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  4. Powell v Queensland Police Service – Weapons Licensing - [2022] QCATA 81

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Powell v Queensland Police Service – Weapons Licensing[2022] QCATA 81

Powell v Queensland Police Service – Weapons Licensing[2022] QCATA 81

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Powell v Queensland Police Service – Weapons Licensing [2022] QCATA 81

PARTIES:

TIMOTHY IAN CHARLES POWELL

(applicant/appellant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

APL153-19

APL241-19

ORIGINATING APPLICATION NO/S:

GAR048-19

MATTER TYPE:

Appeals

DELIVERED ON:

9 May 2022

HEARING DATE:

9 December 2021

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

  1. 1The application filed on 17 August 2020 to make a final order in favour of the applicant is refused.
  2. 2In relation to appeal APL153-19, leave to appeal is refused.
  3. 3In relation to appeal APL241-19:
    1. a.leave to appeal on ground (r) of the appeal is refused;
    2. b.the appeal is otherwise dismissed.

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where appeal of decision by Tribunal to confirm decision of respondent to refuse application for weapons licence – whether Tribunal made error of law or fact – where error of fact whether leave to appeal should be granted – where separate appeal of interlocutory decision – whether leave to appeal should be granted

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCSING AND REGISTRATION – whether occupational requirement – whether denial of procedural fairness – whether adequate reasons for decision – whether decision supported by the evidence – whether failure to take account of relevant considerations – whether decision unreasonable

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 48, s 62, s 97,  s 98, s 121, s  142, s 214

Weapons Act 1990 (Qld), s 24, s 77

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Briginshaw v Briginshaw (1938) 60 CLR 336

Department of Child Safety, Youth and Women v PJC and the Public Guardian [2019] QCATA 109

Director-General Department of Justice and Attorney-General v CMH [2021] QCATA 6

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25

Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478

Harrison & Anor v Meehan [2016] QCATA 197

Kio v West (1985) 159 CLR 550

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Pham v Legal Services Commissioner [2015] VSC 671

Powell v Queensland Police Service [2019] QCAT 418

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

R v Conn; R v Conn; Ex parte Attorney-General (Qld) [2017] QCA 220

Sunshine Coast Hospital and Health Service v Webb [2020] QCA 189

SZNBX & Ors v Minister for Immigration and Boarder Protection & Anor [2018] FCCA 445

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

N Nicolson of counsel, instructed by QPS Legal

REASONS FOR DECISION

Background

  1. [1]
    On 12 December 2018, the applicant’s three weapons licences were suspended and on 25 January 2019 they were revoked by the respondent, who concluded that the applicant was not a fit and proper person to hold the licences because of his visual impairment and because he had failed to properly notify the respondent as to his infirmity.[1]
  2. [2]
    In a decision delivered on 26 July 2019, following a Tribunal hearing conducted on 16 April 2019, the Tribunal at first instance confirmed the decision of the respondent.[2] That decision is the subject of appeal APL241-19.
  3. [3]
    Following the 16 April 2019 hearing, but prior to the decision of the Tribunal, on 17 May 2019 the applicant filed an application for miscellaneous matters, seeking directions from the Tribunal that Inspector Smith and Inspector Guild of the Queensland Police Service appear before the Tribunal and explain why they failed to appear at the hearing on 16 April 2019, despite the issuing of notices to appear pursuant to s 97(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), and, further, that they now be directed to appear and give evidence in the matter and also produce certain documents to the Tribunal.[3] That application was refused by the Tribunal on 12 June 2109,[4] and the refusal decision is the subject of the other appeal in this matter, APL153-19.
  4. [4]
    There is also an application, filed by the applicant on 17 August 2020, to make a final order in his favour pursuant to s 48(2)(b)(i) of the QCAT Act. In directions made on 3 September 2020, it was directed that this application will be heard and determined with the applications for leave to appeal or appeal.

The Weapons Act

  1. [5]
    The circumstances in which a licence may be issued and the relevant principles are set out in the Weapons Act 1990 (Qld) (‘the Weapons Act’). Section 3 provides the principles and objects of the Act:
    1. (1)
      The principles underlying the Act are as follows –
  1. (a)
    weapon possession and use are subordinate to the need to ensure public and individual safety;
  1. (b)
    public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.
  1. (2)
    The object of this Act is to prevent the misuse of weapons
  1. [6]
    By s 10(2)(e) of the Weapons Act, a licence may be issued to an individual only if the person ‘is a fit and proper person to hold a licence’. By s 10B(1)(a), in deciding or considering whether a person is a ‘fit and proper person’, an authorised officer must consider, among other things, ‘the mental and physical fitness of the person’.

Application to make final order in favour of applicant

  1. [7]
    The application to make a final order in favour of the applicant was made on the grounds that the respondent had not complied with Tribunal directions, the QCAT Act and Rules and has ‘attempted to deceive’ the Tribunal, to the disadvantage of the applicant.[5] In particular it is stated that the respondent:
    1. (a)
      failed to comply with the Rules by failing to advise the applicant of their change of address for service;[6]
    2. (b)
      failed to comply with directions and the Act by not serving the applicant in accordance with Practice Direction 8 of 2009 and serving after the time directed;[7] and
    1. (c)
      in seeking an extension of time to file material, attempted to deceive the Tribunal by stating that the applicant had failed to serve applications for miscellaneous matters on the respondent as directed.[8]
  1. [8]
    The application to make a final order is made pursuant to s 48(2)(b)(i) of the QCAT Act, which provides that the Tribunal may make a final decision in the proceeding in the applicant’s favour if the Tribunal considers the respondent is ‘acting in a way that unnecessarily disadvantages’ the applicant, including, among other things, by:
    1. (a)
      not complying with a tribunal order or direction without reasonable excuse; or
    2. (b)
      not complying with the Act, an enabling Act or the rules; or
  1. (e)
     attempting to deceive another party or the tribunal; 
  1. [9]
    The applicant has not demonstrated that he was disadvantaged in a relevant sense by the conduct of the respondent, to the extent that it would be appropriate to make a final order in his favour. The consequence of any such order would be to allow the granting of weapons licences to the applicant, notwithstanding the issue of his suitability to hold such licences. The consequence of the making of an order under s 48(2)(b)(i) of the QCAT Act is a relevant consideration in determining whether the order should be made.
  1. [10]
    The applicant submits that he was disadvantaged because, among other things, of the failure of the respondent to notify a change of address.[9] In particular, in addition to reference to consequent stress and to ongoing breaches of the rules in the course of the appeal proceedings,[10] reference is made to comments made by the Tribunal at first instance, wherein it wrongly accepted the submission of the respondent that the late serving of material by the applicant appeared to be deliberate.[11] The applicant also refers to a subsequent comment made by the Tribunal at first instance ‘that the conduct of the Applicant as described in this evidence is a relevant fact that I may take into account in deciding if the Applicant is a fit and proper person to hold a weapons licence’.[12] However, it appears that this comment relates to an observation made in the immediately preceding paragraph. In that paragraph reference is made to a complaint made by the applicant to the police alleging deprivation of his liberty by his then employer, in relation to which the learned Member states that ‘the tenor of the complaint suggests that the Applicant has difficulty in his routine dealings with people, including those who exercise a degree of authority over him’.[13]
  2. [11]
    In any event, although the Tribunal Member stated that the conduct of the applicant is a relevant consideration,[14] it is evident that the final decision made by the Tribunal at first instance rested substantially on the applicant’s health issues and his failure to notify the respondent of those issues.[15] Also, in a list of ‘negative considerations’, the Tribunal at first instance does not refer directly to an issue in relation to late serving of material.[16]
  3. [12]
    In those circumstances, the application to make a final order in favour of the applicant is refused.

