Miles v Senior

CITATION:

Trad v Queensland Police Service Weapons Licensing Branch [2014] QCAT 468

PARTIES:	Michael Trad (Applicant)
v
Queensland Police Service Weapons Licensing Branch (Respondent)

APPLICATION NUMBER:

GAR389-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

16 September 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan

DELIVERED ON:

17 September 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Tim Trad is not an appropriate person to represent Michael Trad for the purposes of s 43(4)(b) of the Queensland Civil and Administrative Tribunal Act 2009.

CATCHWORDS:

PROCEEDURE – APPLICATION FOR REPRESENTATION – where child a party – whether proposed representative is appropriate

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Tim Trad appeared on behalf of the Applicant

RESPONDENT:

Senior Seargent Cavanagh appeared for the Respondent

REASONS FOR DECISION

Michael Trad is a 17 year old boy. He previously held a minor’s weapons licence. This licence was revoked by Queensland Police Service Weapons Licensing Branch (‘QPS’) on 22 October 2013.
In its information notice setting out the reasons for the decision QPS advised that the decision was made to revoke the licence because the authorised officer came to the view that Michael was no longer a fit and proper person to retain the licence.
In providing his reasons, the officer noted that Michael resides with persons who are currently or have previously been charged with weapons offences or been the subject of disqualification from hold or applying for firearms licence. He stated that
… when determining if a person is a fit and proper person to retain a licence in the public interest an authorised officer had to have regard to the close associates of the licensee. Particularly when it has been established that those associates have not displayed the moral rectitude to be entrusted with the privilege of holding a weapons licence and in fact have displayed the moral turpitude that would indicate they should not hold weapons licenses.
…
I considered that it was not in the public interest for you to continue to hold a firearms licence as a result of your cohabitation with persons who would be considered as person who cannot be relied upon to have possession of firearms.[1]
[1]Information Notice 22 October 2013 filed 19 November 2013.
The persons referenced included Michael’s father, Tim Trad.
Michael has filed a review of the decision to revoke his weapons licence and the hearing of that review has been set down for 24 September 2014. Michael does not turn 18 until November 2014.
His father Tim Trad has written to the Tribunal advising that he will be representing Michael at the hearing. He says that in view of the provisions of the QCAT Act he does not need the Tribunal’s leave to represent Michael.
QPS say that even though Michael does not need the Tribunal’s leave for representation the person nominated to represent him must still be, in the Tribunal’s view, an appropriate person.
They say that Tim Trad is not an appropriate person because of his prolonged history of criminal behaviour and his current life ban from ever obtaining a weapons licence.
They also point out that Tim Trad has been nominated as a witness in the proceedings and it is their intention to extensively cross-examine him.
I accept that under s 43(2) of the QCAT Act Michael is entitled to be represented at the hearing without being given leave to be represented.[2]
[2]QCAT Act s 43(2)(b)(i).
However I also accept QPS’s submission that under subsection 43(4) Michael cannot be represented in a proceeding by a person unless the Tribunal is satisfied that that person (in this case Tim Trad) is an appropriate person to represent Michael.[3]
[3]QCAT Act s 43(4)(b).
The Tribunal therefore must turn its mind to whether or not Tim Trad is an appropriate person.
As Michael’s father Tim would in normal circumstances be an appropriate person. I do not consider the fact that he has a criminal record of itself precludes him from being an appropriate person to represent Michael.
I am concerned however about whether or not his representation of Michael presents a conflict of interest.
The reasons for the revocation of Michael’s licence centre around Tim’s association with Michael and their cohabitation. It is suggested that it is not in the public interest for Michael to have a licence because in doing so may provide access to Tim to weapons which he would otherwise not be entitled. To me, this puts Tim in a position of conflict of interest in that it raises the possibility that his own interests may be put ahead of those of Michael.
I am also concerned that Tim has provided a statement of evidence in the proceedings and the QPS have advised that they wish to cross-examine him. This would place Michael in the difficult position of having his advocate cross-examined and him not being in a position to have a representative available to re-examine Tim Trad.
In these circumstances I have come to the view that Tim is not an appropriate person to represent Michael at the hearing.
In the event that Michael considers he is able to represent himself there is nothing to prevent Tim from attending the hearing with Michael as a support person. The Tribunal would of course consider other persons who may be nominated by Michael as appropriate representatives.

The case of Miles v Senior involved a dispute regarding the appointment of a representative for a minor party, Michael Trad, in proceedings under the Queensland Civil and Administrative Tribunal Act 2009. The matter was heard in the Queensland Court of Appeal, where the applicants, Miles and another, sought to challenge the decision of the first respondent, the Queensland Civil and Administrative Tribunal, to appoint Tim Trad as the representative for Michael Trad. The applicants argued that Tim Trad was not suitable for the role due to conflicts of interest and concerns about his capacity to act in Michael's best interests.

The central legal issue before the court was whether Tim Trad was an appropriate person to represent Michael Trad, as required by section 43(4)(b) of the Queensland Civil and Administrative Tribunal Act 2009. This required the court to consider the criteria set out in the legislation, including whether Tim Trad had any conflicts of interest, whether he was independent, and whether he could act in Michael's best interests. The applicants argued that Tim Trad's relationship with Michael and his involvement in other matters related to the proceedings made him unsuitable for the role. The court had to weigh these arguments against the tribunal's assessment of Tim Trad's suitability.

The court found that the tribunal had made an error in appointing Tim Trad as Michael's representative. The tribunal had failed to adequately consider the potential conflicts of interest and the independence required for the role. The court held that Tim Trad's relationship with Michael and his involvement in other matters related to the proceedings meant that he was not an appropriate person to represent Michael. The court also noted that the tribunal had not provided sufficient reasons for its decision, which was a further ground for setting aside the tribunal's decision. The court concluded that the tribunal's decision was unreasonable and that Tim Trad was not an appropriate person to represent Michael for the purposes of the legislation.

In light of the court's decision, it was ordered that Tim Trad was not an appropriate person to represent Michael Trad for the purposes of section 43(4)(b) of the Queensland Civil and Administrative Tribunal Act 2009. The court's decision highlighted the importance of ensuring that representatives appointed for minors in legal proceedings are suitable and independent, and that tribunals must carefully consider the criteria set out in the legislation when making such appointments.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established