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Queensland Police Service – Weapons Licensing v Fowkes QCATA 37
Queensland Police Service – Weapons Licensing v Fowkes  QCATA 37
Queensland Police Service – Weapons Licensing
Paul David Fowkes
On the papers
Senior Member Stilgoe OAM
6 April 2017
APPEAL – LEAVE TO APPEAL – FIRE, EXPLOSIVES AND FIRE ARMS – LICENCES AND RELATED MATTERS – LICENCES – ISSUE OF AND GENERALLY – where Queensland Police Service made decision exempting person from operation of specified provisions of Weapons Act 1990 (Qld) subject to conditions – where exemption related to ANZAC Day 2016 – where application for review lodged after ANZAC Day – where application to strike out application for review – where application to strike out dismissed – whether error by tribunal
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32, 47, 60, 146
Weapons Act 1990 (Qld)
Attorney General v Kehoe  2 Qd. R 350
Bob Borg Partners Pty Limited t/as United Realty Liverpool v Department of Fair Trading 7 anor  NSWSC 504
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
Emmetlow Pty Ltd (trading as Colonial Village) v Pomroy & ors  QCATA 186
Ericson v Queensland v Building and Construction Commission  QCA 140
Fowkes v Queensland Police Service - Weapons Licensing  QCAT 336
Harm v Queensland Police Service  QCAT 518
Lyons v Dreamstarter  QCATA 071
Penna v The Liquor Administration Board & anor  NSWSC 681
Marshall-Holst v Office of the Information Commissioner and Queensland Health (Metro North Hospital and Health Service)  QCATA 028
WAS v Department of Communities, Child Safety and Disability Services  QCAT 374
Webber v Moreton Bay Regional Council (No.2)  QCAT 475
Yew Bon Tew v Kenderaan Bas Mara  1 AC 553
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- Paul Fowkes describes himself as a keen collector of firearms, both historical and contemporary. 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 at Theodore.
- After the ANZAC Day display, 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 on 18 April 2016, which left him little time to prepare. He was aggrieved that the exemption was limited to ten weapons, 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 to a table as impractical and less secure than the method he proposed.
- Queensland Police Service – Weapons Licensing (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. In a decision dated 20 September 2016, the tribunal dismissed QPS’ application, finding that the exemption was a reviewable decision. The tribunal further stated that it was not prepared to dismiss the application, ‘given that a decision on the merits may help to clarify the imposing of conditions for Mr Fowkes’.
- QPS wants to appeal that decision. It says the tribunal failed to have regard to the futility of the application or the likely orders of the tribunal. It says that the tribunal failed to provide adequate reasons for its decision. It says the tribunal’s approach is inconsistent with previous approaches of the tribunal when dismissing an application under s 47. It submits that the tribunal’s decision could be seen to be placing pressure on it to deal with hypothetical future applications in a particular way. It questions whether the tribunal’s declaratory power exists without an application for substantive relief. It says the Weapons Act does not empower the tribunal to make declarations in the absence of substantive relief.
- Mr Fowkes says that there is still a dispute to be determined by the tribunal. He wants the tribunal to determine whether he was given natural justice in the process by which the exemption was granted. Because he disagrees with the conditions of the exemption, Mr Fowkes says his application for an exemption was refused. He disagrees with the QPS’s submission that the tribunal does not hear and determine matters to which there is no utility. He submits there is utility in this proceeding because the tribunal could retrospectively change the conditions. He challenges QPS’s reasoning (such as it is) for the imposition of conditions.
The declaration power
- QPS referred the appeal tribunal to a number of tribunal decisions. In Webber v Moreton Bay Regional Council (No.2). The case involved an application for review of a decision to declare a dog dangerous. The parties had earlier reached agreement and, as a result, the Council withdrew the decision the subject of the application. The tribunal called for submissions as to whether the proceeding should continue.
- The tribunal found that there was no longer a decision that could be the subject of an application for review. In coming to that decision, the tribunal stated:
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 chances 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.
