Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Stanway v Queensland Police Service - Weapons Licensing[2019] QCATA 108

Stanway v Queensland Police Service - Weapons Licensing[2019] QCATA 108

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Stanway v Queensland Police Service - Weapons Licensing [2019] QCATA 108

PARTIES:

ADAM STANWAY

(appellant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

APL171-18

ORIGINATING APPLICATION NO:

GAR022-18

MATTER TYPE:

Appeals

DELIVERED ON:

15 July 2019

HEARING DATE:

15 March 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding

Member Browne

ORDERS:

  1. The application for leave to rely upon fresh or new evidence is refused.
  2. The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS –  where applicant argues that Tribunal misconstrued r 146 of the Weapons Regulation 2016 (Qld) – where applicant argues that Tribunal erred in relation to his standing to apply for review – where applicant argues there has been a denial of procedural fairness –whether reviewable decision exists—

whether the applicant is an ‘aggrieved person’ for the purposes of the Weapons Act 1990 (Qld) – whether leave to adduce fresh evidence should be granted

Acts Interpretation Act 1954 (Qld), s 38

Queensland Civil and Administration Act 2009 (Qld), s 17, s 17(1), s 21, s 47, 142(3)

Weapons Act 1990 (Qld), s 2, s 2(1)(m), s 142, s 142(1), s 142(2)

Weapons Regulation 2016 (Qld), r 144, r 146, s 146(2)(b), s 146(4), r 169

Albrecht v Commonwealth Bank of Australia [2015] WASC 167

Allan v Transurban City Link Limited (2001) 208 CLR 167

Brisbane City Council v Amos [2016] QSC 131

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

Day v Hunter [1964] VR 845

Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93

Harrison v Meehan [2017] QCA 315

Pickering v McArthur [2005] QCA 294

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Stanway v Queensland Police Service – Weapons Licensing [2018] QCAT 219

Queensland Building and Construction Commission v Ian James Ericson trading as Flea’s Concreting [2014] QCATA 66

Yatras & Anor v Queensland Police Service – Weapons Licensing [2019] QCAT 6

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

ES Kennedy, Acting Senior Legal Officer of the Queensland Police Service Legal Unit, Legal Services Division Queensland Police Service

REASONS FOR DECISION

  1. [1]
    Adam Stanway applied to the Queensland Police Service (‘QPS’) for an exemption pursuant to s 2(1)(m) of the Weapons Act 1990 (Qld) (‘the Weapons Act’) for the possession and use of a suppressor/silencer to be issued to the Brisbane City Council (‘BCC’) and its servants and agents. Mr Stanway did not have authority to make the application on behalf of the BCC.
  2. [2]
    The QPS responded to Mr Stanway’s application by requesting that he provide additional information under r 146 of Weapons Regulation 2016 (Qld) (‘the Weapons Regulation’). After Mr Stanway responded to the request, the QPS advised Mr Stanway in writing that his application was taken to be withdrawn.
  3. [3]
    Proceedings followed in the Tribunal’s review jurisdiction. Mr Stanway applied for review. The QPS then applied for orders dismissing Mr Stanway’s application on the basis that there is no reviewable decision.[1]
  4. [4]
    On 5 July 2018, the Tribunal heard and determined the matter on the papers. It made orders dismissing Mr Stanway’s application for review.[2] Mr Stanway seeks to appeal the Tribunal’s decision.[3] He also seeks leave to rely on fresh or new evidence in the appeal proceedings.[4]

The grounds of appeal

  1. [5]
    Although there are 3 grounds of appeal with many sub-grounds, Mr Stanway’s grounds of appeal can be summarised as follows:
    1. (a)
      Ground One: Mr Stanway contends that the Tribunal mistakenly denied its jurisdiction by misconstruing r 146 of the Weapons Regulation. In particular, Mr Stanway says the Tribunal erred in its findings about the minimum statutory period for a response under r 146 of the Weapons Regulation;
    2. (b)
      Ground Two: Mr Stanway contends that the Tribunal erred in finding that he did not have standing to make the application for review; and
    3. (c)
      Ground Three: The Tribunal’s erred in failing to observe procedural fairness in finding that Mr Stanway’s application lacked substance in that he was not given an opportunity to provide submissions about whether his application was ‘lacking in substance’.[5]
  2. [6]
    Each of these grounds raises an alleged error of law. Because errors of law are alleged and because the decision was a final decision in that it disposed of the review proceeding, leave to appeal is not required for Mr Stanway to appeal.[6]

