Crowley v Mckay

[1999] QDC 281

DISTRICT COURT OF QUEENSLAND

[Crowley v Mckay]

REGISTRY:     CHARLEVILLE
  APPEAL NUMBER:   6 OF 1999

Appellant:  
  MICHAEL JOHN CROWLEY

AND

Respondent:  
  ROSS ANDREW McKAY

JUDGMENT - McGILL S.C. D.C.J.

Judgment Delivered:  5^th November 1999

Catchwords:  APPEAL AND NEW TRIAL - time for filing Notice of Appeal - appeal from Magistrate on question of law - no time specified - not done as soon as possible - Weapons Act 1990 s.149 - Acts Interpretation Act 1954 s.38(4).

Re Conset Investments Pty Ltd [1993] 1 Qd.R. 244 - followed
Martin v. Commissioner for Employees’ Compensation [1953] St.R. Qd. 85 - followed

FIRE, EXPLOSIVES AND FIREARMS - Weapons Act  - transitional provisions - whether application for new licence or renewal of licence - whether appeal competent - Weapons Act 1990 ss. 10, 18, 149, 174.

Advocate for the Appellant:                 A. Melville

Counsel for the Defendant:                  P.S. Hardcastle

Solicitor for the Appellant:  Crown Solicitor

Solicitors for the Defendant:                 Frank Jongkind & Co 

Hearing Date:  21 October 1999

DISTRICT COURT OF QUEENSLAND

REGISTRY:              CHARLEVILLE

APPEAL NUMBER:             6 OF 1999

Appellant:  
  MICHAEL JOHN CROWLEY

AND

Respondent:  
  ROSS ANDREW McKAY

JUDGMENT - McGILL. D.C.J.

Delivered the 5th day of November 1999

As at 15 January 1997, the respondent was the holder of a licence under the Weapons Act 1990 (“the 1990 Act”) authorising possession of a Schedule 3 firearm. I was told during the hearing that this was known as a “shooters licence”. On that day commenced the Weapons Amendment Act 1996 (“the 1996 Act”), which made substantial amendments to the 1990 Act. It seems that licence would not have expired had the 1996 Act not been passed, but s.174 of the 1990 Act, inserted by the 1996 Act (and amended by Act No 48 of 1997), continued in force that existing licence unless it would otherwise have expired, or was suspended, cancelled or revoked, until 30 September 1997, unless prior to that date he “applies under the new Act for a licence ... and the application is not decided before that day” in which case the existing licence continued until he was advised in writing that the application was approved or rejected: s.174(1)(a).

On 20 September 1997, the respondent lodged a document headed “Application to Renew Firearms Licence” on a form which was headed “Form 6" which I was told had been forwarded to him and all other holders of a shooters licence following the enactment of the 1996 Act. That application was not decided until 19 March 1998, when it was refused. On 1 April 1998, the respondent filed a Notice of Appeal against that decision with the Clerk of the Magistrates Court at Charleville, which application after several adjournments was heard and determined by a Stipendiary Magistrate on 4 December 1998. The appeal was allowed, the decision of the authorised officer was set aside and the respondent’s application to renew his licence was granted. By s.149 of the 1990 Act “a party aggrieved by the decision of the court may appeal to a District Court, but only on a question of law” On 28 June 1999, the appellant, who had been the respondent in the appeal before the Magistrate, filed a Notice of Appeal in the registry at the District Court at Charleville purportedly pursuant to s.149. That appeal came on for hearing before me in Charleville on 21 October 1999. It raises a number of issues.

Competence of The Appeal
Logically, the first point to consider is whether the appeal to this court is competent. It was submitted on behalf of the respondent that the appeal was out of time, not having been filed within 30 days of the date on which the Magistrate gave his decision. Section 149 is the only provision of the 1990 Act which says anything about the appeal to this court and there is nothing in that Act or the regulations to which I was referred which says anything about how such an appeal is to be instituted or when it may be instituted. The respondent’s argument however is that such an appeal was governed by r.291 and r.292 of the Magistrates Court Rules 1960, and that therefore the period of 30 days specified in r.292(2) was the operative limitation.

