Starr v Queensland Police Service – Weapons Licensing
[2024] QCATA 125
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- Unreported Judgment
- Starr v Queensland Police Service – Weapons Licensing[2024] QCATA 125
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Starr v Queensland Police Service – Weapons Licensing[2024] QCATA 125
Starr v Queensland Police Service – Weapons Licensing[2024] QCATA 125
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Starr v Queensland Police Service – Weapons Licensing [2024] QCATA 125 |
PARTIES: | WAYNE MATTHEW STARR (applicant/appellant) v Queensland police service – weapons licensing (respondent) |
APPLICATION NO/S: | APL367-23 |
ORIGINATING APPLICATION NO/S: | GAR494-23 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 15 November 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to review a decision filed out of time – where application to extend time – where application refused at first instance – where that decision appealed – where alleged error on part of Tribunal – whether leave to appeal or appeal should be allowed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21, s 33, s 38, s 61, s 142, s 224, s 241, s 277A Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 7, r 24 Berry v Treasure & Anor [2021] QCATA 61 Burke v Commissioner of Police [2019] QCA 158 Charisteas v Charisteas (2021) 273 CLR 289 CNY17 v Minister for Immigration and Border Protection & Anor (2019) 268 CLR 76 Duke Building Pty Ltd v Queensland Building and Construction Commission & Ors [2015] QCAT 397 Eco-Builder Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 59 Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70 Pickering v McArthur [2005] QCA 294 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 214 CLR 1 Rowe v Stoltze (2013) 45 WAR 116 Starr v Queensland Police Service – Weapons Licensing, unreported, Member Cranwell, GAR494-23, 4 October 2023 Weiss v Jubi Pty Ltd [2019] QCATA 75 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]On 31 January 2023, the respondent revoked the applicant’s firearms licence. The applicant’s application to review that decision was filed in the Tribunal out of time and the Tribunal at first instance refused an application to extend the time allowed. This is an appeal from that decision.
- [2]The applicant says that he received notice of the revocation on 8 February 2023. On 25 May 2023, he filed in the Tribunal his review application; that is, 106 days after receipt of the notice. Section 33(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that an application to review a decision must be filed in the Tribunal within 28 days after the day the applicant is notified of the decision.
- [3]In the decision at first instance, it was held that the delay in filing the application for review was ‘substantial’ and that the appellant had not provided a reasonable explanation for the delay.
- [4]Given that the decision of the Tribunal in refusing an extension of time was not a ‘final decision’ in the proceeding,[1] leave to appeal is required.[2] Generally, leave will be granted only where it is necessary to correct a substantial injustice to the applicant or there is a question of general importance upon which further argument and a decision of the appellate court or tribunal would be to the public advantage, and where there is a reasonable argument that there is an error to be corrected.[3]
- [5]
- [97]The principles applicable in an appeal against the exercise of a judicial discretion have been recognised in many cases.
- [98]It is sufficient for present purposes to say that in an appeal against the exercise of a discretion an appellate Tribunal does not simply substitute the view that it would have taken if it had been in the place of the primary Tribunal. It will not interfere unless it reaches a clear conclusion that there has been some error of fact or law, and that the discretion has not been properly exercised. It is usually necessary to show that the primary Tribunal has acted on a wrong principle, or has been guided by extraneous or irrelevant matters; or mistaken the facts, or failed to take into account some material consideration, or that some error must be inferred because of the result is plainly unjust or unreasonable.
- [6]The applicant lists the following grounds of appeal:
- Denial of procedural fairness.
- Failure to take account of relevant considerations.
- Apprehended bias.
- Application of the incorrect legal test as to what constitutes ‘substantial delay’.
Ground 1 – Procedural Fairness
- [7]In relation to the issue of procedural fairness, as noted by Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam:[6]
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
- [8]The applicant submits that he was denied procedural fairness in that he was not consulted in relation to the decision to give the respondent a two-week extension of time to file submissions concerning his application for an extension of time. It is further said that the respondent did not apply for an extension of time. The applicant does not say why an extension of time should not have been granted or how he was adversely impacted, other than submitting that he lost an opportunity to seek an order that the matter progress directly to hearing on his extension request.
- [9]In relation to a decision to grant a party an extension of time to file submissions, s 61(4) of the QCAT Act provides that the Tribunal may take that step on the application of a party or on its own initiative. In the present case, there is nothing to suggest that the decision allowing extra time for the filing of submissions impacted the rights of the applicant in a practical sense. A primary reason for the decision to refuse the applicant’s application for an extension of time was the lack of a reasonable explanation for the lengthy delay in filing the review application, which reflected upon the material and submissions filed by the applicant, rather than what might have been said by the respondent.
- [10]The granting of an extension of time facilitated the filing of submissions by a party to the proceedings. In that context, any submissions on the part of the respondent are potentially of assistance to the Tribunal, given s 21 of the QCAT Act and the duty it imposes on the respondent, as a decision-maker, to help the Tribunal in its decision-making processes. In that sense, the respondent is not acting in an adversarial role.