Ground One – Construction of r 146 of the Weapons Regulation

  1. [7]
    The Tribunal’s reasons for decision identify the nature of Mr Stanway’s application made at first instance to the QPS. Further, the reasons identify that the QPS’ response to Mr Stanway’s application is a request for information made under r 146 of the Weapons Regulation. Importantly, after receiving Mr Stanway’s application for an exemption, the authorised officer wrote to Mr Stanway by letter dated 26 September 2017 requesting that he provide a signature on the original application/document; 100 points of identification for this application as required; and supporting evidence that he has authority to act on behalf of the BCC in relation to the application.[7] Mr Stanway was required to provide a response by 24 October 2017.
  2. [8]
    The Tribunal’s reasons identify r 146 of the Weapons Regulation as the section that gives the Commissioner the power to request additional information about an application for a Commissioner’s exemption under division 2 of the Act.[8] Relevantly, r 146 of the Weapons Regulation provides as follows:

Commissioner may request additional information about application for commissioner’s exemption under div 2

(1) The commissioner may ask the applicant for a commissioner’s exemption under division 2 to give the commissioner additional information about the application.

(2) The request must—

  1. (a)
    be in writing; and
  1. (b)
    state the date (not less than 28 days after the request) by which the additional information is to be given.

(3) Subsection (4) applies if—

  1. (a)
    the commissioner makes a request of the applicant under subsection (2); and
  1. (b)
    the applicant does not give the commissioner the additional information by the date stated in the request.

(4) The commissioner may give the applicant written notice that the application is taken to have been withdrawn because the applicant did not give the commissioner the additional information by the stated date.

……….

  1. [9]
    In the appeal, Mr Stanway says that the calculation of 28 days as provided under r 146 of the Weapons Regulation should be construed to mean that 28 days must pass between (and not inclusive of either) the day initiating the period and the day concluding the period.[9] Mr Stanway says that the learned Member has misconceived the period required by r 146 of the Weapons Regulation and says there were 27 days (and not 28 days) between the period from 26 September 2017 and 24 October 2017.[10] Mr Stanway says that the date for response as specified in the notice requiring further information that had to be no earlier than Wednesday, 25 October 2017.[11] Further, Mr Stanway says that the period of ‘not less than 28 days’ in r 146 of the Weapons Regulation runs from the day following his receipt of the authorised officer’s letter on 29 September 2017.[12]
  2. [10]
    Mr Stanway does not take issue with the date of request (i.e. 26 September 2017). He submits only that the letter should have been sent by email and that he should have been given more time to respond. Mr Stanway says that sending emails was the practice when corresponding with him (by the QPS) except for the notice. Mr Stanway submits that had the notice been emailed to him the period would have run from the day the authorised officer sent the notice.[13]
  3. [11]
    The QPS submits that r 146 is concerned with/provides for the setting of a date in the notice requesting additional information, rather than for the giving of a particular number of days. That is, the additional information must be given by the stated date which is to be specified as not less than 28 days after the request.
  4. [12]
    The issues raised on appeal involve a question of statutory construction of r 146 of the Weapons Regulation and in particular, when a request is made for additional information under r 146 of the Weapons Regulation.
  5. [13]
    We must consider whether the Tribunal misconstrued r 146 of the Weapons Regulation in finding, in effect, on a fair reading of the reasons for decision, that the legislation required that the notice specify a date by which the additional information must be given, shall be (at least) 28 days after the date of the request. This interpretation led the learned Member to conclude that the request made for additional information complied with the legislation. Here, the learned Member was satisfied that the authorised officer’s letter dated 26 September 2017 did comply with r 146(2) of the Weapons Regulation and that the additional information requested was reasonable for the QPS to seek in relation to an exemption application.[14] The learned Member found as follows:[15]

I am satisfied that the letter dated 26 September 2017 complies with the requirements of r 146(2) of the Weapons Regulation. The additional information requested was reasonable for the Queensland Police Service to seek in relation to an exemption application. The authorised officer stated 24 October 2017 as the date by which the additional information was to be given, which was 28 days after the request was made.