APL153-19

  1. [13]
    The background to this appeal is noted at [3], above. In relation to the decision of 12 June 2019 to refuse the application for miscellaneous matters, the Tribunal at first instance stated that the application was refused because the relevant officers were unavailable to attend the hearing for legitimate reasons and because the information sought by the applicant was irrelevant to the substantive issue to be decided by the Tribunal and was akin to a fishing expedition.[17]
  2. [14]
    In relation to this matter, the grounds of appeal are:
    1. (1)
      In relation to the decision not to require the two Inspectors to explain why they failed to appear at the hearing, the decision was contrary to the provisions of the QCAT Act, including ss 3(b), (c) and (e), 97, 98 and 214.
    2. (2)
      In relation to the decision not to require production of the documents, the decision was contrary to the provisions of the QCAT Act, including ss 3(b), (c) and (e), 62(3), 97, 98 and 214.
    3. (3)
      In relation to the decision not to require the Inspectors to appear before the Tribunal and give evidence:
      1. the decision was contrary to the provisions of the QCAT Act, including ss 3(b), (c) and (e);
      2. the Tribunal erred by placing insufficient weight on the notice directing the Inspectors to appear and on the applicant’s submissions;
      3. the Tribunal erred by requesting oral submissions unannounced and in accepting oral submissions from the respondent at a telephone hearing held on 7 June 2019;
      4. the Tribunal erred in concluding that any evidence given by the Inspectors would not have influenced the final decision in GAR 048-19.
  1. [15]
    Because the appeal in APL153-19 is not in relation to a final decision in the proceedings, leave to appeal is required.[18] Where leave is given, the appeal is decided by way of rehearing.[19] The Appeal Tribunal in Harrison and Anor v Meehan set out the criteria for determining whether leave should be granted (citations omitted):[20]

The relevant principles to be applied in determining whether to grant leave to appeal are well established: Is there a reasonably arguable case of error in the primary decision; Is there a reasonable prospect that the applicant will obtain substantive relief; Is leave necessary to correct a substantial injustice to the applicant caused by some error; Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.

  1. [16]
    The applicant refers to ss 3(b), (c) and (e), 62(3), 97, 98 and 214 of the QCAT Act. Section 3 sets out the objects of the Act, which include:
  1. (b)
    to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick; and
  1. (c)
    to promote the quality and consistency of tribunal decisions; and
  1. (e)
    to enhance the openness and accountability of public administration.
  1. [17]
    Section 62(3) of the QCAT Act confers power on the Tribunal to make directions requiring a party to the proceedings ‘to produce a document or another thing, or provide information’ to the Tribunal or another party to the proceeding. Section 97 deals with the power to require witnesses to attend or produce a document or thing, while s 98 confers powers in relation to the calling and examining of witnesses. Section 214 of the QCAT Act is an offence provision, applicable where a person, without reasonable excuse, fails to comply with a notice given under s 97. Sections, 62(3), 97 and 98 confer discretionary powers on the Tribunal.
  2. [18]
    As noted at [14] above, there are 3 grounds of appeal. Ground 1 of the appeal relates to the decision not to require the two Inspectors to appear before the Tribunal and explain why they failed to appear at the hearing. In his oral reasons for the decision, the Tribunal Member noted that the applicant did not seek to have Inspector Smith and Inspector Guild appear until 8 days before the hearing and that they did not attend the hearing on 16 April 2019 because ‘both were otherwise assigned; one of them being in New Zealand following the Christchurch killings’.[21] It was further stated that the late application made it less likely that the Inspectors would be available for the hearing and, given the earlier advice as to their assignments, there was no reason to have them now appear and explain their absence.[22] On that basis, the application to require the Inspectors to appear and explain their absence was refused. Also, as is noted below, neither of the Inspectors was a decision-maker in relation to the suspension of the licence and any evidence they might have given was not now relevant to the question of whether the applicant is a fit and proper person to hold a licence.
  3. [19]
    There is no indication of error in the exercise of the discretion on the part of the Tribunal at first instance, such that would warrant the granting of leave to appeal. Nor is there an evident need to correct a substantial injustice or any question of general importance such that leave should be given. Leave to appeal on this ground is refused.
  4. [20]
    Ground 2 of the appeal relates to the decision not to require Inspector Smith and Inspector Guild to produce specified documents to the Tribunal. The request related to any documents dated between 7 and 17 April 2019 regarding attendance notices and attempts to serve them, their work roster/time sheets, and ‘any other document or thing deemed appropriate by the Tribunal’. Evidently, this was intended to go to the question of why the Inspectors had not attended the hearing on 16 April 2019.
  5. [21]
    The Tribunal Member stated that neither of the Inspectors was a decision-maker in relation to the suspension of the licences, that the applicant was seeking information irrelevant to a substantive issue, and that the request was ‘akin to a fishing expedition’.[23] He also stated that the Inspectors were unavailable to attend for ‘legitimate reasons’ and that he ‘was satisfied that the absence of these witnesses was justifiable in the circumstances’.[24]
  6. [22]
    On the material before it, the decision of the Tribunal at first instance was reasonably open. For the reasons outlined in relation to ground 1, leave to appeal on this second ground of appeal is refused.
  7. [23]
    The third ground of appeal relates to the decision not to require the Inspectors to appear before the Tribunal and give evidence. As noted above, the Tribunal at first instance concluded that neither of the Inspectors was a decision-maker in relation to the suspension of the licences and that any evidence that they might give was irrelevant to a substantive issue; that is, whether at any relevant time the applicant was a fit and proper person to hold firearm licences.[25] It was noted that the applicant stated that there were two matters in relation to which they could give evidence: first, as to the processes adopted in the Weapons Branch and, second, in relation to discussions held with Inspector Smith in April 2018 concerning the applicant’s health issues and any applicable period of revocation of his weapons licences.[26] In relation to those matters, the Tribunal Member stated that the Weapons Licensing processes were covered in some depth during the review hearing and that any views held by the Inspectors in April 2018 as to whether or not the applicant’s licences should be renewed were irrelevant to considerations now arising as to whether the applicant was a fit and proper person to hold a licence.[27] It was noted that ‘circumstances have changed, which, in the absence of any compelling indication to the contrary, render the earlier decisions of these two officers, I believe, irrelevant’.[28]
  8. [24]
    The applicant’s licences were suspended on 12 December 2018 and revoked on 25 January 2019.[29] The revocation decision was based on a report of an ophthalmologist dated 3 October 2018 and a report from the applicant’s GP dated 7 January 2019, which indicated poor visual acuity.[30] His GP stated: ‘With his severe loss of visual acuity it is imperative that he not be allowed to load or discharge a firearm in any circumstances’.[31] In relation to the alleged failure to properly notify the respondent concerning his infirmity, in the reasons for the decision at first instance it is stated that the applicant was aware of his deteriorating eye sight at least from December 2017 and did not report any physical disability when he made his application for renewal of the licences in May 2018.[32]
  9. [25]
    Given the medical evidence relied upon as the basis for the revocation of the licences, which arose late in 2018, anything that might have been said by the Inspectors several months earlier is of little or no relevance. Again, it is noted that they were not the decision-makers in relation to the January 2019 revocation decision.
  10. [26]
    Under this third ground of appeal it is also claimed that the ‘Tribunal erred by requesting oral submissions unannounced and in accepting oral submissions from the respondent at a telephone hearing held on 7 June 2019’. The hearing of 7 June 2019 related to a separate application filed by the applicant on 3 June 2019, seeking a stay of the decision of the Queensland Police Service to revoke his firearms licences. This application was also made after the review hearing conducted on 16 April 2019. The applicant appeared at the hearing of 7 June 2019.
  11. [27]
    At the outset of the 7 June 2019 stay hearing, reference was made to both the stay application and the application concerning the attendance of the two Inspectors and it was stated that further reference would also be made to the latter ‘if the parties are happy to do that’.[33] Subsequently, the parties were given an opportunity to make submissions in relation to that separate application.[34] The applicant indicated that he had not prepared for that matter, to which the Member responded: ‘if you don’t want to do it, you don’t have to’.[35] The Member further stated that in relation to that application a decision was to be made on the papers, on the basis of the application made including the supporting submissions and documentation, but that he was giving a further opportunity to the applicant to make oral submissions.[36] The applicant then made some oral submissions, including speculation as to whether the Inspectors might have been seeking to avoid giving evidence and as to conversations he had with them a year earlier.[37]  The respondent made brief submissions in response, sating in effect that the issues had been comprehensively covered in the hearing.[38]
  12. [28]
    It is not evident that the applicant suffered any detriment from the approach taken. There has been no denial of procedural fairness. The applicant was simply given a further opportunity to make submissions to supplement his written submissions and there was nothing of significance that arose in the brief oral submissions of the respondent.
  1. [29]
    For the reasons outlined in relation to ground 1, leave to appeal on this third ground of appeal is refused. Leave to appeal in relation to matter APL153-19 is refused.

APL241-19

  1. [30]
    APL241-19 is an appeal in relation to the substantive decision in GAR048-19, confirming the decision of the respondent to suspend and revoke the applicant’s weapons licences.
  2. [31]
    The applicant lists 27 grounds of appeal, which may be summarised as follows:
    1. (a)
      The direction that the respondent file their material first and also in reply was not the usual procedure, was unfair to the applicant and contrary to s 3(b) of the QCAT Act.
    2. (b)
      On the day prior to the Tribunal hearing, in refusing the applicant’s application for an adjournment of the Tribunal hearing, the Tribunal did not advise the applicant of his review rights, contrary to s 121(2) of the QCAT Act.
    3. (c)
      At the Tribunal hearing, the refusal of the applicant’s application for an adjournment was unfair and contrary to s 3(b) of the QCAT Act.
    4. (d)
      As with ground (b), in refusing the application for an adjournment made at the Tribunal hearing, the Tribunal did not advise the applicant of his review rights, contrary to s 121(2) of the QCAT Act.

In relation to the other grounds of appeal, the Tribunal Member erred:

  1. (e)
    in failing to recuse himself from the hearing when concerns were raised as to his impartiality.
  2. (f)
    by vacating a non-publication order made at the hearing.
  3. (g)
    by finding that alleged criminal intelligence was ‘criminal intelligence’ under the Weapons Act 1990 (Qld).
  4. (h)
    in describing the facts relating to the alleged criminal intelligence.
  5. (i)
    in concluding that the applicant had unlawfully worn a Queensland Police Service badge.
  6. (j)
    further to ground (i), in relying on evidence unlawfully obtained.
  7. (k)
    by stating that the applicant had been granted a Collectors Licence.
  8. (l)
    by stating that the applicant asserted that he had discharged his obligations under s 24 of the Weapons Act 1990 (Qld) by other means
  9. (m)
    by failing to request, obtain and consider the sentencing remarks in two Commonwealth prosecutions.
  10. (n)
    in his conclusions as to the findings of the Courts in cases involving the applicant.
  11. (o)
    in wrongly accepting and drawing adverse inferences from the respondent’s knowingly false submissions in relation to the applicant’s filing and serving of materials for the hearing.
  12. (p)
    in concluding that the applicant has difficulties in his dealings with people.
  13. (q)
    in its listing of the number of positive and negative considerations noted in relation to the applicant.
  14. (r)
    in placing no weight on the applicant’s material for the hearing.
  15. (s)
    in concluding that the applicant is guilty of a criminal offence he was not charged with.
  16. (t)
    in concluding that the applicant’s temporary visual impairment caused the applicant to cease shooting in February 2018.
  17. (u)
    in concluding that the applicant’s temporary visual impairment alone prevents the applicant from being a fit and proper person.
  18. (v)
    in concluding that the applicant’s temporary visual impairment alone prevents the applicant from holding all of his weapons licences.
  19. (w)
    in concluding that the applicant is not a fit and proper person to hold a weapons licence.
  20. (x)
    by failing to provide reasons for many of his findings.
  21. (y)
    by failing to make a final decision in favour of the applicant under s 48(1)(a) and (e) of the QCAT Act.
  22. (z)
    in making a final decision when an interlocutory matter was on appeal
  23. (aa)
    perceived bias
  1. [32]
    Other than in relation to ground (r), the grounds of appeal raise questions of law: denial of procedural fairness (grounds a to d, f, m, z); perceived bias (grounds e, aa); no evidence (grounds g to l, n, p, s, t); acting upon a wrong principle (grounds o, y); failure to take account of relevant considerations (ground q); finding not reasonably open (grounds u to w); and failure to provide adequate reasons (ground x). Ground (r) is that the finding was against the weight of the evidence.[39]

Ground (a)

  1. [33]
    Ground (a) is that the direction that the respondent file their material first and also in reply was not the usual procedure, was unfair to the applicant and contrary to s 3(b) of the QCAT Act. It is submitted that some material that should have been provided initially by the respondent  was only included in the material filed in reply, with the consequence that the applicant was denied the opportunity to file further material in response to the reply material.[40] In particular, reference was made to the criminal history in relation to customs matters, which information was provided by the respondent as part of the reply.[41] The applicant acknowledges that he was aware of that history and had chosen not to produce the material himself and, also, that he had an opportunity to make oral submissions on that issue at the hearing.[42]
  2. [34]
    While the scope of the duty to provide procedural fairness is not fixed, in the present context it is a question of whether the parties have had a reasonable opportunity to present their case.[43] There is no indication that the applicant did not have that opportunity. No specific prejudice is indicated, given the opportunity to make submissions in relation to a matter of which the applicant was well aware. This ground of appeal is rejected.

Grounds (b) and (d)

  1. [35]
    Grounds (b) and (d) are that in refusing applications for adjournment of the hearing, the Tribunal did not advise the applicant of his review rights, contrary to s 121(2) of the QCAT Act.
  2. [36]
    However, s 121(2) of the QCAT Act is headed ‘Giving final decision other than in an appeal’ and it is evident from the tenor of the provision that the several requirements of the Tribunal set out in that section apply only where the Tribunal has made a final decision in the proceedings. It does not apply where, for example, there is refusal of an adjournment. In any event, it does not automatically follow that an act that is not in accordance with a statutory provision is invalid. As noted in Project Blue Sky Inc and Others v Australian Broadcasting Authority,[44] it is a question of the purpose of the legislation and, in assessing that purpose, ‘regard must be had to the “language of the relevant provision and the scope and object of the whole statute”’. In that context, it is not evident that the purpose of s 121 is to invalidate the final decision of the Tribunal where s 121(2) has not been complied with, particularly given the potentially serious consequences of doing so.[45] These grounds of appeal also are rejected.