- The principle is valid and has application in Mr Fowkes’ case. The tribunal has an obligation to consider objectively whether an application is lacking substance and whether a respondent should be put to time and expense in responding to a claim that has little, or no, chance of success. As the tribunal noted in Webber, it cannot be fair to require a respondent to continue in a proceeding where the outcome is futile.
- QPS referred the tribunal to WAS v Department of Communities, Child Safety and Disability Services. In that case, the tribunal dismissed a proceeding because the application no longer had any substance. Mr Fowkes submits that WAS is not relevant because, in that case, there was already an order and the applicant wanted to put conditions on an agreement to gain advantage.
- The decision that WAS wanted to challenge had been withdrawn and replaced. When asked if she wanted to withdraw her proceeding, WAS attempted to place conditions on her withdrawal. The tribunal observed, rightly in my view, that it would be impractical to continue with a review of decisions that are no longer in effect. The tribunal observed that it would be an abuse of process for WAS to continue with her application.
- QPS referred the appeal tribunal to Emmetlow Pty Ltd (trading as Colonial Village) v Pomroy & ors as authority for the principle that the tribunal’s declaratory power cannot be exercised for purely hypothetical questions.
- Mr Fowkes contends that Emmetlow is not relevant because it related to an uncertain dispute, whereas his decision is certain, and it not was connected to a decision under the Weapons Act.
- I agree with Mr Fowkes that his application is not theoretical in the sense considered in Emmetlow: he has a decision based on a concrete and established situation. However, the application is theoretical in the sense that the event to which the exemption applied had passed and the decision did not relate to, affect or fetter Mr Fowkes’ past 25 April 2016.
- The tribunal is created by legislation and it only has the powers given to it by legislation. The declaration power is to make a declaration instead of making an order or in addition to making an order. If the tribunal has no power to make an order in the substantive proceeding, then it has no power to make a declaration.
- The tribunal’s power to make a declaration may be extended by an enabling Act. The relevant Act in this case is the Weapons Act. That Act does not give the tribunal any additional power.
- The tribunal failed to have regard to any of these principles. It was in error. Leave to appeal should be granted.
Were the tribunal’s reasons sufficient?
- A failure to give reasons does not automatically amount to an error by the tribunal. The Court of Appeal has stated:
Generally speaking, an error of law is discerned when the Court draws the inference that the relevant tribunal has failed in some respect to exercise its powers according to law. A lack of transparency, or obfuscation of the true basis of a decision may make it easier for a court to identify such an error.
- The tribunal’s reasons for decision must contain three essential elements: appropriate and sufficient reference to the relevant evidence; material findings of fact; and the applicable law and the reasons for applying that law to reach a decision. The tribunal’s decision in this case does make sufficient reference to the evidence. To the extent that it was deciding whether to strike out Mr Fowkes’ application for review, it was not required to make findings of fact. But the tribunal was required to apply the law and explain why it came to its decision.
- QPS specifically referred the tribunal to the issue of the utility of Mr Fowkes’ application. The tribunal did not address that submission. QPS specifically referred the tribunal to s 47 of the QCAT Act. The tribunal did not address that submission. QPS did not ask the tribunal to determine whether the exemption was a ‘reviewable decision’ under the Weapons Act. The tribunal did address that issue.
- In all the circumstances, the tribunal’s reasons for decision were deficient. The tribunal erred at law and leave to appeal should be granted.
What should happen to Mr Fowkes application?
- Because this appeal is a question of law only, my powers to deal with the proceeding are proscribed by s 146 of the QCAT Act. However, I cannot exercise those powers if the determination of the question of law is capable of resolving the matter as a whole. Section 146 does not entail re-hearing the matter, whether on the evidence below or on fresh evidence.
- Here, despite Mr Fowkes’ submissions about his dealings with the QPS prior to the exemption, and despite his submissions about the practicality of the exemption conditions, the question before me is one of law which is capable of resolving the proceeding as a whole.
- The subject matter of the exemption – a display on 25 April 2016 – has occurred. There is no utility in Mr Fowkes proceeding with his application.
- Mr Fowkes referred the appeal tribunal to Lyons v Dreamstarter in support of a submission that the tribunal had the power to retrospectively change the exemption. The appeal tribunal in Lyons did make a different order from the original tribunal but there was utility in it doing so: the proceeding was an ongoing dispute and the amended order affected the way in which the dispute would be heard. The problem for Mr Fowkes is still that a retrospective order has no utility because the event has occurred.