  1. [14]
    The common law requires that a statutory provision is to be interpreted in a way that is consistent with the language and purpose of the provisions of the Act.[16] Further, if a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and if the period is expressed to be a specified number of clear days or at least a specified number of days, by excluding the day on which the purpose is to be fulfilled; and in any other case, by including the day on which the purpose is to be fulfilled.[17]
  2. [15]
    On a plain reading of r 146 of the Weapons Regulation, the ‘request’ must be in writing and ‘state the date (not less than 28 days after the request) by which the additional information is to be given’.[18] We do not accept Mr Stanway’s submission to the effect that ss 39 and 39A of the Acts Interpretation Act 1954 (Qld) apply to indicate that r 146 should be interpreted to require a minimum of 28 days from the date he received the request. Those provisions concern service of documents, including by post. The issue here concerns the time frame prescribed by r 146 for a request for further information.
  3. [16]
    We accept the submissions of the QPS to the effect that s 38 of the Acts Interpretation Act 1954 (Qld) as to the calculation of the number of days by which the additional information is required does not apply here. This is because r 146 of the Weapons Regulation does not concern an ‘act or event’ for a purpose by an Act but rather concerns the ‘stated date’ as determined by the authorised officer for the additional information to be provided by an applicant.[19]
  4. [17]
    We conclude that the ‘stated date’ by which the additional information is to be given, commences on the date of the request (i.e. 26 September 2017). Here, the authorised officer’s notice to Mr Stanway required that the additional information was to be given by 24 October 2017. That is a date not less than 28 days from the date of the request, that is, 26 September 2017 excluding the day the request was made on 26 September 2017.[20] For completeness we observe that if we were wrong, and if s 38 of the Acts Interpretation Act 1954 (Qld) were to apply, we would conclude that s 38(1)(b) would apply because r 146(b) of the Weapons Regulation requires that the ‘stated date’ be not less than 28 days after the request. The relevant date by which the additional information is required would still be 24 October 2017, including the day on which the ‘purpose is to be fulfilled’ (i.e. 24 October 2017).
  5. [18]
    Here, the authorised officer’s request to Mr Stanway was in writing and provided that the additional information was required by the ‘stated date’ of 24 October 2017. The reasons for decision show that the learned Member considered the issue raised by Mr Stanway in the review proceeding about the specified date of 24 October 2017 in which to provide the information and whether the date (of 24 October 2017) was a time period as required under r 146(2)(b). The learned Member correctly found that r 146(2)(b) of the Weapons Regulation requires only that the request state a date ‘not less than 28 days after the request’, not that the 28 day period commences on the day when the request is received. The learned Member found as follows:[21]

Mr Stanway has raised the issue that he received the letter on 29 September 2017, and that the specified date of 24 October 2017 was less than 28 days after he received [the] letter. However, r 146(2)(b) requires only that the request state a date ‘not less than 28 days after the request’. There is no requirement that the 28 day period be from when the request was received.