The argument is that those rules were made under the power contained in s.58 of the Magistrates Court Act 1921 which states that a rule may make provision about any matter which is required or permitted to be prescribed under a jurisdiction law or is necessary or convenient to be prescribed in carrying out or giving effect to a jurisdiction law, and the term “jurisdiction law” is defined by s.58(4) to include “another law giving jurisdiction to Magistrates Courts”, which would include the 1990 Act because the Act in part 6 gives jurisdiction to Magistrates Court to hear appeals such as the appeal in the present case.  In my opinion, the 1990 Act is a “jurisdiction law” for the purposes of s.58, and that section does permit the Governor-in-Council to make rules of court for the 1990 Act.  The question is whether the relevant rules do apply to such an appeal. 
Rule 291 provides in subsection (1):

“Appeals from a Magistrates Court shall be to a District Court as provided for in the District Courts Act 1967 s.111".

Section 111 provides relevantly:

“(1) An appeal shall not lie from a Magistrates Court to the Supreme Court

(2)An appeal shall lie to a District Court in such cases and subject to the same conditions as such an appeal lay to the Supreme Court prior to the coming into operation of the District Courts Act 1958 and a District Court shall have the same powers, authorities and duties as the Supreme Court had in respect of any such appeal or application for leave to appeal.”

That would not, on its face, apply to an appeal under the 1990 Act; there is no suggestion that there was ever an appeal to the Supreme Court from a decision of the 1990 Act.  The position is that prior to the District Courts Act 1958, appeals in civil matters went from the Magistrates Court to the Supreme Court, pursuant to s.11 of the Magistrates Courts Act 1921. That Act has since been renumbered and the corresponding provision now is s.45. Subsection (1) of that section provides for a right of appeal “in an action” or “in proceedings in interpleader” where certain other conditions are met, and subsection (2) gives right of appeal by leave of the District Court where “in any of the cases above referred to in this section the amount is not more than $5,000". There is no more general provision in s.45 giving a right to appeal from any other order which a Magistrate had jurisdiction to make.

There is authority that prior to 1958 the right to appeal to the Supreme Court from a decision of a Magistrate under s.11 was limited to a case where there was “an action” in the technical sense, which did not mean any matter where a dispute which was within the jurisdiction of the Magistrates Court was determined by that court: Martin v. Commissioner for Employees’ Compensation [1953] St R Qd 85. In that case it was held that s.11 of the Magistrates Courts Act 1921 conferred no right of appeal from a decision of a Magistrate under s.20 of the Commonwealth Employees’ Compensation Act 1930-1948 and that because there was no such right of appeal otherwise conferred expressly there was no right of appeal to the Supreme Court. It follows from that decision that, prior to the commencement of the District Courts Act 1958, there was no right to appeal from a decision of a Magistrate to the Supreme Court unless one was given expressly, and s.11, now s.45 of the 1921 Act gave a right of appeal only in respect of actions in the technical sense, or in relation to interpleaders.

The proceedings in the Magistrates Court in this case were neither an action nor a proceeding in interpleader, and therefore there is no appeal under s.45 of the 1921 Act, and therefore no appeal within s.111 of the District Courts Act. In my opinion it follows that r.291(1) does not apply to an appeal under the 1990 Act; it applies to an appeal under s.45 of the Magistrates Courts Act 1921, and this is not such an appeal. The fact that r.291 appears at the beginning of “Part 35 - Appeals” of the Magistrates Courts Rules suggests that that part operates in respect of such appeals, that is appeals under s.45 of the Act. That view is supported by the terms of r.294(3) which says “Appeals shall be by way of rehearing”. Plainly, an appeal under s.149 of the 1990 Act is not an appeal by way of rehearing; it is an appeal on a question of law, and therefore a species of appeal in the strict sense.