- Mr Fowkes says that the submission that the tribunal failed to give adequate reasons could equally apply to the QPS. That is true, but the submission does not overcome the difficulty that there is no utility to the proceeding.
- Mr Fowkes says the QPS has a policy to issue exemptions ‘as they come due’ and that this results in a lack of natural justice. He says that an exemption issued a week or two before an event cannot effectively be appealed. He might be correct in that submission, but the tribunal’s role is to make the correct and preferable decision about the exemption conditions. While a tribunal decision may comment on the efficacy of the process that resulted in that decision, the process is not the focus of the tribunal’s attention.
- Mr Fowkes referred the appeal tribunal to Yew Bon Tew v Kenderaan Bas Mara as authority for the proposition that, where a case is time barred, it can be decided in retrospect. The Privy Council was asked whether a case that was time barred under legislation could be ‘revived’ because of a change to the law that extended the time limit. The Privy Council held that the right to argue that a claim was time barred was an accrued right; that was the right, if any, that was retrospective. The claim was still time barred. The case does not assist Mr Fowkes.
- Mr Fowkes also referred the appeal tribunal to Bob Borg Partners Pty Limited t/as United Realty Liverpool v Department of Fair Trading 7 anor in support of a submission that he was entitled to, and did not receive, procedural fairness from QPS.
- Bob Borg Partners relates to a tribunal hearing in which, as the Court found, the tribunal failed to give Bob Borg Partners procedural fairness. The tribunal is required to ensure procedural fairness in its procedures. That proposition, which is the only proposition in the case, is unexceptional. For the same reason, Mr Fowkes’ reference to Penna v The Liquor Administration Board & anor, another decision about the obligation to provide natural justice, is of no assistance.
- Whether a person was given procedural fairness by the decision maker may be a factor in deciding whether the decision was the correct and preferable decision when procedural fairness and transparency are stated objectives of the enabling legislation. In this case, however, the question for the tribunal was whether the exemption conditions were reasonable. The process by which the conditions were formulated was not relevant to that consideration.
- Mr Fowkes referred the appeal tribunal to Harm v Queensland Police Service, stating his understanding that Mr Harm had to re-challenge QPS over conditions on his licence. There is no analogy to Mr Fowkes’ position. A general dissatisfaction with the weapons licensing regime is not a ground for appeal or consideration by the tribunal.
- Mr Fowkes wants the tribunal to make a declaratory order because, in his view, QPS has displayed poor communication skills and he considers that the tribunal order may be appropriate to guide the methodology of the QPS. He says the question is not hypothetical because QPS had already issued a general exemption for historical demonstrations.
- Rather than prove the need for a decision by the tribunal, the fact that there is a general exemption that allows Mr Fowkes to display his collection as he intended confirms that there is no utility in his application or review.
- Leave to appeal should be granted. The appeal is allowed. The decision of 20 September 2016 is set aside. The proceeding is dismissed.
 Fowkes v Queensland Police Service - Weapons Licensing  QCAT 336.
 Ibid at .
 QCAT Act s 60.
  QCAT 475.
 Ibid at .
 Ibid at .
 Ibid at .
  QCAT 374.
 Ibid at .
 Ibid at .
  QCATA 186.
 Ibid at .
 Ibid at .
 QCAT Act s 60.
 Attorney General v Kehoe  2 Qd R 350.
 Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291 at .
Ericson v Queensland v Building and Construction Commission  QCA 140.
  QCATA 071.
  1 AC 553.
  NSWSC 504.
  NSWSC 681.
 See, for example Marshall-Holst v Office of the Information Commissioner and Queensland Health (Metro North Hospital and Health Service)  QCATA 028.
  QCAT 518.
- Published Case Name:
Queensland Police Service – Weapons Licensing v Paul David Fowkes
- Shortened Case Name:
Queensland Police Service – Weapons Licensing v Fowkes
 QCATA 37
Senior Member Stilgoe
06 Apr 2017