- [11]The first ground of appeal is rejected.
Ground 2 – Failure to Consider Relevant Considerations
- [12]The second ground of appeal rests on a submission that the applicant wrote to the Tribunal on 13 February 2023, within the 28-day period allowed for the filing of a review application, and that this communication should have been accepted as his review application. In that context, it is submitted that due consideration was not given to what are said to be the ‘contradictory’ provisions as to the required form of a review application under s 33(2) of the QCAT Act and rule 7(1)(a) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘the Rules’). Further, by reference to the Act and Rules, it is submitted that the letter of 13 February 2023 was in a form ‘substantially complying’ with the Rules.
- [13]Section 33(2) of the QCAT Act provides that the application must:
- be in a form substantially complying with the rules; and
- state the reasons for the application; and
- be filed in the registry.
- [14]The rule-making power is set out at s 224 of the QCAT Act and includes, at s 4 of Schedule 2 of the Act, the making of rules in relation to applications to the Tribunal, including the form of the application or referral and the way applications are to be made. In that context, rule 7(1) of the rules provides:
An application to the tribunal to deal with a matter must be made—
- in the approved form; or
- if the application is filed electronically under rule 24 and a practice direction prescribes the form to be used—in that form; or
- otherwise—in the way stated in rule 10.
Note—
Under section 33 of the Act, the application must state the reasons for the application and be filed.
- [15]The term ‘approved form’ is defined in the Rules to mean a form approved under s 241 or s 277A of the QCAT Act. Relevant to the present case, the process undertaken for the approval of Form 23 is set out in Eco-Builder Pty Ltd v Queensland Building and Construction Commission.[7]
- [16]In relation to rule 7(1)(c), rule 10 deals with applications where, unlike in the present case, there is no approved form. In relation to electronic filing under rules 7(1)(b) and 24, Practice Direction 1 of 2016 prescribes the same form, Form 23.
- [17]There is no contradiction between s 33(2) of the QCAT Act and the applicable rule. Section 33(2) simply provides that the application must be in a form ‘substantially complying’ with the rules, while the rules set out the required form.
- [18]The question then is what is meant by the term ‘substantially complying’. It is not defined in the Act. It is well settled that the starting point for the interpretation of a statutory provision is to consider the text, context and purpose of the provision.[8] The rationale for the use of approved forms is to ensure that all relevant information is encapsulated in the application and to facilitate its ready processing. Applications are processed in the Tribunal Registry by staff who are not legally trained and who process a great number of applications, dealing with diverse matters, every day. They should not be expected to interpret what is said in a letter and then cross-reference it with the approved form to ensure that every required detail has been provided. At the very least, such a process would be extremely time consuming.
- [19]
The authorities discussed above do not support the proposition that a putative application may “substantially comply” with a requirement to use an approved form where a person has not used any version of the approved form, whether current or not.
- [20]The Tribunal in that case left open the question of whether the use of no form at all could conceivably amount to substantial compliance. However, even if that were possible, the letter of 13 February 2023 was not in a form ‘substantially complying’ with the rules; specifically, it was not substantially in accordance with what is required by Form 23. Important contact details, such as a phone number and email address, were not included and it was not made clear what was sought from the Tribunal, other than a reference to the applicant’s rights being violated and his holding the Police Service responsible for the financial damage caused to him. Also, the format and sequencing of the letter is quite different from the prescribed form, which raises the issue of the burden that would be imposed on Registry staff in assessing information provided in a letter and determining whether it is consistent with the requirements of the prescribed Form. Further, the prescribed fee was not paid. Form 23 makes it clear that applications must be accompanied by the prescribed application fee. In relation to fees, see also s 38 of the QCAT Act.
- [21]In addition, the Tribunal wrote to the applicant on 2 March 2023 advising him that his application could not be accepted because of the absence of an initiating application and enclosed a copy of Form 23. In that communication it was also noted that the Registry had been unable to contact him by phone or email, which detail, as noted above, was not included in his letter of 13 February 2023. Despite that communication, a valid review application was not filed until 25 May 2023.
- [22]The second ground of appeal is rejected.
Ground 3 – Apprehended Bias
- [23]The third ground of appeal is apprehended bias. The submissions in relation to this ground rest on the same circumstances as outlined in relation to ground 1; that is, the granting of an extension of time to the respondent to file submissions. The applicant contrasts this with the decision to refuse him an extension of time to file his review application.
- [24]In relation to what constitutes apprehended bias, as stated by Kiefel CJ and Gageler J in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[11]
The criterion is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The “double might” serves to emphasise that the criterion is concerned with “possibility (real and not remote), not probability.
- [25]
Establishment of an apprehension of bias on the part of the Authority then requires the taking of two essential steps: first, identification of the factor which it is postulated might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits; and, second, articulation of how that factor might have led the Authority to have decided the review otherwise than on an independent and impartial evaluation of the merits. Taking those two steps is necessary to provide the foundation for the third and critical step in the application of the bias rule. That is the step of assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred. In taking that third step, "it is the court's view of the public's view, not the court's own view, which is determinative".