In my opinion, for these reasons rules 291 and 292 do not apply to an appeal on a question of law under s.149 of the 1990 Act. The time limit imposed by r.292(2) therefore does not apply. There was at the relevant time, as far as I am aware, no other rule, regulation or statute limiting the time for filing the appeal. Since 1 July 1999 the Uniform Civil Procedure Rules fix a time limit for any appeal, including under s.149 of the 1990 Act of 28 days: Rules 748, 785.

It was submitted on behalf of the appellant that in the absence of some specified time, s.34(4) of the Acts Interpretation Act 1954 applied. This provides:

“If no time is provided or allowed for doing anything, the thing is to be done as soon as possible ...”.

In my opinion, this provision applies in this case: Re Conset Investments Pty Ltd [1993] 1 Qd.R. 244. I accept that this means as soon as reasonably possible, but I think that that is not the same as saying that it must be done within a reasonable time; the latter is a somewhat more generous test in my opinion. The question of whether something is done “as soon as possible” is, I think, a different one from the question which can arise under the Administration Decisions Judicial Review Act where under s.11(4) an application to the court may be made at any time, although the court has a discretion to refuse to entertain the application if it forms the opinion that the application was not made within a reasonable time. In that situation, prima facie, the appeal is valid and is to proceed and the court simply has a discretion to dismiss the application summarily on the ground of excessive delay in filing the application.  Reference was made to authorities concerning a power to extend time, such as Hunter Valley Developments Pty Ltd v. Minister for Home Affairs and Environment (1984) 58 ALR 305, but this is not a question of whether this appellant should be exempt from a general requirement because of some particular combination of circumstances relevant in this case. There is, I think, no jurisdiction to extend whatever time limit applies in view of s.38(4) of the Acts Interpretation Act, and either the Notice of Appeal was filed as soon as reasonably possible, or it was not. 

I was given an explanation for what passed between the time when the Magistrate’s decision was given on 4 December 1998 and the time when the Notice of Appeal was filed.  It seems there was some delay in obtaining both the transcript of the decision, and the full transcript of the proceedings before the Magistrate, and there was also some delay because the police prosecutor at Charleville was away for two months.  Apart from that there is no particular delay, but the various steps that were taken all seem to have taken a few days or a few weeks.  The overall result was that it took upwards of six months from the date of the decision until the Notice of Appeal was filed. 

I think that it is relevant to consider in determining what period of time is “as soon as reasonably possible” the fact that commonly periods of the order of 28 days are allowed within which appeals are to be filed where there is to be an appeal, and to bear in mind that this is an appeal on a question of law only, so that the question of whether or not there has been an appellable error ought to be fairly narrow.  In Re Conset Investments (supra) where a similar point arose under another Act, a Notice of Appeal filed over eight months after the order challenged was held not to have been filed “with all convenient speed”, the expression in what was then s.38(5) of the Act. Further, the basic question which it is alleged is raised by the appeal, whether the respondent’s application was to be dealt with under s.10 or under s.18 of the 1990 Act, is a fairly narrow point. It should have been obvious in the reasons for judgement of the Magistrate that he took the view that the matter had to be treated as an application to renew, although he does not seem to refer expressly to s.18, and rejected the argument that s.10(6) applied to the application. Further, the Magistrate followed his reasons given in an earlier decision, Melano v. Crowley (No. 313/98, Magistrates Court Charleville, 26.6.98, unreported) given some months earlier which had already been considered by the relevant authorities.  I was told that a decision was taken not to appeal in that case, and that no Notice of Appeal in that case has ever been filed.  What happened in the present case, and in some others before me, was that this decision was simply followed and applied.  In these circumstances it seems to me that the point that had to be considered by the appellant was a fairly narrow one, and one which did not obviously require provision of all of the material which was before the Magistrate, none of which was referred to in support of the appellant’s argument before me.

