Powell v Queensland Police Service Weapons Licensing

[2019] QCATA 174

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Powell v Queensland Police Service – Weapons Licensing [2019] QCATA 174

PARTIES:

TIMOTHY IAN CHARLES POWELL
(applicant/appellant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

APL210-18

ORIGINATING APPLICATION NO/S:

GAR341-17

MATTER TYPE:

Appeals

DELIVERED ON:

24 October 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

Both parties are granted leave to be legally represented in the proceedings.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – GENERALLY – where respondent applies for leave to be legally represented in the proceedings – where respondent is a state agency – whether leave to be legally represented should be granted – whether granting such leave is in the interests of justice

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29, s 43
Weapons Act 1990 (Qld) s 3

Chaudhary v Medical Board of Queensland [2012] QCAT 172

APPEARANCES:

Applicant:

Self-represented

Respondent:

Elizabeth Kennedy, solicitor of the Queensland Police Service Legal Unit

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

REASONS FOR DECISION

1. Timothy Ian Charles Powell applied to QCAT for the review of a decision made by the Queensland Police Service - Weapons Licensing Branch (‘QPS’) to reject his application to change the conditions on his firearms licence. The application for review has not yet been finally determined. The Tribunal determined an interlocutory application in the review proceeding wherein Mr Powell sought orders for a partially closed hearing; non-publication orders in respect of certain information; to exclude evidence and for the production of documents and things to be produced by QPS and himself, respectively.

2. Mr Powell filed an application for leave to appeal or appeal the interlocutory decision of the Tribunal. The appeal proceeding has not been finally determined. The grounds of appeal relate to alleged error by the Tribunal in publishing certain information that is allegedly likely to identify a police informant; in refusing to allow Mr Powell to rely upon a ‘direction’ made at the compulsory conference concerning s 3 of the Weapons Act 1990 (Qld) (‘Weapons Act’); in finding previous decisions of the QPS and Magistrates Court irrelevant in the merits review proceeding; and in refusing to allow Mr Powell to produce three firearms and various magazines to the Tribunal.

3. In the course of the appeal proceeding, the QPS filed an application for leave to be represented. Both parties were directed to provide submissions. I then determined that application. I made orders granting leave for both parties to be legally represented in the appeal proceeding. Mr Powell has sought reasons for my decision and I now provide them.

   Should leave be granted for legal representation?

4. Pursuant to s 43 of the QCAT Act, generally parties in QCAT must represent themselves unless the interests of justice require otherwise. Other than in limited circumstances specified in s 43(2), which is not relevant here, a party may be legally represented only with the leave of the tribunal. In deciding whether to grant leave, the tribunal may consider certain circumstances as supporting the giving of leave. Those circumstances are that the party is a State agency; the proceeding is likely to involve complex questions of fact or law; another party to the proceeding is represented in the proceeding; and all of the parties agreeing to the party being represented.

5. The QPS made a number of arguments in support of its application for leave for legal representation. They are briefly summarised here. QPS submitted that a grant of leave should be made because the issues to be considered have potential significance for other proceedings ‘of this type’. The QPS is a State agency. Further, it submitted that complex questions are raised by Mr Powell on appeal.

6. An authorised officer, a QPS Police Sergeant, made the decision reviewed by Mr Powell. The issues raised on the appeal proceeding raise questions of law and proper procedure under the QCAT Act and the Weapons Act. I accept that they have potential implications more broadly than in Mr Powell’s review of a decision under the Weapons Act. It is important that the issues be fully argued and addressed in the appeal proceedings.

7. More broadly, the QPS is a State agency. It must appear through representatives. As a State agency, QPS is obliged to act as a model litigant in the proceedings. It must conduct itself in a manner that exemplifies the principles of justice.[1] Arguably it can best do so in this appeal proceeding given the issues that arise if it is represented by someone experienced in the relevant law and tribunal proceedings. That is, through a legal representative. Further because of this obligation, there is no disadvantage to Mr Powell if the QPS is represented. It may be that considering submissions from a legal representative may assist Mr Powell to focus his arguments on the most relevant matters, and in that manner aide the tribunal in discharging its obligations pursuant to s 29 of the QCAT Act, to ensure Mr Powell’s understanding of specified relevant matters. This may also be expected to assist in expediting the proceedings.

   [1]Chaudhary v Medical Board of Queensland [2012] QCAT 172, [26].

8. I accept that, in view of the potentially broader significance of the appeal proceeding and the issues that arise within it, the interests of justice are best served by the QPS, a State agency, being granted leave to be legally represented.

9. That said, it seems to me in the interests of justice in the appeal proceeding to also afford Mr Powell the option of be legally represented in the proceedings, should he choose to do so.

   Conclusions and orders

10. For the reasons discussed above, I find that it is in the interests of justice for leave to be granted to both parties to be legally represented in the proceeding.