  1. [19]
    Relevantly, r 146 only requires that the request be in writing. Here, the authorised officer’s request was in writing and identified the additional information required in relation to the application for an exemption. The authorised officer’s request under r 146 of the Weapons Regulation was a proper use of the powers under Part 26 of Division 1 when an exemption under Division 2 was received. Division 1 of the Weapons Regulation was relevant in this matter because Mr Stanway applied for an exemption under s 2(1)(m) of the Weapons Act. As provided in r 144 of the Weapons Regulation, ‘this part’ (i.e. Part 26) prescribes the way for the Commissioner to grant an exemption under s 2(1)(m) of the Act. Mr Stanway does not dispute that his application was made to the QPS for an exemption under s 2(1)(m) of the Weapons Act.
  2. [20]
    We find no error in the learned Member’s interpretation of r 146. It was therefore open to the learned Member to find in this matter that the request issued by the authorised officer to Mr Stanway complied with r 146 of the Weapons Regulation because the request was in writing and did state the date by which the additional information is to be given. Further, it was open for the learned Member to find that 24 October 2017 being the date the authorised officer stated the additional information was to be given, was 28 days after the request was made.
  3. [21]
    Mr Stanway has failed to establish any error in the learned Member’s finding about the validity of the request made under r 146 of the Weapons Regulation.
  4. [22]
    It does not appear that Mr Stanway challenges the Tribunal’s interpretation of r 146 as far as the withdrawal of the application is concerned. That is, he appears to accept that, if the request was complaint with r 146, the notice that his application was taken to be withdrawn was regularly given in compliance with the regulation. However, for completeness, we observe as follows. The Tribunal’s reasons correctly identify Mr Stanway’s response to the authorised officer’s request dated 30 September 2017 now set out as follows:

Mr Stanway responded to the requestion 30 September 2017 as follows:

Signature

  1. I contend the document I submitted was already signed by me, because my name was typewritten on every page. However, I gather you are seeking a handwritten signature (although your notice requiring additional information does not state this directly). Please find an image attached of the first page hand signed by me.

Identification

  1. I’ve already sent you a certified copy of my driver licence by email on 26 September 2017. The image attached also includes a credit card. Does this fulfil your 100 points expectation?

Authority to act

  1. As I’ve previously indicated, I have no authority to act on behalf of the BCC. I am not purporting to act on their behalf. I have given you all the information I can give you in relation to my (lack of) ‘authority to act on behalf of the Brisbane City Council’. S 146 of the Weapons Regulation allows you to seek additional information about the application. S 146 affords you no power to require a third party, in this case Brisbane City Council, to generate some new document. I cannot give you a document that doesn’t exist. You may as well ask for a copy of yesterday’s Hansard of the proceedings of the Parliament of the Moon.
  1. [23]
    The Tribunal’s reasons for decision set out the QPS’ response to the information provided by Mr Stanway. The QPS wrote to Mr Stanway on 4 January 2018 in the following terms:

I acknowledge your email dated 30 September 2017. I have considered your responses and have made the following determination –

  • That you are not an employee of or are a recognised authority acting for the Brisbane City Council.
  • You have not provided 100 points of Identity in the prescribed manner (100 points of proof of identification must be produced in person at a Police Station as required by an Authorised Officer).
  • Application (original) for Exemption submitted to Weapons Licencing has not been signed as required by the Authorised Officer.

As the Authorised Officer I advise you that this application is taken as to be withdrawn as per the provisions of the Weapons Regulation 2016 (Qld) s.146(4).

Any refund due to you will be forwarded in due course less a $20.00 administrative fee as provided by the Weapons Act 1990. However, the Authorised Officer at Weapons Licensing will require you to provide proof of payment prior to any refund being made available to you.[22]

  1. [24]
    The learned Member was satisfied that the letter dated 4 January 2018 complied with the requirements of r 146(4) of the Weapons Regulation and that Mr Stanway’s application is taken to be withdrawn. The learned Member found:

I am satisfied that the letter dated 4 January 2018 complies with the requirements of r 146(4) of the Weapons Regulation, and that Mr Stanway’s application is taken to have been withdrawn. For the purposes of r 146(3)(b), Mr Stanway did not provide the authorised officer with the additional information sought. It is trite to observe that difference between Mr Stanway’s inability to provide evidence of his authority to act on behalf of the Brisbane City Council and ‘a copy of yesterday’s Hansard of the proceedings of the Parliament of the Moon’ is that the former is relevant to an exemption application made on behalf of the Council whereas the latter is not.[23]

  1. [25]
    It was open for the learned Member to find that the authorised officer’s letter dated 4 January 2018 complied with r 146(4) of the Weapons Regulation. Mr Stanway’s response was provided outside the ‘28 days’ being a date after 24 September 2017. The authorised officer’s notice dated 4 January 2017 was in writing and notified Mr Stanway that his application is taken to be withdrawn.
  2. [26]
    Ground one is without merit.

