Pollock v Queensland Police Service Weapons Licensing Branch

CITATION:

Pollock v Queensland Police Service Weapons Licensing Branch [2012] QCAT 105

PARTIES:	Ms Zoe Pollock (Applicant/Appellant)
v
Queensland Police Service Weapons Licensing Branch (Respondent)

APPLICATION NUMBER:

GAR087-11

MATTER TYPE:

General administrative review matters

HEARING DATE:

23 September 2011

HEARD AT:

Brisbane

DECISION OF:

Dr Bridget Cullen, Member

DELIVERED ON:

8 March 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application of Ms Zoe Pollock is dismissed.

2. The parties to bear their own costs of the review.

CATCHWORDS:

Review application under the Weapons Act 1990 – decision to seize ammunition by police simultaneous with service of notice or revocation is not a reviewable decision by QCAT

Queensland Civil and Administrative Tribunal Act 2009, ss 29, 32

Weapons Act 1990, ss 142(2), 151(1)(a)

Explosives Act 1999

Pollock v Queensland Police Service Weapons Licensing Branch [2011] QCATA 189
Pollock v Queensland Police Service Weapons Licensing Branch [2010] QCAT 077

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Background

In this application, Ms Zoe Pollock seeks to review a decision made pursuant to s 151(1)(a) of the Weapons Act 1990 on the 28^th day of January 2010. That decision, made by Acting Inspector Russell Jones of the Sherwood Police Station, was to revoke the firearms license of Mr Damien Pollock, with whom Ms Zoe Pollock resides.

I note that Damien Pollock also sought review of this decision by QCAT in Pollock v Queensland Police Service Weapons Licensing Branch [2010] QCAT 077; Pollock v Queensland Police Service Weapons Licensing Branch [2011] QCATA 189. Ultimately, Mr Pollock was unsuccessful in his review and his firearms license was not returned. QCAT upheld the decision made by the Weapons Licensing Branch that Mr Pollock was not a fit and proper person to hold the license.

Although Mr Pollock was unsuccessful in his review application, as he was the subject of the 28 January 2010 decision under review, he was a person entitled to review the matter.

Here, Zoe Pollock seeks to review the same decision, on the basis that the local Police, contemporaneous with the events that lead to the revocation of Mr Pollock’s license, seized ammunition which she says belongs to her.

The question as to whether the decision was one that Ms Pollock is entitled to review was raised by the respondent, the Queensland Police Service Weapons Licensing Branch (“QPSWLB”) in a directions hearing on 23 June 2011. Following that hearing, Senior Member Oliver issued directions that the QPSWLB was to file in QCAT, and serve on Ms Pollock, submissions in support of its application for summary disposal of this matter. Those submissions were received by QCAT on 22 July 2011. Thereafter, Ms Pollock filed submissions in response and the matter was then listed for a hearing before me, on 26 August 2011.

Ms Pollock failed to attend the 26 August 2011 hearing, and also failed to proffer any excuse for her non-attendance. Despite this, in an effort to ensure that Ms Pollock was afforded procedural fairness, and bearing in mind the important requirements of s 29 of the Queensland Civil and Administrative Tribunal Act 2009, which requires me to take all reasonable steps to ensure that each party to a proceeding understands the nature of assertions made, and the legal implications thereof, I provided a further opportunity for Ms Pollock to file written submissions on the question of whether she was entitled to review the 28 January 2010 decision.

Ms Pollock did not avail herself of this opportunity. Thereafter, having determined that the 28 January 2010 decision under review was made with respect to Mr Pollock’s weapons license only, I dismissed Ms Pollock’s application, on 23 September 2011.

Dismissal of Ms Pollock’s Application

I have now been asked to provide reasons for my 23 September 2011 decision dismissing Ms Pollock’s application.

The submissions prepared by the QPSWLB in this matter are quite helpful in explaining the nature of the 28 January 2010 decision, and I agree with the submissions contained within them, in their entirety. At paragraph 4 of those submissions, the Weapons Licensing Branch explains that:

“(a) there is no authority for the tribunal to review the decision by local police to seize the ammunition; and
(b)for the purposes of Section 142(2) of the Weapons Act 1990, the applicant is not a person aggrieved by the decision of JONES in that:
(i) she has been deprived of any legal rights or claims in relation to the firearms; and
(ii) the circumstances of her lodging her application is not consistent with a person so aggrieved.”

