Garry Charles Pershouse v Queensland Police Service Weapons Licensing
[2017] QCAT 187
•5 June 2017
CITATION: | Garry Charles Pershouse v Queensland Police Service Weapons Licensing [2017] QCAT 187 |
PARTIES: | Garry Charles Pershouse |
| v | |
| Queensland Police Service – Weapons Licensing (Respondent) | |
APPLICATION NUMBER: | GAR074-17 |
| MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Rogers |
DELIVERED ON: | 5 June 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for an extension of time to review a decision is granted. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE – Application for extension of time to review a decision – application to review a decision to revoke a weapon licence – where application brought out of time – whether extension warranted in the Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3), s 61(1), s 61(3) |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Pershouse seeks to review of a decision of the Queensland Police Service – Weapons Licencing (QPS) dated 30 January 2017 to revoke his weapons licence pursuant to s 29(2)(a) of the Weapons Act 1990 (Qld). That section provides that if a licensee reports or states to a police officer that a registered weapon has been lost or stolen, and they fail to satisfy the authorised officer that they took reasonable precautions to prevent the loss or theft, an authorised officer may revoke the licence.[1]
[1]Weapons Act 1990 (Qld), s 29(2)(a).
The reasons for the decision provided in the information notice state that Mr Pershouse reported the theft of his firearm, and that in response to a letter requesting information about precautions taken, he stated that he had failed to secure the firearm in his safe after using it.
His application, filed 29 March 2017, was filed outside the QCAT Act statutory time limit of 28 days.[2] He has applied for an extension of the time to allow him to file his application.
[2]Queensland Civil and Administrative Tribunal Act 2009, s 33(3).
The Tribunal may extend a time limit fixed for the start of a proceeding, but only if doing so would not cause prejudice or detriment to a party, or potential party, that is not able to be remedied by an appropriate order for costs or damages.[3]
[3]Queensland Civil and Administrative Tribunal Act 2009, s 61.
The power to grant an extension of time is a discretionary one. The factors to consider include;
a)Whether there has been a reasonable explanation for the delay in filing the application for review;
b)Whether granting an extension is fair and reasonable in all the circumstances;
c)Whether there has been any prejudice suffered as a result of the delay;
d)Whether the substantive application has some merit.[4]
[4]Hunter Valley Developments Pty Ltd v The Honourable Barry Cowan, Minister for Home Affairs Environment [1984] 3 FCR 344.
Mr Pershouse simply states his application was not filed in time because he did not read the information carefully enough and was not aware of the 28 day time limit.
He says he is very careful with his firearm and would not have left it unsecured. He believes it was stored correctly in a gun safe, which had been previously checked and approved by a local police officer.
He now states the most likely scenario is that a girl who did some house cleaning for him came into the house, located the keys to his gun safe, took the firearm and then locked everything up again so he wouldn’t notice. He says that he did not consider this possibility when the Police came to confiscate his firearm, and was looking for other explanations and so accepted that he may have left the firearm unsecured. He subsequently became aware of the name of the person found to have his firearm. His cleaner, who has a criminal history for stealing, was the girlfriend of this man.
He said that while he does not use it often, he needs his firearm to put down sick or injured farm animals humanely or to protect his stock and property from wild pigs and dingoes.
The QPS argues that an extension of time should not be granted. It says the 28 day time limit was in the notice and it is not a good enough excuse to say ‘I didn’t read the information carefully enough.’ It says there is prejudice to the QPS if the application is now allowed to proceed when it could have been brought within time. It argues that Mr Pershouse offered differing statements to police about what happened and that as a result of these inconsistencies his case does not meet the requisite standard of an arguable case.
It is the submission of the QPS that it is entitled to finality in the proceedings and it is not in the interests of justice to allow the proceedings to continue when the delay is due to an unacceptable failure by the applicant to act within the time limit.
I have carefully considered the arguments of both parties and have decided this is a case where I should exercise my discretion to grant the extension of time.
The delay in filing the application if not a great one. While the excuse for the delay is simply not knowing, and the application was outside the 28 days allowed, it can not be said that the delay was an unreasonable one. Mr Pershouse decided he was going to review the decision and did so within two months. The time limit is designed to promote certainty but it is not designed to punish an applicant for an oversight. If Parliament had meant to require strict compliance it would not have granted a discretion to waive that compliance.
I am not satisfied there is a prejudice caused by the delay itself. It has not been suggested there is evidence that is no longer available or that investigations which could have been conducted can no longer be pursued. While strict compliance with the statutory time frame is certainly desirable, failure to comply should not be fatal to a review when a short delay does not impact on the conduct of the action. Accepting this application does not frustrate the purpose of the legislation.
I have considered the argument that Mr Pershouse has not established an arguable case. This is based on the differing versions that Mr Pershouse has offered and the suggestion that this inconsistency leads to the conclusion that he is not a credible witness. It is premature to make this determination. Mr Pershouse should be given the opportunity to present his evidence and respond to any challenge under cross-examination. It is his explanation that the differing versions developed as more information became available. His explanation, if accepted, seems capable of satisfying a Member that he took reasonable precautions to prevent the theft of his firearm.
I am satisfied there is an arguable case and that the substantive argument has some merit.
Having considered these factors I am satisfied that, on balance, an extension of time to review the decision is fair and reasonable in all the circumstances.
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