Ground (c)

  1. [37]
    Ground (c) of the appeal is that the refusal of the applicant’s application for an adjournment was unfair and contrary to s 3(b) of the QCAT Act. As with ground (a), this raises a question of procedural fairness.
  1. [38]
    It is evident from the transcript,[46] referred to by the applicant,[47] that the reason for seeking the adjournment was the unavailability of the two Inspectors referred to at [3], above. That issue is the subject matter of APL153-19. Given the discussion and conclusions drawn in relation to that matter, in particular the lack of relevance of any evidence that might have been given by those witnesses, it is not evident that the exercise of the discretion by the Tribunal at first instance to deny the adjournment was improper. This ground of appeal also is rejected.

Ground (e)

  1. [39]
    Ground (e) of the appeal is that the Tribunal Member erred in failing to recuse himself from the hearing when concerns were raised as to his impartiality.[48] The applicant refers to security concerns in relation to the hearing raised by the respondent.[49] The applicant also refers to a passage in the transcript where, in response to the applicant’s enquires, the Tribunal Member  said that the matter was being heard in the Supreme Court building because of better security, but that he had not been in receipt of information that the applicant intended to attend the hearing with a firearm and ammunition.[50]
  2. [40]
    The applicant submits that this was false information and was highly prejudicial to him, in circumstances where the Tribunal was tasked with determining whether the applicant was a fit and proper person and, as such, the Member should have recused himself.[51] However, the applicant said that he did not see how he could get a fair hearing ‘no matter who the tribunal member was’.[52] Also, no application was made by the applicant for the Member to recuse himself. Further, as appears from the transcript, the Member was not aware of the specific security issue until it was referred to by the applicant. In response to the concerns expressed by the applicant, the Tribunal Member outlined his role and responsibilities in conducting the hearing and stressed that the security issued did not enter into the decision he was to make.[53]
  3. [41]
    The question is one of whether a fair-minded lay observer might reasonably apprehend that the Member might not bring an impartial mind to the resolution of the question to be decided.[54] The question is one of possibility, real and not remote.[55] Any objection to a Member sitting ‘should not prevail unless it is based upon a substantial ground for contending that the (member) is disqualified from hearing and deciding the case’.[56] The fundamental principle is that cases ‘must be decided by an independent and impartial tribunal’.[57]
  4. [42]
    In the circumstances as outline above, there is nothing to suggest that the Member might not bring an independent and impartial mind to the determination of the matter. There is simply a hypothesis that the Member might be influenced by a matter the details of which the applicant himself brought to the attention of the Tribunal. Indeed, the hypothesis was that no matter who heard the matter that influence might arise. This ground of appeal also is rejected.

Ground (f)

  1. [43]
    Ground (f) of the appeal is that the Tribunal erred by vacating a non-publication order made at the hearing. Reference is made to the transcript where the Tribunal Member said that he had ‘made a note that in this matter (the applicant) will be de-identified’.[58]  That comment was made following submissions from the applicant in support of a non-publication order, primarily based on non-disclosure of his medical condition.[59] In his reasons for the decision, the Tribunal Member noted that while he had been of the view that there was no evident reason why the request should not be granted, for three reasons he had since decided otherwise.[60] First, the applicant had numerous previous appearances before the Tribunal and various courts dealing with weapons-related matters where his name had not been supressed. Second, there was nothing in the decision that could be seen as compromising the applicant’s medical history and, third, the applicant had previously disclosed his medical condition on public forums such as internet chat rooms.[61]
  2. [44]
    The applicant does not make clear what outcome he is seeking in relation to this ground of appeal. It is not submitted that it should in itself invalidate the decision, but rather it is said that it is indicative that the Tribunal Member did not read the transcript or the applicant’s review submissions, which, in turn, is indicative of an error of law.[62] However, leaving to one side that there is no obligation to obtain and read the transcript, the fact that the Member referred in his reasons to the earlier view that there should be a non-publication order rather suggests that he had made a note or had read the transcript. There is no evident unfairness given that the applicant was allowed the opportunity and did make submissions in relation to non-publication. There is no indication of any further submissions that might have been made on that subject. This ground of appeal also is rejected.
  3. [45]
    At the appeal hearing, the applicant stated that there had also been an application for a non-publication order in relation to the appeal decision.[63] However, this application proceeded on the assumption that the decision in the matter at first instance had not been reported.[64] In fact it has been reported and is publicly available.[65] Given the inevitable cross reference to the decision and reasons at first instance in the present appeal, there would be no utility in making a non-publication order in relation to the appeal decision. Accordingly, the application for a non-publication order in relation to the appeal decision is refused.

Ground (g) to (j)

  1. [46]
    Grounds (g) to (j) of the appeal are inter-related.[66] They are that the Tribunal erred by (g) finding that alleged criminal intelligence was ‘criminal intelligence’ under the Weapons Act; (h) in describing the facts relating to the alleged criminal intelligence; (i) in concluding that the applicant had unlawfully worn a Queensland Police Service badge; and (j) in relying on evidence unlawfully obtained.
  2. [47]
    By s 10B of the Weapons Act, criminal intelligence is a factor to be considered in relation to whether a person is a fit and proper person to hold a licence. In Schedule 2 to that Act, ‘criminal intelligence’ means ‘any information about the person’s connection with or involvement in criminal activity’. In his reasons, the Tribunal Member states that he had been provided with criminal intelligence in relation to the applicant offering for sale firearms in which he claims to have a Federal Firearms Licence, and photographs of the applicant wearing a Queensland Police badge, to which he appears to have no entitlement.[67] The applicant states that the photograph was taken in the privacy of his own home, there was no prosecution in relation to it, and the respondent had no authority to publish the photograph.[68]
  3. [48]
    While the Tribunal Member states that he does draw an adverse inference against the applicant in relation to the unauthorised wearing of the police badge, he also states that there was no evidence to indicate whether the applicant holds a Federal Firearms Licence, so that ‘this evidence provides little value’.[69] It is not one of the factors listed in the reasons under ‘Negative Considerations’.[70] While the wearing of the badge is one of the 12 listed considerations, in the conclusions drawn as to the applicant’s fitness there is no direct reference to that issue. Rather, the focus is on the applicant’s medical condition, his failure to notify of the impairment, and matters such as the court cases involving the importation of weapons or weapon parts.[71] Accordingly, it is evident that the ultimate conclusion drawn by the Tribunal at first instance would have been the same regardless of the police badge issue. In other words, to the extent that there was any error, it would not have affected the final outcome of the hearing. A decision will not be set aside on account of an error of law, fact or misdirection that has not resulted in a miscarriage of justice.[72] Accordingly, these grounds of appeal also are rejected. 

Ground (k)

  1. [49]
    Ground (k) of the appeal is that the Tribunal erred by stating that the applicant had been granted a Collectors Licence on 19 April 2017.[73] The applicant submits that there was no evidence that he had been granted such a licence on that date.[74] The applicant further submits that while this ‘may seem trivial’, with other errors there is a ‘snowball’ effect.[75] However, even when considered with other alleged errors, it would not have affected the final outcome of the appeal. It is not a matter referred to elsewhere in the reasons and nor is it a matter which had any evident bearing on the decision of the Tribunal at first instance. This ground of appeal also is rejected.