In the light of these considerations I do not think that it can fairly be said that this Notice of Appeal was filed as soon as reasonably possible. The effect of s.38(4) seems to be that once that point of time has passed, it is no longer competent to appeal under s.148. In my opinion, therefore, the appeal is incompetent and should be struck out.

In case I am found elsewhere to be in error about that question however, I will go on to deal with the issues which would arise were I to conclude that the appeal was competent.  The first of these is the respondent’s application for a stay on the ground that the appeal is an abuse of process. 

Application To Stay
If the appeal had been lodged within time, it was submitted that the appeal should be permanently stayed as being oppressive or an abuse of process. I think that this court has always had jurisdiction to stay a proceeding in the court on the ground that the continuation of it would amount to an abuse of process, and that jurisdiction has probably been reinforced and perhaps broadened by the provisions of the Uniform Civil Procedure Rules. I think that there is jurisdiction to make the sort of order sought on behalf of the respondent. The respondent relies on the fact that the earlier decision in Melano (supra) was run first as a test case, after it was decided there were indications that there would be an appeal, but it was after no appeal had been instituted that this matter was heard by the same Magistrate who gave a decision consistent with his decision in Melano. The respondent and his wife, believing his livelihood to be secure, decided to have another child.  After the decision in Melano the respondent purchased a new motor vehicle for use in roo shooting.  It was after more than 6 months that the first indication was given of an intention to appeal. 

On the other hand, the matters raised in the appeal are of some general importance in relation to the administration of the 1990 Act.  Indeed, there were four matters before me in the course of this sittings which all raised the same point, and no doubt the same situation has arisen in many other cases.  I was told that there are no other authorities which deal with this question, and it seems to me that there is some force in the proposition that it is in the public interest for difficulties arising in the interpretation of the 1990 Act, which in its current form is productive of perhaps more than the usual range of difficulty is an interpretation, should be clarified sooner rather than later.  If I were satisfied that the appeal had been properly instituted I would consider that the public interest in having these questions decided outweighed the respondent’s personal interest in not having to litigate the matter so long after the decision in the Magistrates Court which was subject to appeal.  Although there has been, I think, some unnecessary delay in filing the Notice of Appeal, it does not, in my opinion, amount to such a serious misconduct as to justify being categorised as an abuse of process of the court.  If I were of the opinion that the appeal was properly before the court, I would not order that it be permanently stayed. 

It is therefore appropriate for me to consider the question of law raised by the appeal. 

Submissions On Behalf Of The Appellant
It was submitted on behalf of the appellant that the licence held by the respondent prior to the commencement of the 1996 Act, a “shooters licence”, was not one of the classes of licence which existed under the Act as amended, as this is not included in the list in s.12. The effect of s.174 was to continue the validity of the shooters licence, but only until his application for a licence was determined. Because there was no such thing as a “shooters licence” under the Act as amended, it was not possible for the existing licence to be renewed, so all the respondent could do was apply for a new licence of the appropriate class, a “firearms licence”, which being an application for a licence had to be dealt with under s.10 rather than under s.18. Accordingly there was power to issue the licence only if the respondent was a fit and proper person to hold a licence (s.10(2)(e)) and he was properly determined not to be such a person because he fell within subsection (6)(a)(iii), having been convicted within the period of five years prior to the application of an offence against s.60 of the Act. The authorised officer was therefore bound to conclude that he was not a fit and proper person and could not issue a licence to him. It was erroneous to treat the application as being one for renewal.
It appears that this interpretation of the relevant provision is not the one which was initially applied by the authorities responsible for administering the Act.  Apparently holders of shooters licences were sent a letter, a copy of which was tendered before me which said, inter alia:

“The application to renew a firearms licence form applies only to those renewing an existing shooters licence. However, if you require a licence other than a firearms licence as a replacement for your existing shooters licence you should notify the Police Weapons Licencing Branch on the application form and return it in the enclosed self addressed envelope.  Examples of other licences include a collectors licence (including heirlooms) and a blank firearms licence.  Transferring from an existing shooters licence to a different licence by 30 September 1997 is free of charge.  If you currently have a licence other than a shooters licence you will be sent a renewal notice in the near future.”

