Weston v Bradford
[2010] QDC 334
•1 September 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Weston v Bradford [2010] QDC 334
PARTIES:
HOWARD MERVYN WESTON
(APPELLANT)V
CLAYTON BRADFORD
(RESPONDENT)FILE NO/S:
946 of 2010
DIVISION:
Appeal from Magistrates Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court
DELIVERED ON:
1 September 2010
DELIVERED AT:
Brisbane
HEARING DATE:
27 August 2010
JUDGE:
Dorney QC, DCJ
ORDER:
- Appeal dismissed.
- Liberty to make submissions on costs by 4:00pm on 8 September 2010
CATCHWORDS:
APPEAL – MAGISTRATES COURT – whether error on question of law.
Administrative Appeals Tribunal Act 1975 (Commonwealth), section 44(1)
Criminal Code, section 24
Queensland Civil and Administrative Tribunal Act 2009, sections 244, 267 and 268
Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009, section 1622, 1623, 1624
Weapons Act 1990, sections 147, 148 and 149
Australian Securities and Investment Commission v Saxby Bridge Furniture Planning Pty Ltd & Ors (2003) 133 FCR 290
Commissioner for Children and Young People and Child Guardian v Brittain [2009] QDC 112
COUNSEL:
G. Forward for the Appellant
S. McLeod for the Respondent
SOLICITORS:
(Direct Professional Access for the Appellant)
Q.P.S. Solicitor for the Respondent
Introduction
The appellant held a Firearms Licence and a Collectors Licence (Weapons). Both those licences were revoked by letter dated 17 June 2008 from the Weapons Licensing Branch (“WLB”) under the hand of the respondent. That letter stated that that Authorised Officer was satisfied that the appellant was no longer a fit and proper person to hold those licences. After unsuccessfully appealing to the Magistrates Court by Notice of Appeal dated 14 July 2008, the appellant now appeals to this court by Notice of Appeal dated 26 March 2010.
By reason of the s 149 of the Weapons Act 1990 (“W Act”), an appeal to this court is “only on a question of law”.
Since, for the reasons outlined below, the appellant has not been able to satisfy the requirement that a question of law relevantly can be established, the appeal must be dismissed.
Transitional provisions
The relevant provisions permitting an appeal to the District Court were repealed by the Queensland Civil and Administrative Tribunal (Jurisdiction Provisions) Amendment Act 2009: see ss 1622 to 1624 (inclusive). The amendment was effective from 1 December 2009 but the transitional provisions in the Queensland Civil and Administrative Tribunal Act 2009 concerning continuing entities relevant to this appeal allow the appeal to be continued, and heard, as if the repeal had not been enacted: see ss 267 and 268, and the definition of “continuing entity” in s 244.
Relevant legislative provisions for appeal
By s 147(1) of the W Act, the appeal to the Magistrates Court is to be by way of rehearing “unaffected by the decision appealed against”. In deciding an appeal, by force of s 147(2)(a), that court is not bound by the rules of evidence.
Because it was agitated during argument, having been adverted to in the written submissions, it should be noted that s 159 of the W Act states that the Criminal Code, with all necessary adaptations, is to be read and construed with the W Act.
Lastly, s 148(1)(a) of the W Act permits that court, in deciding an appeal, to confirm the decision appealed against.
Relevant law
Counsel for the respondent drew the court’s attention to a detailed consideration of the meaning to be given to the term “on a question of law” by Branson J in the Full Court of the Federal Court decision of Australian Securities and Investment Commission v Saxby Bridge Furniture Planning Pty Ltd & Ors (2003) 133 FCR 290. Jacobsen and Bennett JJ, although expressing different views about some other issues, did not dissent from the analysis undertaken by Branson J of the relevant statutory provisions of the Administrative Appeals Tribunal Act 1975 (Commonwealth) concerning appeals “on a question of law”. Branson J stressed the narrowness of the term “on” when used in association with a question of law, noting that the existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself: at 300 [42], citing relevant authority.
More importantly, Branson J in Saxby Bridge noted that the grounds, as formulated, did not indicate how reliance was placed on the stated questions of law to support the orders sought, because such grounds were simply statements to the effect that the tribunal below made legal errors sought to be identified by the stated questions of law: at 301 [46] – [47]. A not dissimilar approach has been adopted by the appellant in this case. Here, the Notice of Appeal merely states that the grounds are:
· “The magistrate erred in law.
· The magistrate made findings of fact and law contrary to the evidence.”
The appellant’s Outline of Argument does attempt to be a bit more specific. Nevertheless, for reasons which will be developed below, it does not meet the threshold of establishing that there has been any relevant error “on a question of law”.
With respect to the meaning of that term, McGill DCJ in Commissioner for Children and Young People and the Child Guardian v Brittain [2009] QDC 112 succinctly stated the relevant propositions as they apply here, by way of the following itemisation:
· an erroneous finding of fact will not necessarily reveal an error of law which vitiates the decision of a Tribunal;
· but the making of findings of fact without any evidence to support them, or the drawing of inferences which are not supported by the primary facts found or agreed, will be an error of law;
· in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising any statutory power; and
· it follows that it is unlikely that a submission that insufficient weight was given to a particular consideration will expose an error of law;
at [16].