As it eventuated, the local police were required to attend Mr Pollock’s address (shared with Ms Pollock) to serve him with the weapons revocation notice, and to seize his firearms license, together with the two firearms registered to Mr Pollock and Ms Pollock’s shared address.

As set out in the affidavit of Trevor Hazenberg[1], there were no directions or instructions given to the police officers serving Mr Pollock, prior to their attendance at his residence. However, following some “belligerence” on Mr Pollock’s part, the local police decided, based upon Mr Pollock’s behaviour, to also seize a quantity of ammunition located within the premises. It is this seizure of ammunition, which Ms Pollock says belongs to her, that Ms Pollock now seeks to review before QCAT.
[1] Affidavit of Trevor Willem Hazenberg sworn to on the 20 July 2011 paragraph 11.

The QPSWLB submits that a decision to seize ammunition, made in these circumstances, is not a decision made under the Weapons Act 1990, and is therefore not a decision reviewable by QCAT. I agree. As explained in the submissions of the QPSWLB, a decision by local police to seize ammunition is provided for under the authority of the Explosives Act 1999. Such a decision is to be made at the discretion of the senior police officer present at a scene, and there is no legislative avenue for review by QCAT of a decision of this type afforded by the Explosives Act 1999.[2]
[2] Section 111, Explosives Act 1999.

As set out in some detail in Mr Hazenberg’s affidavit, there are several alternate means by which Ms Pollock might reacquire the ammunition that she says belongs to her. Again, these avenues have no relationship to QCAT; rather, they are internal processes managed by the Queensland Police Service. For the reason that these alternative means have already been set out in some detail in Mr Hazenberg’s affidavit, which has previously been given to Ms Pollock, I don’t propose to reiterate them here.

Conclusion

Whilst the decision to seize ammunition, simultaneous with the service of the decision to revoke Mr Pollock’s firearms license, may have had a practical impact on Ms Pollock, it is not a decision which Ms Pollock can seek review of before QCAT. It is for this reason that Ms Pollock’s application for review in this matter was dismissed.

With s 100 of the QCAT Act in mind, I further order that the parties bear their own costs associated with this application.

The applicant, Ms Zoe Pollock, sought a review of a decision made by the Weapons Licensing Branch of the Queensland Police Service to seize her ammunition. The dispute centred around the interpretation of the Weapons Act 1990 and whether the decision to seize the ammunition, which occurred simultaneously with the service of a notice or revocation, constituted a reviewable decision by the Queensland Civil and Administrative Tribunal (QCAT). The application was lodged with QCAT, which had jurisdiction to review decisions under the Weapons Act 1990.

The primary legal issue before the tribunal was whether the decision to seize ammunition by the police, occurring at the same time as the service of a notice or revocation, was a reviewable decision under the Weapons Act 1990. Ms Pollock argued that the seizure was an administrative action that should be subject to review, while the respondent, the Weapons Licensing Branch, contended that the seizure was part of a legal process and therefore not subject to review. The tribunal had to determine the scope of its review powers under the Weapons Act 1990 and whether the seizure of ammunition constituted a decision that could be reviewed by QCAT.

In dismissing the application, the tribunal found that the decision to seize ammunition was not a reviewable decision by QCAT. The tribunal reasoned that the Weapons Act 1990 did not expressly provide for the review of administrative decisions made by police officers in the course of executing their duties. The tribunal also noted that the seizure of ammunition was part of a legal process aimed at enforcing the provisions of the Weapons Act 1990, and as such, it did not constitute an administrative decision subject to review. Consequently, the tribunal held that QCAT did not have jurisdiction to review the decision to seize ammunition.

The tribunal further ordered that the application be dismissed and that each party bear their own costs of the review. This decision clarified the scope of QCAT's review powers under the Weapons Act 1990 and provided guidance on the types of decisions that could be subject to review by the tribunal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established