Plainly the letter assumes that the holder of an existing shooters licence can obtain a firearms licence by a process of renewing, initiated by an application to renew. The form which was forwarded and which was filled in was a form described as “Form 6 - Application to Renew Firearms Licence". Under the 1990 Act by s.13(1)(a), an application for a licence must be made in the approved form and by s.18(2)(a), an application for renewal of a licence must be made in the approved form. The forms are to be approved by the Commissioner of Police under s.171. It appears from the notification published in the Government Gazette on 13 May 1997, p.476, that on 15 January 1997 the Commissioner approved Form 1 as an application for a licence and Form 6 as an application for renewal of licence, although two other versions of Form 6 were also approved, one “commencing” on the same date, and one commencing on 1 April 1997. I propose to pass by the intriguing question of whether the power in s.171 may be exercised retrospectively. Unfortunately, the gazette does not set out the forms so approved, although it does advise that Form 1 may be obtained from any police station and Form 6 from the Weapons Licencing Branch. That is of little assistance to me. However, I think it is clear that Form 6 was the approved form for the purpose of s.18, and the approved form for the purpose of s.13 was Form 1.

It would seem to follow that, if the appellant’s argument is correct, all of the holders of shooters licences who were sufficiently misguided to do as they were told by the relevant authorities failed to comply with a mandatory requirement for the issue of a firearms licence so that there was in each case no application for a licence properly before the authorised officer, so that perhaps the officer had no power to approve the application and hence issue the licence.  It may follow that all of the firearms licences which such officers have purported to issue to holders of shooters licences who did as they were asked are invalid, although I suspect that the use of the approved form is not a pre-requisite to the jurisdiction to issue a licence.  This is not a matter to which I have given detailed consideration.  I merely raise it as a possible consequence if the argument is correct. 

The real difficulty which this case exposes is that the transitional provisions for the 1996 Act are inadequate.  The introduced section 177 of the 1990 Act, which provides that “an application not decided on the commencement is to be decided under the new Act”, is both inapplicable and unclear.  It is inapplicable because it can only apply to an application which had been lodged before the commencement, i.e, 15 January 1997, and that was not the case here.  But even if it were the case, it is unclear what is to be done pursuant to that section with an application to renew a shooters licence which was lodged prior to 15 January 1997 but not decided as at that date.  If the argument for the appellant is right, it cannot be “decided under the new Act” because the new Act does not make provision for a shooters licence, and so a shooters licence cannot be renewed under it.  It would follow that the provision deliberately inserted by way of a transitional provision in s.177 was ineffective where the licence was of a kind which existed under the “former Act” but is not a class of licence under the “new Act”.  Prior to the 1996 Act the 1990 Act did not have a provision formally dividing licences into classes as does s.12 now, although some sections did speak of a particular kind of or function for the licence. 

The difficulty is that the transitional provisions do not accommodate the introduction of classes effected by the 1996 Act, and particularly do not say what the implications are for a licence which continues in force pursuant to s.174. What was really needed was some transitional provision to say what the status was for the purpose of the new Act of a licence issued under the “former Act”. Unfortunately that has not been provided by the legislature, and it is necessary to construe the Act as best I can without the benefit of that assistance.