Appellant’s Outline of Argument
The primary argument advanced in the written submissions was that the Magistrates Court should have found that the appellant was, at all material times, acting as an agent in relation to the transportation of firearms. This issue arose because the original decision maker had stated that he was satisfied that the appellant had contravened a condition of his license in that he unlawfully took possession of and transported weapons when the conditions of the licences did not authorise such possession or transport.
In part the submission was based upon s 2(1)(l) of the then applicable W Act which stated that the Act did not apply to a person who was actually engaged in the transport under consignment of merchandise for or on behalf of the licensed dealer in respect of possession of merchandise consigned thereto or therefrom: see subparagraph (i).
Further, the appellant argued that the Magistrates Court failed to consider the relevant provisions of s 159 of the W Act, and therefore failed to apply s 24 of the Criminal Code, such that it ought to have found that the appellant had an honest and reasonable, but mistaken, belief that he was the relevant authorized agent. Lastly, the submissions contended that the Magistrates Court’s findings of fact were against the “weight of the evidence” and that it gave disproportionate weight to the appellant’s prior convictions. With respect to the former, it was contended that the evidence of the relevant sale was not admissible against the appellant as it was hearsay.
Respondent’s written submissions
The respondent submitted that: the Magistrates Court had noted the argument concerning agency but that, having regard to the totality of the evidence, then made the factual finding against the existence of such agency; it was open to make that finding on the evidence; and, in so finding, the evidence was analyzed in an orthodox manner.
Further, with respect to reliance upon s 24 of the Criminal Code, it was contended that this was misconceived when regard was had to the evidence on the issue.
With respect to the hearsay contention of the appellant, the respondent pointed out that the relevant appeal provisions permitted the Magistrates Court to draw such inferences on the evidence that were logically probative in circumstances where it was not bound by the rules of evidence.
Finally, with respect to the contentions about disproportionate weight, such weight was asserted to be a matter for the Magistrates Court itself to determine.
Consideration of appeal issues
The Reasons for Decision given by the learned Acting Magistrate on 26 February 2010 covered some 21½ pages. It referred to appearances for the purposes of obtaining evidence over five days in 2008 and 2009. It considered the witnesses who were called, it considered the relevant legislation and it made relevant findings concerning the evidence and the law.
During oral argument presented by the appellant, through his counsel, this court was not directed to anything which fell within the meaning of the term “on a question of law”. For the reasons canvassed above concerning the relevant tests, the Acting Magistrate had evidence before him from which he could make the findings that he did on the question of agency. In particular, at page 20 of the Reasons, he considered the evidence of both Mr Franks and Mr Toms in terms of it refuting the appellant’s claim that he transferred the weapons as, or only as, the agent of one or both of them, noting that both of those persons denied that they appointed the appellant as their agent. Specifically with respect to the submission that the agency issue could be inferred as a matter of law, the learned Acting Magistrate stated that if he accepted the evidence of Mr Franks and Mr Toms on the issue – which he did – then it could not. A clearer consideration of the issue would be difficult to ascertain.
During oral argument presented by the appellant, I was taken to the evidence of Mr Beaton. Although it is true, as contended, that Mr Beaton stated that the appellant had been paid for “militaria” that he bought, there is nothing inconsistent between that and the allegations concerning the “purchase” of “firearms”, particularly when it was open to the learned Acting Magistrate to consider, as he did, the evidence in total of Mr Beaton in conjunction with the evidence of other relevant witnesses.
Importantly, the learned Acting Magistrate found that the appellant was the instigator, organiser and participant in the transportation of weapons “of his own volition”: see page 20 of the Reasons.
As for the issue of the effect of section 159 of the W Act, it is clear both from that provision itself and from the way in which the whole of the W Act is framed that the consideration of the Criminal Code is engaged only for proceedings for an offence. In contrast, what was considered here is simply whether a certain set of facts existed (as was also purported to be found by the Authorised Officer of the Weapons Licensing Branch). The particular appeal to the Magistrates Court was not in any way a proceeding for an offence. Consequently, s 159 has no application in these circumstances.
Even if s 159 of the W Act were to be held to be applicable, it is clear from the detailed consideration of all the evidence by the Acting Magistrate that he would not have found that there was any mistaken belief on the appellant’s part.
As for the matter of hearsay, it is clear from the consideration undertaken by the Acting Magistrate that he reached the decision with respect to the selling of firearms on the basis of accepting relevant evidence (including drawing relevant inferences from that evidence and drawing relevant inferences from evidence that was otherwise logically probative where it otherwise might have been inadmissible under the rules of evidence). As observed by Keane JA in Lillywhite v Chief Executive, Liquor Licensing Division, D of T, FT & WID [2008] QCA 88, “it is not the case that the (Magistrates Court) should act on the premise that the Rules of Evidence apply unless, for sound reason, their application is dispensed with…(as) such an approach imposes a procedural limitation… which is not to be found in the language of the evidentiary provision and, indeed, is inconsistent with it”: at [34].
With respect to the matter of disproportionate weight, as observed from authority considered earlier, there is no substance in that ground.
Conclusions
Given the restrictive nature of an appeal of this kind, and given the detailed consideration undertaken by the Acting Magistrate in the appeal to the Magistrates Court, there is no “ground” (as elaborated in the written submissions) which can be sustained in this appeal.
Accordingly, the appeal must be dismissed.
Orders
The appeal is dismissed.
Since no party has had the opportunity to address this court on the issue of costs, both parties are given seven days from the date of this decision to file written submissions on costs. But it should be borne in mind that, statutory impediments apart, costs will ordinarily follow the event.
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