- [26]
- [56]… A finding of apprehended bias is not to be reached lightly. The determination of whether an apprehension of bias is "reasonable" is not assisted by philosophical conceptions of the varieties of seriousness or materiality.
…
- [58]… The fair-minded lay observer knows the nature of the decision, the circumstances which led to the decision and the context in which it was made. The fair-minded lay observer has "a broad knowledge of the material objective facts ... as distinct from a detailed knowledge of the law or knowledge of the character or ability of the [decision-maker]".
- [27]The alleged bias in the present case is drawn from what is said to be conflicting or inconsistent decisions of the Tribunal Member. Nothing else is pointed to that is said to have led the Tribunal at first instance to decide the review other than on an independent and impartial evaluation of the application for an extension of time.
- [28]The stark difference between the two decisions referred to is evident from the discussion above. The granting of an extension of time to the respondent to file submissions facilitated a proper consideration of the substantive issue to be determined; that is, whether an extension of time should be granted to file the review application. As noted above, that should also be considered in the context of the duty of the decision-maker to assist the Tribunal.
- [29]In relation to the decision to refuse the extension of time, as noted at [5] above, and quite separately from the four specific grounds of appeal, an appellate Tribunal will not interfere with the exercise of a discretion unless it reaches a clear conclusion that there has been some error of fact or law, and that the discretion has not been properly exercised. The four grounds are being discussed in these reasons. In light of the discussion in relation to grounds one and two of the appeal, there is nothing otherwise to suggest that the exercise of the discretion has miscarried and, relevant to ground three of the appeal, there is nothing to indicate that a fair-minded lay observer might reasonably apprehend that the Tribunal Member might not have brought an impartial mind to the resolution of the question to be decided.
- [30]The third ground of appeal is rejected.
Ground 4 – Substantial Delay
- [31]The fourth ground of appeal is that the Tribunal at first instance applied the wrong legal test as to what constitutes ‘substantial delay’. In the reasons of the Tribunal at first instance it is simply stated that in the context of a 28-day time limit, the delay in the present case was ‘a very substantial delay’.[15]
- [32]The applicant refers to two earlier decisions of this Tribunal. In Duke Building Pty Ltd v Queensland Building and Construction Commission & Ors,[16] reference was made to a ‘substantial delay’ of some two years and five months in making a complaint to the Commission, while in Weiss v Jubi Pty Ltd,[17] what appears to have been a delay of a matter of days was considered to be ‘not a very significant’ delay. The precise number of days is not readily apparent from the reasons for the decision.
- [33]In any event, the term ‘substantial delay’ is not a term of art. The length of any delay is a factor to be considered in the context of the full circumstances of any given case. The context in the present case includes a finding that no reasonable explanation was provided for the delay and, as noted at [21] above, despite the Tribunal prompting the applicant on 2 March 2023 to file the required application form, it was not filed until 25 May 2023. In the decision at first instance, the Tribunal Member also referred to the interests of justice and stated:[18]
The interests of justice do not favour an extension. As Thomas J noted in Coppens, finality in litigation is highly desirable. The Tribunal’s obligation under s 3(b) of the QCAT Act to deal with matters, fairly, economically and quickly would not be achieved by allowing Mr Starr to file this application after a non-trivial delay.
- [34]Ground four of the appeal is rejected. The appeal is dismissed.
Footnotes
[1] See Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70, [3]-[8] (‘Harper Property Builders Pty Ltd v QBCC’).
[2] QCAT Act, s 142(3)(a)(ii).
[3] Pickering v McArthur [2005] QCA 294; Burke v Commissioner of Police [2019] QCA 158, [10]-[11]; Berry v Treasure & Anor [2021] QCATA 61, [13].
[4] The decision involves an exercise of discretion by virtue of s 61(1)(a) of the QCAT Act.
[5] (n 1) [97]-[98] (citations omitted).
[6] (2003) 214 CLR 1, [37]. See also Rowe v Stoltze (2013) 45 WAR 116, [51].
[7] [2018] QCAT 59, [30]-[34] (‘Eco-Builder Pty Ltd v QBCC’).
[8] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, [78] per McHugh. Gummow, Kirby and Hayne JJ.
[9] (n 7).
[10] Ibid, [50].
[11] (2023) 97 ALJR 419, [37] (citations omitted).
[12] (2019) 268 CLR 76.
[13] Ibid, [21] (citations omitted). See also Charisteas v Charisteas (2021) 273 CLR 289, [11].
[14] Ibid, [56], [58] (citations omitted).
[15] Starr v Queensland Police Service – Weapons Licensing, unreported, Member Cranwell, GAR494-23, 4 October 2023, [16] (‘Starr v QPS – Weapons Licensing, GAR494-23 unreported decision’).
[16] [2015] QCAT 397, [10].
[17] [2019] QCATA 75, [22].
[18] Starr v QPS – Weapons Licensing, GAR494-23 unreported decision (n 15), [19] (citations omitted).