Some assistance may be obtained from s.18(7) which permits a licence to be renewed by endorsing the existing licence or cancelling the licence and issuing a fresh licence. It may be, of course, that this was intended to do no more than facilitate the replacement of the piece of paper if it were inconvenient to continue to use the existing piece of paper with an endorsement (or perhaps further endorsement), but I think it can also be read as authorising the issue of a fresh licence complying with s.l6. It could hardly have been intended to authorise the issuing of a fresh licence which did not comply with s.16, or to authorise the issue of a fresh licence which did not comply with the new Act. Subsection (7)(b) must authorise the issuing of a fresh licence in accordance with the Act. This provision was in the 1990 Act prior to the 1996 Act, and would then have easily accommodated the issue of a licence subject to different conditions, which at that time defined the use and categories of weapon it authorised: see s.11(1)(b) in Reprint 1. At that time there were no classes of licences.

Consider the case of an application to renew a shooters licence which comes within s.177. It is to be decided under the new Act, that is to say, it must be dealt with under s.18(4), (5), (6) and (7) of the new Act, because those are the provisions of the new Act which deal with an application for renewal. If the authorised officer approves the application, he can “renew” the licence in the manner authorised by subsection (7)(b), that is, by issuing a fresh licence in accordance with the Act. That would have to be a licence in a class specified in s.12, but a firearms licence would satisfy that requirement. A firearms licence is apparently a fairly flexible thing, as appears from regulations 18 to 22. It seems to me that if in that situation the authorised officer approved the application and issued a firearms licence, that would meet the description of “a fresh licence” in subsection (7)(b) and issuing it is therefore by that subsection made the means by which the licence (i.e., the shooters licence) may be “renewed”. A decision to do this is therefore a decision to “renew the licence” for the purpose of subsection (6)(a), and therefore an application requesting that an authorised officer do this is an application for renewal.

It seems to me that the legislature must have contemplated that s.177 would be given effect to in this way, otherwise it does not adequately accommodate the introduction by the 1996 Act of classes of licence. It follows that the legislature must have intended that s.18 could operate so as to enable s.177 to be given effect to in that way, or perhaps more realistically the legislature should be taken to have intended this in order to enable that which was enacted to be given effect to properly and in a workable way. If that proposition is correct, it follows that s.18 is wide enough to permit the “renewal” of a licence which is not in a class of licence under the new Act, but which is a licence which continues in force pursuant to the transitional provisions, by means of the issue of a fresh licence which is in an appropriate class under the new Act.
Such an approach is consistent with the definitions in s.5 of the terms “licensee” and “licence”. The term “licensee” means a person in whose name a licence, in force at the material time, has been issued, and the term “licence” means a licence continued, issued or renewed under this Act, and in force at the material time. Accordingly, a shooter’s licence which is continued in force under s.174 is a “licence” for the purposes of s.5 and was in force at the time the application for renewal was made. The respondent was therefore a “licensee” for the purposes of s.5. On the face of it therefore, under s.18(1), the respondent may apply for the renewal of the shooters licence within a period of 46 days starting 60 days before the day the licence expires. Plainly the time limitation is inconsistent with s.174 and must be overcome by it; s.174(1)(a) clearly contemplates that in a situation such as this an application can be made at any time prior to the end of the amnesty period whereupon the day on which the licence expires becomes unascertained. Apart from any question about whether the application was made at the proper time, on the face of it the respondent could comply with s.18(1). Presumably he complied with subsection (2), so it was open to the authorised officer to approve the application and renew the licence in the manner contemplated by subsection (7)(b), that is by issuing a fresh licence, which fresh licence would be in accordance with the new Act.

In my opinion this is the preferable construction of the legislation. It is consistent with the literal wording and gives effect to the manifest intent of such transitional provisions as were included.  It follows that the construction advanced on behalf of the appellant is, in my opinion, wrong, and that the Magistrate was right to conclude that the application before the authorised officer was an application to renew and was right to deal with it as an application to renew.  Had I been considering the appeal on its merits, I would have dismissed it.