Ground (l)

  1. [50]
    Ground (l) of the appeal is that the Tribunal erred by stating that the applicant asserted that he had discharged his obligations under s 24 of the Weapons Act 1990 (Qld) by other means.[76] Section 24 requires the holder of a licence to give notification of any relevant change in circumstances, including in relation to mental or physical fitness. The applicant submits that there was no evidence that he had made any such assertion and, again, while acknowledging that ‘this may seem trivial’ it again demonstrates that the Tribunal Member had not read the Transcript.[77] At the appeal hearing, the applicant declined to answer the question as to whether he had discharged his obligation under s 24 of the Weapons Act.[78] This ground of appeal is rejected for the reason given in relation to ground (k).

Ground (m)

  1. [51]
    Ground (m) of the appeal is that the Tribunal erred by failing to request, obtain and consider the sentencing remarks in two Commonwealth prosecutions. In relation to a suggested ‘duty to enquire’, as noted in Minister for Immigration and Citizenship v SZIAI:[79]

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

  1. [52]
    In relation to this ground, the applicant repeats the submission made in relation to ground (a); that is, because these offences were referred to only in the respondent’s reply material, the applicant was denied the opportunity to supply material relating to the sentencing remarks which were favourable to him.[80] However, as in relation to ground (a), the applicant was aware of this information and chose not to include it as part of his material. After noting that the respondent filed its material first, he stated: ‘They remained silent on the Customs prosecutions. So – so did I’.[81] 
  2. [53]
    There is no indication that the applicant made a subsequent application to produce this material or to have it produced. He had the opportunity to include it as part of his initial material, but chose not to. In those circumstances, there is no relevant error on the part of the Tribunal at first instance in not instigating its own enquiries. This ground of appeal also is rejected.

Ground (n)

  1. [54]
    Ground (n) of the appeal is that the Tribunal erred in its conclusions as to the findings of the Courts in cases involving the applicant. It is submitted that the Tribunal Member erred in wrongly stating that the Court of Appeal acquitted the applicant. The applicant acknowledges that this ground of appeal ‘may seem trivial’, but it demonstrates how the Member has confused the most basic pieces of information he considered’.[82]  This ground of appeal is rejected for the same reason as for ground (k).

Ground (o)

  1. [55]
    Ground (o) of the appeal is that the Tribunal erred in wrongly accepting and drawing adverse inferences from the respondent’s knowingly false submissions in relation to the applicant’s filing and serving of materials for the hearing.[83] With reference to the decision in Briginshaw v Briginshaw,[84] it is submitted that in accepting the respondent’s evidence on this issue the Tribunal failed to apply the correct standard of proof.[85] However, as noted in Director-General Department of Justice and Attorney-General v CMH,[86] these are not adversarial proceedings, the Tribunal is not bound by the rules of evidence, and the rule in Briginshaw is a rule of evidence derived from adversarial proceedings. This is a merits review, whereby the Tribunal, as with the original decision-maker, must be ‘satisfied’ as to specified matters, which need not be determined by reference to notions of onus and standard of proof.
  2. [56]
    In relation to the potential impact of any adverse findings of the Tribunal on this issue, that has been dealt with, above, in considering the application to make a final order in favour of the applicant. Also for the reasons outlined at [10]-[11], above, this ground of appeal is rejected.

Ground (p)

  1. [57]
    Ground (p) of the appeal is that the Tribunal erred in concluding that the applicant has difficulties in his dealings with people. The applicant submits that there was no evidence to justify that conclusion.[87] This ground of appeal is rejected for the same reason as for ground (k).

Ground (q)

  1. [58]
    Ground (q) of the appeal is that the Tribunal erred in its listing of the number of positive and negative considerations of the applicant. In particular, it is submitted that in the ‘Positive Considerations’ at [118] of the reasons, there is no reference to the applicant’s ‘registering of unregistered firearms, and his assistance with law enforcement’[88] nor to the positive findings of the judge in one of his court matters.[89]
  2. [59]
    However, it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in the written reasons.[90] This is not a matter, taken either alone or with other matters raised by the applicant, that would have changed the ultimate conclusion of the Tribunal. As noted in relation to grounds (g) to (j), the primary considerations were the impairment and the failure to notify of that impairment. As noted by the Tribunal at first instance:[91]

The fact that the Applicant suffered a serious health issue, being his visual impairment, yet failed to notify the QPS within the time specified by law is an issue of concern. The Applicant has suffered in recent years from, inter alia, back and neck injuries, a heart attack, cancer and, most recently, from visual impairment. The Applicant failed to notify the QPS within the 14 days specified by law, or even within what could be considered a reasonable time of his visual impairment. This fact, alone, gives rise to serious concerns about the Applicant’s readiness or willingness to comply with the law when it may not suit him.

  1. [60]
    Specific reference is also made to driving penalties and matters involving the importation of weapons and weapon parts as reflecting ‘a disposition over a long period of time to ignore, or otherwise carelessly or deliberately to break the law’.[92] This ground of appeal also is rejected.

Ground (r)

  1. [61]
    Ground (r) of the appeal is that the Tribunal erred in placing no weight on the applicant’s material for the hearing.[93] This reflects other grounds of appeal where it is argued that certain evidence of the applicant was not taken into account. However, as distinct from the other submissions dealing with a failure to take account of relevant considerations or the making of findings where there was no evidence, which are questions of law, the issue of weight is a question of fact. Accordingly leave to appeal is required.
  2. [62]
    Leave to appeal on this ground is refused. For the reasons outlined in the other related grounds of appeal, there is not a reasonable prospect that the applicant will obtain substantive relief if leave is given and nor is leave necessary to correct a substantial injustice to the applicant.

Ground (s)

  1. [63]
    Ground (s) of the appeal is that the Tribunal erred in concluding that the applicant is guilty of a criminal offence he was not charged with. In his written submissions, the applicant submits that findings were made that ‘inferred or stated’ that he was guilty of specified criminal offences: impersonating the police, contravene weapons licence conditions, unlawfully acquiring firearm, failure to comply with the Tribunal’s directions, provide false information to the Tribunal and fabricating evidence, and fare evasion.[94] This ground appears to be based on a submission that there is no evidence to support such findings.
  2. [64]
    However, the passages referred to by the applicant in the reasons for decision do not bear out the applicant’s submission that it was inferred or stated that he was guilty of criminal offences. Reference is made in the reasons to the applicant wearing a police badge without authority to do so,[95] failure to notify of his visual infirmity,[96] the refusal of a permit to acquire a weapon and the rescinding of a weapons licence,[97] the failure to comply with directions relating to the service of materials ‘appears to be deliberate’,[98] and the applicant’s initial refusal to provide his name to the Translink Senior Network Officers in relation to fare evasion.[99] The applicant does not contest the accuracy of the underlying facts, other than the assertion of a failure to comply with Tribunal directions, but rather rests this ground on a wrongful inference or statement. However, the Tribunal at first instance did not draw the conclusions as asserted. What conclusions might or might not be drawn by inference is a matter for speculation and does not give rise to error on the part of the Tribunal simply on the basis that the Tribunal referred to certain factual issues. No reference is made in the reasons to any inference that might or might not be drawn. This ground of appeal also is rejected.

