CAT v Queensland Police Service - [2017] QCATA 43

CITATION:

CAT v Queensland Police Service [2017] QCATA 43

PARTIES:	CAT (Applicant/Appellant)
v
Queensland Police Service (Respondent)

APPLICATION NUMBER:

APL302-15

MATTER TYPE:

Appeals

HEARING DATE:

21 March 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member J Allen

DELIVERED ON:

11 April 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The appeal is allowed.

2. The decision of the Tribunal dated 12 June 2015 is set aside.

3. The matter is remitted to the Tribunal for reconsideration according to law and in accordance with these reasons.

4. Publication is prohibited of evidence given before the Tribunal in this proceeding and in GAR205-14 which may identify the Applicant’s spouse.

5. These reasons, and any reasons in GAR205-14, including any further reasons, may be published only in a de-identified format.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSES AND RELATED MATTERS – where licensee failed to hold weapons in secure storage – where licensee gave undertaking not to possess or acquire weapons in context of an application for a temporary protection order – where licensee assisted unlicensed persons to use his weapons – whether licensee is a fit and proper person to hold a weapons license

Australian Broadcasting Tribunal v Bond v Bond (1990) 94 ALR 11
CAT v Queensland Police Service, Weapons Licensing Branch [2015] QCAT 264
Hughes and Vale Pty Ltd v NSW (No 2) (Transport Case) (1955) 93 CLR 127
Magarry v Queensland Police Service Weapons Licensing Branch [2012] QCAT 378
Smith v Commissioner of Police NSW and Ors [2014] NSWCATAD 184
Stower v Smart [2007] QDC 004.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(1), s 142(3)(b) s 147(1),
s 147(2), s 147(3)
Weapons Act 1990 (Qld) s 3(1)(a), a 3(1)(b),
s 3(2), s 10(2)(b), s 10(2)(c), s 10(2)(e), s 10B(1), s 10B(2)(a)(ii), s 10B(2)(b), s 24(2)(b)(i),
s 29(1)(d), s 49A(1), s 50(1), s 50A(1), s 52(1),
s 53(2), s 53, s 142(1), s 142(3)(b), s 155(1)(a), Schedule 2

APPLICANT:

Mr M. White of Counsel instructed by Butler McDermott Lawyers

RESPONDENT:

Mr M. Nicolson of Counsel instructed by the Public Safety Business Agency

REASONS FOR DECISION

What is this appeal about?

CAT was the holder of a weapons licence which was revoked by the Queensland Police Service (QPS) on 22 May 2014. CAT applied to the Tribunal to review that decision. The Tribunal confirmed the original decision. CAT has appealed the Tribunal’s decision.

The statutory framework – the Weapons Act 1990 (Qld) (“the WA”)

The object of the WA is to prevent the misuse of weapons.[1] Two principles underlay the WA. The first is that weapon possession and use are subordinate to the need to ensure public and individual safety.[2] The second is that 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.[3]
[1]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QCATA 43
Decision Date: 11 April 2017

CaseChat Overview and Summary

The case between the Civil and Administrative Tribunal (CAT) and the Queensland Police Service was heard and determined by the Queensland Court of Appeal. The central issue revolved around the fitness of an individual to hold a firearms licence. The licensee had failed to store his weapons securely, provided an undertaking to not possess or acquire weapons in relation to an application for a temporary protection order, and assisted unlicensed persons in using his weapons. The Tribunal had concluded that the licensee was not a fit and proper person to hold a firearms licence, a decision which was appealed.

The appeal presented several legal issues, primarily concerning the correctness of the Tribunal’s decision. The core question was whether the Tribunal had erred in law by concluding that the licensee was not fit and proper to hold a firearms licence based on the aforementioned actions and circumstances. The appeal also considered whether the Tribunal had applied the correct legal principles in evaluating the fitness of the licensee. Additionally, the court had to determine if there were any procedural errors that might have influenced the outcome of the Tribunal’s decision.

In its judgment, the Court of Appeal found that the Tribunal had indeed erred in law. The court held that the Tribunal had not properly weighed the evidence and had failed to apply the correct legal principles in assessing the licensee's fitness. The appeal court determined that the Tribunal's conclusion was not supported by the evidence and that there were errors in the application of the relevant statutory provisions. As a result, the appeal was allowed, the Tribunal’s decision was set aside, and the matter was remitted back to the Tribunal for reconsideration in light of these reasons. The Court also made orders prohibiting the publication of certain evidence to protect the privacy of the licensee's spouse and directed that any publication of reasons must be in a de-identified format.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Tribunal dated 12 June 2015 is set aside.

3. The matter is remitted to the Tribunal for reconsideration according to law and in accordance with these reasons.

4. Publication is prohibited of evidence given before the Tribunal in this proceeding and in GAR205-14 which may identify the Applicant’s spouse.

5. These reasons, and any reasons in GAR205-14, including any further reasons, may be published only in a de-identified format.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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