Smith v Queensland Police Service Weapons Licensing
[2017] QCAT 270
•18 August 2017
CITATION: | Smith v Queensland Police Service Weapons Licensing [2017] QCAT 270 |
PARTIES: | Anthony John Smith |
| v | |
| Queensland Police Service Weapons Licensing (Respondent) | |
APPLICATION NUMBER: | GAR156-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Acting Senior Member Paratz |
DELIVERED ON: | 18 August 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The time for Anthony John Smith to file an application to review a decision is extended to 19 June 2017. 2. The application to review a decision is to be set for a Compulsory Conference at a date and place to be advised. |
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – PROCEDURE AND EVIDENCE – PROCEDURE – where an application to review a decision as to a concealed firearm was filed out of time – where the applicant was in a remote area – whether circumstances justify an extension of time Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61 |
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 Smith seeks to review a decision of the Queensland Police Weapons Licensing branch (‘QPS’) refusing his application to re-register an ‘H’ type concealable weapon (handgun).
Mr Smith filed an application to review a decision in the Tribunal on 19 June 2017. He notes in his application that the decision was made on 5 May 2017, sent on 10 May 2017, and received by him on 16 May 2017.
An application to review the decision is required to be made within 28 days of receiving the decision. That period expired on 13 June 2017. He was therefore 6 days out of time in filing his application.
Mr Smith also filed an application to extend time on 19 June 2017. Directions were given by the Tribunal on 3 July 2017 for the filing of submissions by the QPS and a decision on the papers.
The QPS filed submissions on 28 July 2017. This is the decision on the papers.
Mr Smith lives at Dirranbandi. In his application for an extension of time he said:
Can I have an extension of time to send all the relevant information of my case to the tribunal.
I do not have faith that my mail will get to it destination in time due to our mail system being very slow.
Confussion (sic) over the process in applying for a review has also slowed the delivery to you.
The QPS filed a submission in response to the application for an extension of time on 28 July 2017. It opposes the application being granted.
The QPS say that Mr Smith failed to provide them with a copy of the application to extend time by 10 July 2017 as directed, and that this placed it in a disadvantageous position of responding to unknown matters which may or may not have been placed before the Tribunal.[1]
[1]Submissions Queensland Police Service Weapons Licensing 28 July 2017, para 1.
The QPS note that whilst the delay in lodging is not excessive it is unexplained.[2]
[2]Ibid, para 2.
The QPS submit that Mr Smith would have been aware of the time limits as he was advised as to the procedure in Part E of the rejection notice by Police on 26 May 2017.[3]
[3]Ibid, para 3.
The QPS submit that Mr Smith has to show that he has an arguable case, and refer to the line of authority as to need for Category H weapons in the conduct of rural activities.
The QPS noted in its Information Notice accompanying the decision that ‘the issue of a Concealable Firearms license for use in occupational primary production is generally restricted to very large land holdings which have excessively rugged terrain requiring the extensive use of motorbikes or horseback to access’.[4]
[4]Information Notice 5 May 2017, 3.
The QPS noted in its Information Notice accompanying its decision the following considerations raised in Mr Smith’s licence application:
1)The property was 25,000 acres.
2)You described the terrain as 3500+ acres heavy scrub going into lighter regrowth with cultivation.
3)Your reason to continue owning a H category weapon is for use in the culling of feral animals along with need to use the weapon to put down injured, sick or drought affected stock and wildlife.
4)The revolver is a single action it is used on the two wheel motor bikes for safety and ease of use.
5)The revolver is predominantly used on our two wheel motorcycles because it is easier, safer and can be used one handed.
6)You encounter pigs, foxes, dingos, goats, cats with high numbers of plague kangaroos.
7)You have 1,000 to 1,200 head of cattle and crops of barley, oats and chick peas.
Mr Smith supports his application to review by saying:[5]
The weapon is a tool of trade not a toy. It is used properly and for its purpose. It has been used over the generations, being always lawfully stored and used.
Just because a person uses a firearm it should not be assumed that they are inhumane in its use.
[5]Application to Review filed 19 June 2017, 5.
Mr Smith raises submissions that are consistent with the requirements for a Category H weapon. He does use the weapon for genuine employment reasons, and he has a large property which he describes as having heavy scrub requiring use of motorcycles. Whether his submissions will reach a high enough level to satisfy the requirements will be a matter of evidence to be discussed, or to be determined on a hearing.
I am satisfied however that Mr Smith does raise an arguable case. The delay is only 9 days, and no actual prejudice has been shown by the QPS by the delay.
Mr Smith has raised a plausible argument as to time taken for mail to be delivered. I note that the Notice of Decision took 6 days to reach him – if a reply took a similar time, this would effectively reduce his time to file an application by about a quarter (which is about the period he is out of time). As he is in a remote area, he may have no option other than to rely on mail, rather than personal lodging.
In all the circumstances, I am satisfied that Mr Smith has given a plausible explanation for the delay which is of short duration, that he has an arguable case, and that it is in the interests of justice that he should be offered the opportunity to have his case heard in full. I will grant the application for an extension of time.[6]
[6]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61.
The basic submissions of the parties have been outlined in the documents to date, sufficient for the parties to have an understanding of the matter. It is appropriate as the next step to direct the holding of a Compulsory Conference at this stage, before requiring the filing of formal statements of evidence, so that the parties may discuss the application.
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