Ground (t)

  1. [65]
    Ground (t) of the appeal is that the Tribunal erred in concluding that the applicant’s temporary visual impairment caused the applicant to cease shooting in February 2018. This ground is also based on a submission that there was no evidence to support the finding.[100] In its reasons, the Tribunal at first instance stated:[101]

[125] The Applicant stated in his evidence and submissions that he has not fired a firearm since February 2018. The reasons given for this by the Applicant were said to be due to his recovery from cancer surgery and problems with his sight, without specifying dates concerning each. Based on this evidence I am entitled to conclude that the Applicant’s awareness of his visual impairment was a major contributing factor to his decision to cease shooting after February 2018.

[126] While the Applicant stated that his sight deteriorated significantly in late 2018, I am satisfied that he was well aware of the fact that his sight was inadequate to shoot safely from or shortly after February 2018, noting that the original diagnosis of cataracts was made in or around December 2017. Most of the more recent deterioration in his sight the Applicant refers to appears to concern his increasing sensitivity to light

  1. [66]
    In submissions filed by the applicant on 4 February 2019,[102] he stated that he had been on the waiting list for surgery to correct an impairment in both eyes for over one year, which would take his awareness of the issue back to at least February 2018. A central issue in the reasons of the Tribunal at first instance was the failure to notify of the impairment. Whether or not the impairment was a contributing factor to the decision to cease shooting after February 2018 is an incidental issue. While the applicant submits that he made no admission that he ceased pistol shooting in February 2018 ‘as a direct result of his visual impairment’,[103] it is evident that it is not an issue that did or could have impacted the decision of the Tribunal at first instance in this matter. This ground of appeal also is rejected.

Grounds (u) to (w)

  1. [67]
    Grounds (u) and (v) of the appeal are that the Tribunal erred in concluding that the applicant’s temporary visual impairment alone prevents the applicant from being a fit and proper person (ground u) or from holding a weapons licence (ground v). Ground (w) of the appeal is that the Tribunal erred in concluding that the applicant is not a fit and proper person to hold a weapons licence. The applicant stated that ground (w) is related to grounds (u) and (v).[104]
  2. [68]
    The applicant refers to [36] of the reasons of the Tribunal at first instance,[105] where it is stated:[106]

It is self-evident that a person with ‘severe loss of visual acuity and extreme sensitivity to sunlight’ should not be permitted to handle weapons capable of being fired in conjunction with handling ammunition on the basis that this person does not possess the essential physical capabilities necessary to do so safely. This conclusion is supported by the opinions expressed by the Applicant’s medical practitioners

  1. [69]
    The applicant submits that even if the impairment were permanent, it would not prevent him from holding a weapons licence, noting that he could safely hold a Collectors Licence.[107] However, in the passage referred to, reference is made to ‘weapons capable of being fired in conjunction with handling ammunition’. In that context, it is noted that the applicant’s general practitioner stated that with ‘his severe loss of visual acuity it is imperative that (the applicant) not be allowed to load or discharge a firearm under any circumstances’.
  2. [70]
    It appears that this ground is based on a submission that no reasonable Tribunal could have made that finding. However, it was reasonably open to the Tribunal to draw the conclusion set out at [36], based on the medical evidence. The extrapolation sought to be made by the applicant is not reasonably open; that is, that in that passage the Tribunal was referring generally to any licence, including a Collectors Licence under which weapons are made inoperable or are inert. The applicant notes that s 77 of the Weapons Act imposes conditions that prevent the discharge of weapons held under a Collectors Licence.[108] These grounds of appeal also are rejected.

Ground (x)

  1. [71]
    Ground (x) of the appeal is that the Tribunal erred by failing to provide reasons for many of its findings. It is submitted that the decision contains findings that are not explained, as exemplified by the finding referred to under ground (o) in relation to the alleged late filing of material by the applicant.[109] 
  2. [72]
    As noted by the Federal Court of Appeal in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs:[110]

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

  1. [73]
    In R v Conn; R v Conn; Ex parte Attorney-General (Qld)[111], the Queensland Court of Appeal adopted what was said by Edelman J in GAX v The Queen:[112]

The obligation to provide adequate reasons does not require a court of appeal to write reasons which disclose every aspect of the thought process which leads to the court’s conclusion independently of the manner in which the case was presented.  Submissions provide context to the reasons given by a court.

  1. [74]
    In the present matter, the Tribunal at first instance provided comprehensive reasons for its decision. As is evident from the discussion in relation to the matter raised under ground (o), discussed at [10]-[11] and [55]-[56], above, and in relation to other findings by the Tribunal at first instance referred to in the grounds of appeal, to the extent that comprehensive reasons were not provided it is evident that the issues were such that they were not central to the final decision of the Tribunal.  This ground of appeal also is rejected.

Ground (y)

  1. [75]
    Ground (y) of the appeal is that the Tribunal erred by failing to make a final decision in favour of the applicant under s 48(1)(a) and (e) of the QCAT Act. In the applicant’s written submissions,[113] reference is made to a number of false statements said to have been made by the respondent during the course of the proceedings, as well as to incidents of the respondent’s alleged failure to comply with Tribunal directions. Some of these allegations arise under other grounds of appeal.[114] They go to matters that were not central to the decision of the Tribunal at first instance; for example, the respondent decision-maker saying that she had been at Weapons Licensing only for a short period of time, that the respondent had made submissions during the Tribunal hearing that Inspector Smith was in New Zealand, and that the respondent stated ‘on numerous occasions’ that the applicant had not served filed material on the respondent.
  2. [76]
    The applicant submits that on that basis there should have been a final decision in his favour pursuant to s 48 of the QCAT Act. He states that this ground of appeal is separate from his application for a final order in his favour made under s 48,[115] which is discussed at [7]-[12], above. The applicant submits that the Tribunal could and should have made such a finding on its own initiative, ‘if it’s becoming blatantly obvious that the tribunal is being misled’.[116] However, it is not apparent from the material referred to by the applicant that it was ‘blatantly obvious’. Also, the matters complained of were incidental to the primary considerations in this case and, as noted in relation to the application for a final order discussed above, the consequence of the making of an order under s 48(2)(b)(i) of the QCAT Act is a relevant consideration in determining whether the order should be made. This ground of appeal also is rejected.

Ground (z)

  1. [77]
    Ground (z) of the appeal is that the Tribunal erred in making a final decision when an interlocutory matter is on appeal. The applicant refers to the application for miscellaneous matters filed on 17 May 2019.[117] As indicated at [3], above, that application sought directions from the Tribunal that Inspector Smith and Inspector Guild of the Queensland Police Service appear before the Tribunal and explain why they failed to appear at the hearing on 16 April 2019, and, further, that they now be directed to appear and give evidence in the matter and also produce certain documents to the Tribunal. The application was refused by the Tribunal on 12 June 2019 and the refusal decision is the subject of the other appeal in this matter, APL153-19.
  2. [78]
    The applicant states that immediately after the refusal he advised the Tribunal that he would be appealing the decision and asked that the matter in GAR048-19 not proceed to final determination.[118] It is submitted that, in those circumstances, a final decision in GAR048-19 should not have been made.[119] In oral submissions, the applicant submitted that if the appeal were successful and the matter referred back to the Tribunal Member it would be a waste of resources, that it would impact any award of costs, and that it is unfair to the applicant when an appeal had been properly lodged.[120]
  1. [79]
    As is noted above, it has been concluded that leave to appeal in APL153-19 should be refused. Ultimately, there was no prejudice to the applicant in matter GAR048-19 proceeding to final determination. If anything, deferring that decision until the determination of the appeal in relation to the interlocutory decision would have resulted in separate appeal hearings and would have protracted the finalisation of matters before the Tribunal. This ground of appeal also is rejected.

