Poole v Queensland Police Service Weapons Licensing

[2019] QCAT 25

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:  Poole v Queensland Police Service - Weapons Licensing

[2019] QCAT 25

PARTIES:  GARRY DAVID POOLE

(applicant)

v

QUEENSLAND POLICE SERVICE - WEAPONS LICENSING

(respondent) APPLICATION NO/S:       GAR430-18

MATTER TYPE:              General administrative review matters DELIVERED ON:   11 February 2019

HEARING DATE:            On the papers HEARD AT:         Brisbane

DECISION OF:                Member Kanowski

ORDERS:  1. The application by Garry David Poole, filed on 4

January 2019, for an extension of time to make the application to review a decision filed on 30 November 2018 is refused.

2.       The application by Garry David Poole, filed on 28 November 2018, for a stay of the decision to be reviewed is refused.

3.       The application to review a decision filed by Garry David Poole on 30 November 2018 is dismissed.

CATCHWORDS:             ADMINISTRATIVE     LAW     –    ADMINISTRATIVE

TRIBUNALS      –     QUEENSLAND     CIVIL     AND

ADMINISTRATIVE TRIBUNAL – where application to review a decision filed out of time – whether extension of time should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33, s 61

Anderson-Barr v Queensland Building and Construction Commission [2018] QCAT 438

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Sergeant D Ayscough

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the

Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

Introduction

1. Mr Poole has applied for an extension of time to bring a proceeding in QCAT for the review of a decision of Queensland Police Service - Weapons Licensing.

2. Mr Poole is a primary producer who wishes to have a licence for a short arm weapon to eradicate vermin and euthanise stock. He argues that a long arm weapon is impractical because of the size and terrain of his property.

3. Mr Poole filed in QCAT an application to review a decision on 30 November 2018. He identified the decision that he wished to be reviewed as one made by Queensland Police Service - Weapons Licensing on 20 March 2018 to reject an application for a permit to acquire. Mr Poole had also filed in QCAT, on 28 November 2018, an application for an order staying the decision of Queensland Police Service - Weapons Licensing, pending the completion of the Tribunal’s review.

4. As the application to review a decision was filed late – outside the 28 day period allowed – the Tribunal directed Mr Poole on 18 December 2018 to file an application for an extension of time to bring the proceeding. He did so on 4 January 2019. On 10 January 2019, Queensland Police Service - Weapons Licensing filed submissions opposing an extension of time.

5. Mr Poole has provided correspondence from Queensland Police Service - Weapons Licensing dated 20 March 2018 about the decision that he wants reviewed. There is no suggestion that Mr Poole did not receive the notice soon after that date.

6. Curiously, however, Queensland Police Service - Weapons Licensing in their submissions, treat the decision in question as one made on 18 October 2017 to reject an application for a concealable firearms licence.

7. It seems that there are probably two related decisions. For present purposes, the Tribunal will assume that Mr Poole would like to have both reviewed.

Legal framework

1. An application to review a decision must be filed in QCAT within 28 days of the day on which the applicant was notified of the decision.1 However, the period may be extended by the Tribunal.2

2. A decision by the Tribunal about whether to extend time is discretionary, and may take into account any relevant factor. Factors typically considered are the length of the delay, the explanation for the delay, whether the applicant appears to have an arguable case, any prejudice to the other party, and whether, overall, it is in the interests of justice to extend time.3

Should an extension of time be granted?

The arguments of the parties

1. Mr Poole’s explanation for the delay is that since the decision in question was made, he acquired an adjoining property of almost 6,000 acres in May 2018, so that the total area of his enterprise is now almost 9,000 acres. The new property is hilly and well- timbered, making the use of a long arm weapon particularly impractical, he argues, as he gets about on horses and quad bikes.

2. Queensland Police Service - Weapons Licensing argues that the preferable course, instead of an extension of time for a QCAT review, would be for Mr Poole to lodge a new application, so that a fresh determination can be made based on the new set of circumstances.

   Discussion

3. For present purposes, it is reasonable to proceed on the basis that Mr Poole has an arguable case. Additionally, there is no obvious prejudice to Queensland Police Service - Weapons Licensing, such as the unavailability of witnesses.

4. However, I do consider that Queensland Police Service - Weapons Licensing has raised sound arguments against granting an extension of time. There has been a considerable delay. The basis upon which Mr Poole seeks an extension of time is that his circumstances have significantly changed since the decision in question was made. In my view, the more logical approach for all concerned would be for Mr Poole to test his eligibility based on his new circumstances, by lodging a fresh application to Queensland Police Service - Weapons Licensing for the relevant licence. It does not seem to be a sensible use of resources for the Tribunal to conduct a review when Queensland Police Service - Weapons Licensing has not had an opportunity to assess the new circumstances. If Mr Poole is successful in a new application to Queensland Police Service - Weapons Licensing, a review by the Tribunal will not be necessary. On the other hand, if Mr Poole is not successful, he can then exercise his right to have the decision reviewed.

1. QCAT Act s 33.

2. QCAT Act s 61.

3. Adapted from Anderson-Barr v Queensland Building and Construction Commission [2018] QCAT 438, 3[8].

1. I will therefore exercise the discretion to refuse the application for an extension of time. The application to review a decision must therefore be dismissed.

Should the stay application be granted?

1. A stay could properly be ordered only in connection with a subsisting application to review a decision, under section 22 of the QCAT Act. Accordingly, I will dismiss the stay application.

2. Even if there was an ongoing application to review a decision, it does not seem that a stay order could have achieved anything tangible for Mr Poole. A stay order can be effective where the decision to be reviewed is one to cancel or suspend a licence. However, it will not be effective where the decision to be reviewed is to reject an application for a licence or permit. This is because a stay order would not operate to positively grant the licence. It would merely leave the application for the licence unresolved.

Conclusion

1. For the reasons explained, I have decided to refuse Mr Poole’s application for an extension of time, and his application to stay a decision. The application to review a decision will be dismissed because it was not brought in time, and the extension of time application has been refused.