I should also mention one possible difficulty which arises from the terms of s.174. Paragraph (a) of subsection (1) speaks of the situation which applies when the holder of an existing licence “applies under the new Act for a licence”. It can hardly have been the intention of the legislature in framing that paragraph to distinguish between a situation where there is an application for a new licence under the Act, and an application for renewal. Plainly, the paragraph only applies to the holder of an existing licence, and it was conceded on behalf of the appellant that in respect of those classes of licence which were the same as kinds of licences referred to in the 1990 Act before the commencement of the 1996 Act, the licence under the former Act could be renewed under the new Act. If this is so, and it seems correct, it would be an odd result if the holder of a licence which could be renewed had that licence extended if he applied for a different licence under the new Act, but did not have the licence extended if he applied to renew his existing licence.

Plainly, the intention of s.174 was to truncate existing licences so as to effect a change from the old licencing system to the new licencing system more rapidly than would occur if the old licences were simply allowed to expire in accordance with their terms, which some of them would not do (see s.14(1)(b) Reprint 1), but to give the opportunity to holders of existing licences to make appropriate application so as to be dealt with in an appropriate way under the new Act (to use a neutral impression) and to preserve their capacity to use weapons while that was being processed. It would, I think, frustrate that general objective if para. (a) were interpreted in a way which distinguished between an application for a new licence under s.10 and an application for renewal under s.18, and in my opinion, the words “applies under the new Act for a licence” covers either application.

I was referred on behalf of the appellant to the Explanatory Notes for what is now s.174 in the 1996 Bill and the 1997 Bill. These confirm the impression that was set out earlier as the purpose of s.174, which I derived from its terms. They also, I think, support my suspicion that the legislature appears not to have turned its mind to the difficulty produced by the introduction of classes of licences by the 1996 Act, or even to the difference between applying to renew an existing licence and applying for a new licence. The third paragraph to the explanatory note for clause 47 of the 1997 Bill speaks of a “decision to either renew the licence or reject the application” as being made in response to “an application for a new licence” which I think confirms a failure to appreciate the distinction between an application for a new licence and an application for renewal. In these circumstances, as I have said, the court has to do the best it can with what Parliament has enacted, and try to give effect to it in a way which is consistent with the stated principles and object of the Act, and the obvious intention of the legislature that the Act should be workable and operate in a practical and sensible fashion. For example, a construction which would leave gaps in the legislation is where possible to be avoided.

It followed that the conviction, assuming that it fell within s.10(6)(a)(iii), was not an absolute bar to the grant of the licence, as it would have been if the application had to satisfy s.10, but plainly that conviction was a matter which the authorised officer could consider and take into account pursuant to s.18(5) when deciding whether to approve or reject the application. That, I think, is supported by the fact that such a conviction is also a matter which gives rise to a discretion in an authorised officer to revoke the licence under s.29(1)(b). In the same way it was a matter which the Magistrate could take into account, and it seems to me that he did so. The Magistrate considered that matter as he was entitled and required to under s.148, and decided to renew the licence. That aspect of the decision was not subject to appeal, and it could only be subject to a very limited appeal given the restricted nature of the appeal to this court.

In his affidavit sworn 16 November 1998 and used in the proceedings in the Magistrates Court, the appellant deposes that on 19 March 1998 he dealt with the respondent’s “application for a firearms licence” and “considered and determined the application in accordance with sections 10 and 15 of the Weapons Act 1990 and subsequently refused to issue a firearms licence to Ross Andrew McKay”. If that affidavit were accurate, then in my opinion the position is that there had been no valid determination of the respondent’s application to renew prior to 31 March 1998 when s.174 expired: subsection (5). It is, however, unnecessary for me to consider whether the effect of this is that the respondent’s licence also expired on that date, because I am satisfied that the affidavit is not accurate. Exhibited to an affidavit by the respondent is a letter from the appellant dated 20 March 1998, which referred to “your application to renew Weapons Act licence number 11765191", and after referring to the conviction on 25 August 1995, recorded his decision as follows:

“Your application for renewal Weapons Act licence number 11765191 is refused under the provisions of the Weapons Act 1990. Enclosed is a refusal/revocation notice outlining the reasons for the refusal/revocation of the Weapons Act licence.”