Ground (aa)

  1. [80]
    In his written submissions the applicant raises an additional ground of appeal, perceived bias.[121] This is in addition to ground (e) of the appeal. It is submitted that the Tribunal Member appears to have ‘acted with favouritism’ towards the respondent and at times to have ‘acted aggressively’ against the applicant.[122] It is said that at times he was ‘aggressively questioned’ by the Member, while he allowed the respondent to make hearsay submissions. As to the latter, the Tribunal is not bound by the rules of evidence.[123]  It is also stated that the Member accused the applicant of non-compliance with Tribunal directions in relation to service.[124] The passages in the transcript referred to by the applicant appear to reflect the sort of discourse that might arise in any hearing and included an invitation to the respondent to reply to the accusation made by the respondent as to delayed service of materials.[125]
  2. [81]
    As with ground (e) of the appeal, there is no substantial basis for contending that the Member might not have brought an independent and impartial mind to the determination of the matter. This ground of appeal also is rejected.

Conclusions

  1. [82]
    The orders are as follows:
    1. (1)
      The application filed on 17 August 2020 to make a final order in favour of the applicant is refused.
    2. (2)
      In relation to appeal APL153-19, leave to appeal is refused.
    3. (3)
      In relation to appeal APL241-19:
      1. leave to appeal on ground (r) of the appeal is refused;
      1. the appeal is otherwise dismissed.

Footnotes

[1]Powell v Queensland Police Service [2019] QCAT 418, [2]-[3].

[2]Powell v Queensland Police Service [2019] QCAT 418.

[3]Ibid, [15].

[4]Ibid, [16].

[5]Applicants response filed 6 October 2020. It is not clear why this was not framed as an appeal ground in APL241-19: see the related appeal ground (y) in that appeal, at [75]-[76], below.

[6]Ibid, [7]-[18].

[7]Ibid, [19]-[34].

[8]Ibid, [35]-[57].

[9]Ibid, [7]-[10].

[10]Ibid, [13]-[18], [43]-[44].

[11]Ibid, [10]-[12]; Powell v Queensland Police Service [2019] QCAT 418, [88]-[89]. It is also submitted that there were other attempts to mislead the Tribunal. First in seeking an extension of time the respondent wrongly stated that it was because of non-compliance by the applicant and, second, the respondent wrongly denied that it had been served with an application for miscellaneous matters. However, in both cases it is also acknowledged by the applicant that the error was conceded by the respondent: Applicants response filed 6 October 2020, [42], [46]-[47].  

[12]Powell v Queensland Police Service [2019] QCAT 418, [92].

[13]Ibid, [91].

[14]Ibid, [122].

[15]Ibid, [123].

[16]Ibid, [119].

[17]Ibid, [16].

[18]See QCAT Act, s 142(3)(a)(ii).

[19]Ibid, s 147(2).

[20][2016] QCATA 197, [8]; Department of Child Safety, Youth and Women v PJC and the Public Guardian [2019] QCATA 109, [14].

[21]Transcript 12 June 2019, 1-3, L 22-37.

[22]Ibid, 1-3, L 39 to 1-4, L 1. See also Powell v Queensland Police Service [2019] QCAT 418, [12]-[16].

[23]Ibid, 1-4, L 1-19.

[24]Powell v Queensland Police Service [2019] QCAT 418, [14], [16].

[25]Transcript 12 June 2019, 1-4, L 1 to 1-5, L 2.

[26]Ibid, 1-4, L 27-38.

[27]Transcript 12 June 2019, 1-4, L 27 to 1-6, L 5.

[28]Ibid, 1-5, L 24-28.

[29]Powell v Queensland Police Service [2019] QCAT 418, [2]-[3].

[30]Ibid, [19]-[25].

[31]Ibid [24].

[32]Ibid, [27]-[31],

[33]Transcript 7 June 2019, 1-2, L 15-23.

[34]Ibid, 1-17 ff.

[35]Ibid, 1-18, L 32-40.

[36]Ibid, 1-19, L 1-14.

[37]Transcript 12 June 2019, 1-19, L 22 to 1-22, L 22.

[38]Ibid, 1-22, L 28 to 1-23, L 3.

[39]Where leave to appeal is required, see [15], above.

[40]Applicant’s outline of argument 17 January 2020, [4].

[41]Transcript 9 December 2021, 1-54 L 18-34.

[42]Ibid, 1-54 L 29-30, L 41-44; 1-70 L 21-26.

[43]See, for example, Kioa v West (1985) 159 CLR 550, 584-585 per Mason J.

[44](1998) 194 CLR 355, [93] per McHugh, Gummow, Kirby and Hayne JJ.

[45]See, for example, [9], below.

[46]Transcript 16 April 2019, 1-8 L 14-47.

[47]Applicant’s outline of argument 17 January 2020, [9].

[48]Ibid, [11]-[12].

[49]Reference is made to an email from the respondent of 22 March 2019: see Applicant’s Appeal Book, 359.

[50]Transcript 16 April 2019, 1-26 L 14-47.

[51]Applicant’s outline of argument 17 January 2020, [12].

[52]Transcript 16 April 2019, 1-26 L 39-47.

[53]Ibid, 1-26, L 1-37.

[54]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[55]Ibid, [7].

[56]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [19].

[57]Ibid, [22].

[58]Applicant’s outline of argument 17 January 2020, [13]; Transcript 16 April 2019, 1-13 L 13-16.

[59]Transcript 16 April 2019, 1-11 L 27 to 1-13 L 11.

[60]Powell v Queensland Police Service [2019] QCAT 418, [10].

[61]In relation to disclosure of the medical condition on public forums, compare the submissions of the applicant at Transcript 9 December 2021, 1-61 L 33-44.

[62]Transcript 9 December 2021, 1-61 L 46 to 1-62 L 11.

[63]Ibid, 1-88 L 27-29, 1-92 L 19-25.

[64]Ibid, 1-93 L 16-21; 1-97 L 33-35.

[65]See Powell v Queensland Police Service [2019] QCAT 418.

[66]This was acknowledged by the applicant: Transcript 9 December 2021, 1-64 L 36-37.

[67]Powell v Queensland Police Service [2019] QCAT 418, [60].

[68]Transcript 9 December 2021, 1-63 L 18 to 1-64 L 34.

[69]Ibid, [61]-[62].

[70]Ibid, [119].

[71]Ibid, [121]-[136].

[72]Garlach v Clifton Bricks Pty Limited (2002) 209 CLR 478, [7] per Gaudron, McHugh and Hayne JJ.

[73]See Powell v Queensland Police Service [2019] QCAT 418, [64].

[74]Transcript 9 December 2021, 1-67 L 17-19.

[75]Ibid, 1-66 L 35-38; Applicant’s outline of argument 17 January 2020, [25].

[76]See Powell v Queensland Police Service [2019] QCAT 418, [70].

[77]Applicant’s outline of argument 17 January 2020, [26].

[78]Transcript 9 December 2021, 1-67 L 34-37.

[79][2009] HCA 39, [25], per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. See also SZNBX & Ors v Minister for Immigration and Border Protection & Anor [2018] FCCA 445, [129]-[130] and cases cited therein.

[80]Applicant’s outline of argument 17 January 2020, [27], [31].