Ground Two – Is Mr Stanway a ‘person aggrieved’ for the purposes of s 142 of the Weapons Act?

  1. [27]
    In the oral hearing before us, Mr Stanway submitted that if you are a party to the matter below you inherently have standing. Further, in responding to the QPS’ submissions that Mr Stanway is not an authorised person to act for the BCC in legal proceedings and is, therefore, not a proper person to make an application for an exemption on the BCC’s behalf, Mr Stanway submitted that the Commissioner could ask any entity what their views were and then decide the exemption application.[24] Mr Stanway said that the Commissioner has an unconfined discretion under the legislation and there is nothing to restrict what the Commissioner can take into account.  Mr Stanway relied on Yatras & Anor v Queensland Police Service – Weapons Licensing,[25] and said that the Weapons Act ‘casts a wide net’.
  2. [28]
    Here, the learned Member considered the Tribunal’s power to review a decision under s 17(1) of the QCAT Act and s 142 of the Weapons Act. The learned Member found that s 142(1) of the Weapons Act does not confer jurisdiction on the Tribunal to review a decision that an application is taken to have been withdrawn under r 146(4) of the Weapons Regulation.[26] The learned Member considered Day v Hunter,[27] as being instructive in his finding that Mr Stanway is not a ‘person aggrieved’ for the purposes of s 142(2) of the Weapons Act. The learned Member found:[28]

In any event, I am not satisfied that Mr Stanway is a ‘person aggrieved’ for the purposes of s 142(2) of the Weapons Act. Many cases have been decided about who is a person aggrieved for the purposes of various forms of statutory review provisions. The following comments by the Full Court of the Victorian Supreme Court in Day v Hunter are instructive:

[I]t will not be established merely by the applicant swearing that he ‘feels aggrieved’, for if that were the case a stranger to the proceedings, with no real or direct interest therein, could bring himself within the words by so swearing. These words were clearly intended to exclude from the operation of the section the common informer and other busybodies, who have no real or direct interest in the proceedings in which the decision sought to be reviewed was given, and to prevent them from intermeddling officiously therein.

  1. [29]
    In finding that Mr Stanway has no authority to act on behalf of the BCC, the learned Member considered that Mr Stanway did not have any real or direct interest as to whether the BCC is able to possess and use a suppressor/silencer.
  2. [30]
    However, the learned Member had also earlier said:[29]

The relevant enabling Act in the present case is the Weapons Act. Section 142 of that Act confers jurisdiction on the Tribunal to review the following decisions:

Right to apply for review of decisions

(1) This sections applies to the following decision —

  1. (a)
    a decision refusing an application for a licence, permit, approval or other authority under this Act;

 (aa) a decision refusing to renew a licence under this Act;

  1. (b)
    a decision refusing to accept the nomination of a person by an applicant for a shooting club permit;
  1. (c)
    a decision refusing to accept a representative notice under section 92;
  1. (d)
    a decision imposing or amending a condition applying to a licence, permit, approval or other authority under this Act;
  1. (e)
    a decision revoking or suspending a licence, permit, approval or other authority under this Act;
  1. (f)
    a decision, under section 18D(2), revoking a delegation.

(2)  A person aggrieved by the decision may apply, as provided under the QCAT Act to QCAT for a review of the decision.

Section 142(1) does not confer jurisdiction on the Tribunal to review a decision that an application is taken to have been withdrawn under r 146(4) of the Weapons Regulation.