It went on to require the surrender of the licence and/or weapons held under it.  Enclosed with the letter was a “Notice of Refusal to Issue or Renew Licence” which makes no reference to revocation but merely advises the applicant that

“Your application dated 12 April 1991 for the issue or renewal of the firearms licence is rejected.  The reason for the rejection is: You are disqualified under the Weapons Act 1990 from holding the licence. You have been convicted of an offence against the law enforcement in Queensland or elsewhere involving the use, carriage, discharge or possession of a weapon within the preceding 5 years.”

It is dated 19 March 1998.  Plainly the appellant was not considering the application dated 12 April 1991, which had been approved much earlier, as the appellant says in his affidavit, leading to the issuing on 9 May 1991 of  licence 1176591-00 for the possession of Schedule 3 firearms.  I think that the notice dated 19 March 1998 should be treated as notice of a rejection of the application which had been made prior to 30 September 1997 on the copy of Form 6 sent to the respondent.  I expect the affidavit of 16 November 1998 was based on legal advice as to the operation of the provisions I have considered which differed from what I regard as the true construction of the legislation. 

I do not want to be too critical of those charged with the administration of this legislation, because it is, I think, particularly badly drafted legislation, and is therefore likely to be difficult to administer anyway, and those difficulties are likely to be made worse by the fact that in some respects the operation of the legislation is necessarily unfair and unjust.  I refer to my decision in Peacock v. Crowley (Appeal 1573/98, 20.5.98, unreported) where I discussed the workings of certain provisions which I considered, for reasons there stated, to be unfair and unjust. The matter is not made any easier by the circumstance that debate in relation to weapons regulation, particularly firearms control, appears to be still dominated by the extremists on both sides. The only aspect which really concerns me about the administration of the Act is that there were suggestions in various ways in the course of the argument in this appeal, and in the course of argument in another appeal which I heard in Charleville under s.222 of the Justices Act, that there may be a failure to distinguish between the situation where the Act provides that if X occurs, Y follows, and the situation where the Act provides that if X occurs, the administrator has a discretion to decide whether Y follows.  In the latter case, it is not permissible to exercise the discretion by applying automatically a predetermined rule or policy: Judicial Review Act 1991 s.23(f). It is necessary to exercise the discretion having regard to all the circumstances in the particular case, accepting that they may justify a departure from any general policy.

The material before the Magistrate was to the effect that the respondent had on 25 August 1995 been convicted in the Magistrates Court at Charleville of two charges of failing to secure a weapon where a conviction was recorded and a fine imposed. I was provided with a copy of the certificate of conviction which shows that the conviction was one for an offence against s.60 of the Weapons Act 1990 as it then stood, but based on the respondent’s ownership of the weapon and his having “failed to comply insofar as it is reasonably practicable with the prescribed precautions to ensure at all times that, when the said weapon is not in the physical possession of the said Ross Andrew McKay it is kept in a place of safety, namely a locked receptacle or locked room ...”. It appears to have been assumed by the appellant and by the Magistrate that that offence is one which falls within the description in s.10(6)(iii) of the Act, and what I have written above also assumes that that is the case. It is unnecessary for me to decide for the purposes of this appeal whether or not that assumption is correct, as to which I express no view, and would merely caution that nothing that has been said in these reasons for judgment is intended to express endorsement of the correctness of that assumption.

In the circumstances, for the reasons given earlier, the appeal is incompetent and is struck out.  I order the appellant to pay the respondent’s costs of the appeal to be assessed. 

Advocate for the appellant:   A. Melville

Counsel for the respondent:  P.S. Hardcastle

Solicitor for the appellant:   Crown Solicitor

Solicitor for the respondent:  Frank Jongkind & Co.

Date of Hearing:  21 October 1999.