[81]Transcript 9 December 2021, 1-70 L 24-26. See also, above, fn. 42.

[82]Applicant’s outline of argument 17 January 2020, [32].

[83]Ibid, [33]-[41].

[84](1938) 60 CLR 336.

[85]Applicant’s outline of argument 17 January 2020, [37], [39].

[86][2021] QCATA 6.

[87]Applicant’s outline of argument 17 January 2020, [42]; Transcript 9 December 2021, 1-72 L 45 to 1-73 L 10.

[88]In relation to this evidence, see Transcript 9 December 2021, 1-73 L 17 to 1-78 L 43.

[89]Applicant’s outline of argument 17 January 2020, [43]. See also at [30].

[90]See, for example, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [46]; Pham v Legal Services Commissioner [2015] VSC 671, [49].

[91]Powell v Queensland Police Service [2019] QCAT 418, [123].

[92]Ibid, [124].

[93]Applicant’s outline of argument 17 January 2020, [44].

[94]Applicant’s outline of argument 17 January 2020, [45]-[46].

[95]Powell v Queensland Police Service [2019] QCAT 418, [119](e).

[96]Ibid, [123], [135].

[97]Ibid, [63](c), [86].

[98]Ibid, [88]-[89].

[99]Ibid, [68]. See also Transcript 9 December 2021, 1-81 L 33-47.

[100]Applicant’s outline of argument 17 January 2020, [47].

[101]Powell v Queensland Police Service [2019] QCAT 418, [125].

[102]Applicant’s submissions to be granted an extension of time, 4 February 2019, [4].

[103]Applicant’s submissions 8 April 2019, [8].

[104]Transcript 9 December 2021, 1-83 L 22-23. In the applicant’s written submissions, reference is also made to the applicant’s traffic and criminal history that arose prior to the earlier renewal of the applicant’s licence, so that no weight should be accorded to it: Applicant’s outline of argument 17 January 2020, [51]-[52]. It is noted that the issue of traffic offences is the 12th of 12 ‘negative considerations’ referred to in the reasons and it is evident that it would not have altered the final decision: see Powell v Queensland Police Service [2019] QCAT 418, [119].

[105]Applicant’s outline of argument 17 January 2020, [48].

[106]Powell v Queensland Police Service [2019] QCAT 418, [36].

[107]Applicant’s outline of argument 17 January 2020, [48]-[49].

[108]Applicant’s outline of argument 17 January 2020, [49]. See also Powell v Queensland Police Service [2019] QCAT 418, [40](g).

[109]Applicant’s outline of argument 17 January 2020, [54].

[110](2003) 236 FCR 593, [46].

[111][2017] QCA 220 at [91]. See also Sunshine Coast Hospital and Health Service v Webb [2020] QCA 189, [83]-[86].

[112](2017) 91 ALJR 698; [2017] HCA 25 at [37].

[113]Applicant’s outline of argument 17 January 2020, [55]-[59].

[114]See grounds of appeal (e), (o) and (s).

[115]Transcript 9 December 2021, 1-84 L 11-13.

[116]Ibid, 1-84 L 11-22.

[117]Applicant’s outline of argument 17 January 2020, [60].

[118]Ibid.

[119]Applicant’s outline of argument 17 January 2020, [62].

[120]Transcript 9 December 2021, 1-86 L 17-42.

[121]Applicant’s outline of argument 17 January 2020, [65]-[69].

[122]Ibid, [65].

[123]QCAT Act, s 28(3)(b).

[124]Applicant’s outline of argument 17 January 2020, [67].

[125]See Transcript 7 June 2019, 1-26 L 24.

Close

Editorial Notes

  • Published Case Name:

    Powell v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Powell v Queensland Police Service – Weapons Licensing

  • MNC:

    [2022] QCATA 81

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson

  • Date:

    09 May 2022

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QCATA 8109 May 2022-
Notice of Appeal FiledFile Number: CA6832/2210 Jun 2022-
QCA Interlocutory Judgment[2022] QCA 25715 Dec 2022-
Appeal Discontinued (QCA)File Number: CA6832/2220 Jan 2023-

Appeal Status

Appeal Discontinued (QCA)

Cases Cited

Case NameFull CitationFrequency
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
3 citations
Jump To
Cite 1 - (2003) 236 FCR 593
Cite 2 - (2003) 236 FCR 593
Cite 3 - (2003) 236 FCR 593
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Department of Child Safety, Youth and Women v PJC [2019] QCATA 109
2 citations
Jump To
Cite 1 - [2019] QCATA 109
Cite 2 - [2019] QCATA 109
Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6
2 citations
Jump To
Cite 1 - [2021] QCATA 6
Cite 2 - [2021] QCATA 6
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
3 citations
Jump To
Cite 1 - (2000) 205 CLR 337
Cite 2 - (2000) 205 CLR 337
Cite 3 - (2000) 205 CLR 337
GAX v The Queen [2017] HCA 25
2 citations
Jump To
Cite 1 - [2017] HCA 25
Cite 2 - [2017] HCA 25
GAX v The Queen (2017) 91 ALJR 698
2 citations
Jump To
Cite 1 - (2017) 91 ALJR 698
Cite 2 - (2017) 91 ALJR 698
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
2 citations
Jump To
Cite 1 - (2002) 209 CLR 478
Cite 2 - (2002) 209 CLR 478
Harrison and Anor v Meehan [2016] QCATA 197
2 citations
Jump To
Cite 1 - [2016] QCATA 197
Cite 2 - [2016] QCATA 197
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
2 citations
Jump To
Cite 1 - [2009] HCA 39
Cite 2 - [2009] HCA 39
Pham v Legal Services Commissioner [2015] VSC 671
2 citations
Jump To
Cite 1 - [2015] VSC 671
Cite 2 - [2015] VSC 671
Powell v Queensland Police Service [2019] QCAT 418
19 citations
Jump To
Cite 1 - [2019] QCAT 418
Cite 2 - [2019] QCAT 418
Cite 3 - [2019] QCAT 418
Cite 4 - [2019] QCAT 418
Cite 5 - [2019] QCAT 418
Cite 6 - [2019] QCAT 418
Cite 7 - [2019] QCAT 418
Cite 8 - [2019] QCAT 418
Cite 9 - [2019] QCAT 418
Cite 10 - [2019] QCAT 418
Cite 11 - [2019] QCAT 418
Cite 12 - [2019] QCAT 418
Cite 13 - [2019] QCAT 418
Cite 14 - [2019] QCAT 418
Cite 15 - [2019] QCAT 418
Cite 16 - [2019] QCAT 418
Cite 17 - [2019] QCAT 418
Cite 18 - [2019] QCAT 418
Cite 19 - [2019] QCAT 418
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
R v Conn; ex parte Attorney-General [2017] QCA 220
2 citations
Jump To
Cite 1 - [2017] QCA 220
Cite 2 - [2017] QCA 220
Sunshine Coast Hospital and Health Service v Webb [2020] QCA 189
2 citations
Jump To
Cite 1 - [2020] QCA 189
Cite 2 - [2020] QCA 189
SZNBX & Ors v Minister for Immigration & Anor [2018] FCCA 445
2 citations
Jump To
Cite 1 - [2018] FCCA 445
Cite 2 - [2018] FCCA 445

Cases Citing

Case NameFull CitationFrequency
Powell v Queensland Police Service - Weapons Licensing Branch [2022] QCA 2571 citation
1

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