of the weapons licence
- Mr De Silva submitted that on 1 August 2013 and 23 August 2013, he was issued permits to acquire several weapons. The submission seems to be that therefore the licence had not been revoked automatically or those permits would not have issued.
- We note that the permits issued very shortly after the making of the 2013 order. However, the permits issued at a time when they should not have issued because the licences had been automatically revoked under the Weapons Act. The issue of these permits in error does not affect the automatic operation of s 28A in revoking the licences.
- We would not grant leave to appeal on this ground.
Ground 3: There was no notice of suspension or cancellation of the weapons licences
- Mr De Silva appears to say that the Senior Member did not read all of his material. If he had, he says, he would have realised that his weapons licence had not been suspended (or cancelled).
- Although it is not entirely clear, the argument seems to be that the revocation could not occur without an earlier notice of suspension. Having regard to our earlier analysis of the operation of s 28A, we do not accept this argument.
- Again, we would not grant leave to appeal on this ground.
Ground 4: Mr De Silva had been advised that a person against whom a revoked order had been made would be eligible to apply for a firearms licence
- Mr De Silva says that the learned Senior Member erred because a Senior Policy Officer had told him that a person against whom a revoked order had been made would be eligible to apply for a firearms licence. Mr De Silva had applied for revocation of the Victorian order at the time of the hearing before the learned Senior Member. He says that if he had a revocation, it would have to have been taken into account. The learned Senior Member does not refer to this argument in his reasons for decision, but Mr De Silva brought it to his attention and says that the Senior Member erred in failing to answer it.
- We would not accept that the learned Member erred in not addressing this argument. Under the Weapons Act, s 28A applies upon the making of the protection order if the person was in court when it was made, or if not, at the time of service of the order upon the person. In Mr De Silva’s case it was on service of the order on 6 July 2013. Section 28A operated on service of the order to revoke the weapons licences. The revocation of the weapons licences took effect because of the making of the protection order naming Mr De Silva as respondent, when it was served upon him. Any subsequent revocation of the intervention order cannot affect the operation of the section. Therefore, whether or not the intervention order was later revoked is irrelevant.
- Accordingly, this ground of appeal has no merit and we would not give leave to appeal in respect of it.
- We dismiss the application for leave to appeal the decision.
- Although not one of the grounds of appeal set out in his application, Mr De Silva complains more broadly that the learned Senior Member erred because he did not respond to all of the issues raised by Mr De Silva.
- The Senior Member acknowledged that other issues were raised. We make the observation that parties regularly raise issues which are not relevant. The Senior Member explained why Mr De Silva could not succeed on the review application. He was not obliged to consider all of the other peripheral issues if they were irrelevant or could not affect the outcome.
- Even if this had been a stated ground of appeal, leave would not have been granted in respect of it.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 142.
 See Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394.
 Weapons Act s 28A(1) and s 28A(3)(b).
 Weapons Act Schedule 2.
 Weapons Act s 10B(5).
 When leave is granted on a question of mixed fact and law, the Appeals Tribunal must conduct a rehearing pursuant to s 147 of the QCAT Act.
- Published Case Name:
Nissanka Senarath De Silva v Queensland Police Service - Weapons Licensing Unit
- Shortened Case Name:
De Silva v Queensland Police Service - Weapons Licensing Unit
 QCATA 65
A/Senior Member Howard
15 May 2015