  1. [31]
    The learned Member  correctly identified that s 142(1) of the Weapons Act sets out the decisions that QCAT has jurisdiction to review. As set out above, s 142(1) provides for the particular decisions to which the section applies. In particular, pursuant to s 142(1)(a), a decision refusing a (specified) application, may be reviewed by an ‘aggrieved person’ as provided for in s 142(2). In s 142(2), properly interpreted, ‘the decision’ is a decision to which the section applies. Mr Stanway’s application for an exemption was not refused: it was taken to have been withdrawn. Section 142 does not provide for review in circumstances when an application is taken to have been withdrawn under r 146, even assuming that an application for an exemption falls within the class of matters provided for in s 142(1)(a). The review rights provided for in the section did not apply. It is sufficiently clear, if not as plainly expressed as it might be in the Tribunal’s reasons in paragraph [14], that this was the conclusion of the learned Member. 
  2. [32]
    Accordingly, it was unnecessary for the learned Member to consider whether Mr Stanway was a ‘person aggrieved’ for the purposes of s 142. Although he went on to do so in paragraphs [15]–[16],[30] expressed as they are, his comments in those paragraphs are in effect in the nature of observations. He says in effect that even if the decision was reviewable, he considered Mr Stanway would not have the requisite interest in the proceeding to apply for review because he was not a person aggrieved.
  3. [33]
    For these reasons, whether or not the learned Member correctly applied Day v Hunter,[31] is irrelevant to the outcome.  The learned Member had correctly found that s 142 did not apply. That being so, we do not need to determine whether Day v Hunter,[32] was properly applied as it cannot affect the outcome of the appeal proceeding. If it was incorrectly applied, the error did not materially affect the Tribunal’s decision.
  4. [34]
    That said, again for the sake of completeness, if we were wrong in finding that s 142(1) did not provide for review in the circumstances, we observe that we would agree with the learned Member that Mr Stanway has not established that he has a real or direct interest such that he would be an aggrieved person for the purposes of s 142(2). He does not have the authority of the Brisbane City Council to make the exemption application. Although the Act does not appear to preclude him from applying for an exemption on behalf of another person, that is insufficient to render him an aggrieved person even in the event, which is not the case here, that his application had been  refused. The fact that Mr Stanway applied for an exemption that was later taken to be an application that was withdrawn, does not support Mr Stanway’s submission that he was a party in the proceeding below and is therefore a person who has standing or a right of review. As we have observed above, Mr Stanway does not have authority to apply for an exemption on behalf of the BCC.
  5. [35]
    Further, again for completeness we observe that although the Commissioner has what may be described as a broad discretionary power when making decisions about matters such as an application for an exemption under the Weapons Act, contrary to Mr Stanway’s contentions, that there is no specific requirement under the legislation for the Commissioner to seek the views of the entity or person for whom the exemption would apply.
  6. [36]
    Further, we observe that as held by the High Court in Allan v Transurban City Link Limited,[33] it is necessary to have regard to the subject, scope and purpose of the Weapons Act, rather than ‘by the application of concepts derived from decisions under the general law respecting what has come to be known as ‘standing’’.
  7. [37]
    Ground two is without merit.

Ground Three Did the Tribunal deny procedural fairness to Mr Stanway in finding that the review application lacked substance?

  1. [38]
    Having made this findings the learned Member, as discussed above, considered whether Mr Stanway’s review application should be dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). In doing so, the learned Member, although without expressly saying so, considered the application for miscellaneous matters filed by the QPS on 2 February 2018 seeking the dismissal of Mr Stanway’s application to review.
  2. [39]
    The learned Member, having regard to his finding that the Tribunal did not have jurisdiction for the review, determined that it was appropriate to dismiss the application under s 47 of the QCAT on the basis that it was misconceived. The learned Member found:[34]

As the Tribunal does not have jurisdiction to hear Mr Stanway’s application, I consider it appropriate to dismiss the application under s 47 of the QCAT Act on the basis that it is misconceived.

