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…

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.

Continue reading Crowley v Mckay

Details

AGLC: Crowley v Mckay [1999] QDC 281
Case: [1999] QDC 281
Decision Date: 5 November 1999

CaseChat Overview and Summary

Crowley v McKay involved an appeal from a decision of a Stipendiary Magistrate who allowed an appeal against the refusal of an application for a new licence under the Weapons Act 1990. The central legal issue was whether the appeal to the District Court was competent, given that the Notice of Appeal was filed more than 30 days after the Magistrate's decision. The court had to determine if the appeal was filed as soon as possible after the decision, as required by the Acts Interpretation Act 1954, or if it was delayed beyond a reasonable period, rendering the appeal incompetent.

The court held that the appeal was indeed out of time and therefore incompetent. The reasoning was that the appeal should have been filed within a reasonable time after the decision, and while there was some justification for the delay due to obtaining transcripts and the absence of the prosecutor, the overall delay of over six months was not acceptable. The court also noted that the appeal, being on a question of law, concerned a fairly narrow point that did not necessarily require all the material before the Magistrate. The court concluded that the appeal was not filed as soon as reasonably possible and thus was incompetent. Consequently, the appeal was struck out, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders