Ney v Queensland Police Service - [2024] QCAT 527

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ney v Queensland Police Service [2024] QCAT 527

PARTIES:

RACHEL ELISE NEY

(applicant)

v

QUEENSLAND POLICE SERVICE

(respondent)

APPLICATION NO/S:

GAR407-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 November 2024

HEARING DATE:

11 November 2024

HEARD AT:

Brisbane

DECISION OF:

Member Jensen

ORDERS:

The decision made by the respondent on 10 May 2023 to reject the applicant’s application for a firearms licence is confirmed.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – RENEWAL AND OTHER MATTERS – review of decision to reject application for firearms licence under Weapons Act 1990 (Qld) – where applicant charged with property related offences and drug offences – where no conviction recorded – where applicant had a traffic history – whether the applicant is a fit and proper person to hold a firearms licence

Human Rights Act 2019 (Qld), s 3, s 4, s 13, s 24
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 20, s 24

Weapons Act 1990 (Qld), s 3, s 10B, s 29, s 142

Australian Broadcasting Tribunal v Bond [1990] HCA 33

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657

CTA v Queensland Police Service [2018] QCAT 440

Director of Public Prosecutions v Smith [1991] 1 VR 51
Kirton v Queensland Police Service Weapons Licensing Branch [2012] QCAT 70
McVie v Queensland Police Service Weapons Licensing Branch [2010] QCAT 491

R v Beissel (1996) QCA 488

Vlahos v Commissioner of Police, NSW Police Force [2013] NSWADT 199

Ward v NSW Commissioner of Police [2000] NSWADT 28

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Senior Constable C Moore

REASONS FOR DECISION

The issues

The applicant applied to the respondent on 28 August 2022 for a firearms licence, which the respondent rejected by notice dated 10 May 2023 (the ‘decision’). The two reasons given in the decision are as follows:
(a)It is considered by the authorised officer that the applicant is presently not a fit and proper person to hold a licence under the Weapons Act 1990 (Qld), (the ‘Weapons Act’); and
(b)It is not considered to be in the public interest that the applicant hold a licence authorising the possession of weapon.
The applicant subsequently filed an application in this tribunal to review the decision and requesting that she be granted a firearms licence. The respondent opposes the application.

The basis for reviewing the decision

By virtue of s 142(1)(a) and s 142(2) of the Weapons Act, the applicant may apply to the tribunal for a review of the decision. Review jurisdiction is conferred on the tribunal under s 9(1) and s 9(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the ‘QCAT Act’).
Pursuant to s 20(1) of the QCAT Act, the purpose of the review of a reviewable decision is to produce the correct and preferable decision.
Pursuant to s 20(2) of the QCAT Act…

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 Ney v Queensland Police Service

Details

AGLC: Ney v Queensland Police Service [2024] QCAT 527
Case: [2024] QCAT 527
Decision Date: 11 November 2024

CaseChat Overview and Summary

In the matter of Ney v Queensland Police Service, the applicant, Ney, sought judicial review of a decision made by the respondent, the Queensland Police Service, to reject his application for a firearms licence. The crux of the dispute lies in the respondent's conclusion that Ney was not a fit and proper person to hold a firearms licence, based on several factors including his criminal history and traffic violations. Ney argued that the decision was flawed and sought to overturn the respondent's rejection of his application under the Weapons Act 1990 (Qld). The court was tasked with determining whether the respondent's decision was lawful and whether it was supported by relevant considerations.

The central legal issues before the court were whether the respondent had correctly applied the criteria for assessing fitness to hold a firearms licence, and whether the decision to reject Ney's application was based on improper or irrelevant considerations. The court had to examine the statutory framework and relevant case law to ascertain the proper application of the legislative criteria and to ensure that the decision-making process was fair and rational. It was also necessary to consider whether the respondent had given adequate weight to the fact that Ney had no recorded convictions, despite facing charges related to property and drug offences.

The court found that the respondent had exercised its discretion within the bounds of the legislative criteria, appropriately considering all relevant factors, including Ney's criminal history and traffic violations. The court concluded that the respondent's decision was lawful and based on proper considerations, thereby confirming the decision to reject Ney's application for a firearms licence. The court held that the respondent had correctly balanced the need to protect public safety against the applicant's lack of convictions, and that the decision was not irrational or unlawful.

The final orders confirmed the decision made by the respondent on 10 May 2023 to reject the applicant's application for a firearms licence. The court upheld the respondent's assessment that Ney was not a fit and proper person to hold a firearms licence, and dismissed the application for judicial review.

Orders

Orders of the court

The decision made by the respondent on 10 May 2023 to reject the applicant’s application for a firearms licence is confirmed.

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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