  1. [40]
    The learned Member observed that even if he was incorrect that the Tribunal did not have jurisdiction for the review, he would conclude that it is appropriate to dismiss the application under s 47 of the QCAT Act on the basis that it is lacking in substance or utility as there is no evidence before him that the BCC wishes to possess and use a suppressor/silencer. The learned Member found:[35]

Even if I am incorrect in my conclusion that the Tribunal does not have jurisdiction, I would still consider it appropriate to dismiss the application under s 47 of the QCAT Act on the basis that it is lacking in substance. Mr Stanway has no authority to act on behalf of the Brisbane City Council, and there is no evidence before me that the Council wishes to possess and use a suppressor/silencer. In these circumstances, there would be no utility in determining the application for an exemption.

  1. [41]
    For the reasons discussed earlier, there was no error in the learned Member’s finding that the Tribunal does not have jurisdiction for Mr Stanway’s application.
  2. [42]
    We consider that it was open for the learned Member to find that it is appropriate to dismiss the application to review under s 47 of the QCAT Act on the basis that the application is misconceived. Indeed, it does not appear that Mr Stanway submits otherwise.
  3. [43]
    The learned Member observations as to whether the application was in any event ‘lacking in substance’ were just that, observations only. The learned Member clearly exercised his power under s 47 of the QCAT Act in allowing the QPS’ application to dismiss the application to review on the basis that the application was misconceived because the Tribunal did not have jurisdiction for the review.
  4. [44]
    There is no material error identified by Mr Stanway in relation to the Tribunal’s decision to dismiss the application to review. Whether or not Mr Stanway made submissions about whether the application was lacking in substance, the outcome would be unaffected and so the error was not material.

Application to rely on fresh or new evidence

  1. [45]
    In the oral hearing, Mr Stanway submitted that the material that would ordinarily be filed under s 21 of the QCAT Act was not filed by QPS. There is next to little or no evidence filed in the proceeding below. Mr Stanway says that because he cannot now file his own material in the proceeding below, he seeks leave to file fresh evidence by way of copies of two unrelated exemptions under the Weapons Act.
  2. [46]
    It is settled law that leave to adduce fresh or new evidence will involve the exercise of a broad discretion having regard to established principles as identified in Ellis & Anor v Queensland Building Services Authority:[36]

…New evidence will ordinarily only be allowed if: it could not have been obtained with reasonable diligence at the time of trial; had the evidence been given, it would have had an important influence on the result (although it need not be decisive); and, the evidence is apparently credible, although not necessarily incontrovertible.

  1. [47]
    Here, the appeal proceeding is decided upon questions of law. Fresh or new evidence will generally be irrelevant where an appeal is decided upon issues of law. An appeal decided on a question or questions of law does not proceed by way of rehearing.[37] Accordingly, there are very limited circumstances in which fresh evidence could possibly be relevant. This appeal turns on a question of statutory construction. That being so, the exemptions sought to be relied upon are irrelevant and leave is refused.
  2. [48]
    In any event if the grounds of appeal should properly be characterised as involving questions of mixed law and fact, we would not be satisfied that Mr Stanway has  established that leave to rely on fresh evidence in the appeal proceeding should be given. The fresh evidence sought to be adduced includes documents that predate the decision of the Tribunal below. Mr Stanway has failed to provide a satisfactory explanation as to why the material could not have been obtained at the time of the proceeding below. Further, Mr Stanway did not seek to rely on the documents that are now fresh or new evidence, in the proceeding below.
  3. [49]
    There is, in any event, no explanation about how the fact of the existence of the unrelated exemptions is relevant to the outcome of the proceedings. As we have said, they are entirely unrelated to the matters raised here, the exempted entities being respectively, armed forces Cadets in the South Queensland and persons holding weapons collector’s licences endorsed with specified conditions. It is not apparent who applied for them. To the extent that the contention raised seems to be that some or many of the persons who are thereby exempted would not know the applicant for the exemption, that does not, or cannot, assist to demonstrate relevance to these proceedings in circumstances, that the Tribunal does not have jurisdiction for the review.
  4. [50]
    We would not be satisfied that the documents would have an important, or any, influence on the outcome of the appeal.

Conclusions and orders

  1. [51]
    We have carefully considered Mr Stanway’s submissions made in support of his appeal. For reasons explained above we find that there is no material error in the Tribunal’s decision. The appeal is without merit.
  2. [52]
    In particular, there is no error in the Tribunal’s interpretation of r 146 of the Weapons Regulation as to the ‘stated date’ that the additional information is to be provided under subsection (2)(b). Further, there is no error in the Tribunal’s finding that s 142(1) of the Weapons Act does not confer jurisdiction on the Tribunal to review a decision that an application is taken to have been withdrawn under r 146(4) of the Weapons Regulation. Mr Stanway was not materially denied procedural fairness by the Tribunal finding that the proceeding lacked substance, because the Tribunal did not so find (it found the application was misconceived), but in any event, even if he had been, because the Tribunal did not have jurisdiction for the review, the error is not material to the outcome of the review application and application to dismiss.
  3. [53]
    The appeal is dismissed, as is the application for leave to rely upon fresh evidence.
  4. [54]
    We make orders accordingly.

Footnotes

[1]  Application to review a decision filed 5 January 2018 and application for miscellaneous matters filed 1 February 2018 in proceeding GAR022-18, together with written submissions filed 21 November 2018.

[2] Stanway v Queensland Police Service – Weapons Licensing [2018] QCAT 219.

[3]  Application for leave to appeal or appeal filed 25 July 2018. See submissions filed by the Mr Stanway on 25 July 2018, 18 September 2018 and 21 November 2011.

[4]  Application for miscellaneous matters filed 21 November 2018.

[5]  Submissions filed by Mr Stanway on 18 September 2018.

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 142(3).

[7] Stanway v Queensland Police Service – Weapons Licensing [2018] QCAT 219, 2 [2].

[8]  Ibid [3].

[9]  Submissions filed by Mr Stanway on 25 July 2018.

[10]  Ibid.

[11]  Submissions filed by Mr Stanway on 21 November 2018.

[12]  Ibid.

[13]  Submissions filed by Mr Stanway on 25 July 2018.

[14] Stanway v Queensland Police Service – Weapons Licensing [2018] QCAT 219, 2 [4].

[15]  Ibid.

[16] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[17] Acts Interpretation Act 1954 (Qld) s 38.

[18]  Emphasis added.

[19]  See, eg, Brisbane City Council v Amos [2016] QSC 131, 8 [38].

[20]  Emphasis added.

[21] Stanway v Queensland Police Service – Weapons Licensing [2018] QCAT 219, 3 [5].

[22] Stanway v Queensland Police Service – Weapons Licensing [2018] QCAT 219, 3 [6].

[23]  Ibid, 4 [8].

[24]  See QPS’s submissions filed 2 November 2018.

[25]  [2019] QCAT 6.

[26] Stanway v Queensland Police Service – Weapons Licensing [2018] QCAT 219, 5 [14].

[27]  [1964] VR 845, 847.

[28] Stanway v Queensland Police Service – Weapons Licensing [2018] QCAT 219, 5 [15].

[29]  Ibid, 4–5 [13]–[14].

[30]  Ibid, 5.

[31]  [1964] VR 845.

[32]  Ibid.

[33]  (2001) 208 CLR 167.

[34] Stanway v Queensland Police Service – Weapons Licensing [2018] QCAT 219, 5 [18].

[35]  Ibid [18]–[19].

[36]  [2010] QCATA 93, 3 [7]. See also Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408.

[37]See, eg, Harrison v Meehan [2017] QCA 315; Albrecht v Commonwealth Bank of Australia [2015] WASC 167; Queensland Building and Construction Commission v Ian James Ericson trading as Flea’s Concreting [2014] QCATA 66.

Close

Editorial Notes

  • Published Case Name:

    Adam Stanway v Queensland Police Service - Weapons Licensing

  • Shortened Case Name:

    Stanway v Queensland Police Service - Weapons Licensing

  • MNC:

    [2019] QCATA 108

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Member Browne

  • Date:

    15 Jul 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.