Cockerton v Queensland Police Services – Weapons Licensing [2025] QCATA 6

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cockerton v Queensland Police Services – Weapons Licensing [2025] QCATA 6 PARTIES: DALE ROBERT COCKERTON (applicant/appellant) v QUEENSLAND POLICE SERVICES – WEAPONS LICENSING (respondent) APPLICATION NO/S: APL036-24 ORIGINATING APPLICATION NO/S: GAR825-23 MATTER TYPE: Appeals DELIVERED ON: 28 January 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Fitzpatrick Member Bishop ORDERS: Leave to appeal is refused. The appeal is dismissed. CATCHWORDS: APPEALS – GENERAL ADMINISTRATIVE REVIEW – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW AND/OR FACT – where the applicant’s weapons licence was revoked by the respondent – where the applicant applied to the Tribunal for review and to stay the original decision – where stay was refused – where applicant applied for leave to appeal or appeal the decision to refuse the stay – whether leave should be granted. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22(4), s 142(3)(a)(ii) Weapons Act 1990 (Qld), s 3(1)(b), s 29 Australian Coal and Shale Employees’ Federation v Commonwealth of Australia (1953) 94 CLR 621 CFD v Queensland Police Service – Weapons Licensing [2017] QCAT 372 House v R (1936) 55 CLR 499 Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 -- 1 of 5 -- 2 Palmer v Queensland Police Service Weapons Licensing Branch [2010] QCAT 149 R v Dib (1991) 52 A Crim 64 Rintoul v State of Queensland & Ors [2018] QCA 20 APPEARANCES & REPRESENTATION: 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 Background [1] On 10 November 2023, the Queensland Police Service – Weapons Licensing (QPS) made a decision to revoke the applicant Mr Cockerton’s firearms licence pursuant to s 29 of the Weapons Act 1990 (Qld) (‘the Act’). The authorised officer of the QPS determined Mr Cockerton was no longer a fit and proper person to hold a weapon’s licence as it was not in the public interest for him to do so. The QPS’ Information Notice and Statement of Reasons1 relevantly stated: I am of the opinion you are not a fit and proper person to retain a firearm licence. I note on 2/11/2023 Police attended your address in relation to a domestic and family violence incident. I note during the incident your son, who is not a weapon’s licence holder, has gained access to your shotgun which was strapped to a quad bike, and utilised it to threaten suicide. I note that you had to wrestle the gun away from him. You admitted to Police that you strap the shotgun to the quad bike when you go down to the farm and take it off when you return. However, that morning when you returned from the farm you did not place the shotgun back into secure storage, instead went and watered the garden, leaving it accessible to your unlicenced son. … Taking into consideration the seriousness of the incident, and your proven disregard for firearms’ licensing legislation, I have determined that it is not in the public interest for you to continue to hold a firearm licence. [2] On 21 November 2023, Mr Cockerton filed an application to review the decision and filed an application to stay the decision. [3] On 14 December 2023, the Tribunal refused Mr Cockerton’s application to stay the decision and gave written reasons for that decision (‘the Stay Decision’). [4] On 2 February 2023, Mr Cockerton filed an application for leave to appeal or appeal the Stay Decision. Application for leave to appeal the Stay Decision [5] Under s 142(3)(a)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) the applicant requires leave to appeal before the appeal can be determined. 1 See Application to review a decision Attachment C filed on 23 November 2023. -- 2 of 5 -- 3 [6] To be granted leave to appeal, Mr Cockerton must show that: (a) the appeal is necessary to correct a substantial injustice; and (b) there is a reasonable argument that there is an error to be corrected.2 [7] It is also a relevant consideration that the Stay Decision resulted from the exercise of the Member’s discretion. Mr Cockerton must overcome a strong presumption that such a decision is correct.3 Reasons for the Stay Decision [8] The Member identified the tests for considering a stay application by reference to s 22(4) of the QCAT Act and the common law. [9] The Member referred to Mr Cockerton’s submission that he was no more than five metres from the firearm, that it was in his sight and control at the time of the incident and that the firearm was not “unattended”. The Member also noted Mr Cockerton’s submission that it is not necessary to have something in one’s hand for it to be in one’s physical control, citing the case of R v Dib4 as authority for the proposition that ‘control must be to the exclusion of others’, which was done, save for Jake. [10] The Member did not think that was sufficient to demonstrate a good arguable case and in fact thought that it showed a lack of insight into an incident which could have had a tragic outcome. [11] The Member also noted the evidence that Mr Cockerton’s son held a firearms licence in the Northern Territory. The Member said that there is no evidence the son was licenced in Queensland where the incident occurred. [12] Relevant to both the consideration in s 22(4)(a) and the balance of convenience at common law, the Member turned his mind to Mr Cockerton’s interests which may be affected by not ordering a stay, and the public interest. The Member said that other than a claim that a firearm is required for occupational purposes, no information was provided as to financial detriment. The Member concluded that public safety is paramount in terms of the objects of the Act and that the risk to public safety outweighs any impact on Mr Cockerton. Grounds of Appeal [13] Mr Cockerton submits the Member made the following errors: (a) failing to acknowledge that Mr Cockerton had possession of his firearm; and misinterpreted the legal principle of R v Dib5 and the Act; (b) failing to acknowledge Mr Cockerton’s and Mr Cockerton’s son’s legitimate occupational requirement to hold a licence; (c) overlooking the requirements under s 22(4)(a) of the QCAT Act to consider the interest of the person affected by the order. This required a balancing between 2 Rintoul v State of Queensland & Ors [2018] QCA 20 [10]. 3 Australian Coal and Shale Employees’ Federation v Commonwealth of Australia (1953) 94 CLR 621 [627] (Kitto J). 4 (1991) 52 A Crim 64. 5 Ibid. -- 3 of 5 -- 4 the public interest and an individual’s hardship, including financial detriment; and (d) failing to consider the circumstances surrounding acceptance of a caution, which impacted the weight assigned to the incident. [14] We deal now with the first two grounds of appeal. [15] The Member’s task in making the Stay Decision was to consider if the evidence demonstrated a good arguable case. He did not think that it did. That was a conclusion available to him given the asserted facts that the firearm was not in secure storage and that it was taken from the back of a quad bike by his son in a suicide attempt, whilst Mr Cockerton went to water his garden. [16] The Member was not required to make a finding that Mr Cockerton had possession of the firearm at the time or to make findings of fact. Those are matters for the ultimate review. [17] We do not consider that the Member erred in his conclusion that no good arguable case was shown, given the alleged factual basis of the decision to revoke Mr Cockerton’s firearm’s licence. The Member’s conclusion was not so unreasonable or plainly unjust that the Appeal Tribunal may infer that there has been a failure to properly exercise the Member’s discretion, giving rise to a substantial injustice.6 Nor, with respect to Mr Cockerton’s first two grounds of appeal has there been any error which should be corrected by the Appeal Tribunal, given the broad discretion available to the Member. [18] The third and fourth grounds go to Mr Cockerton’s interests and where the balance of convenience might lie. [19] We note that the Member said that he had no information as to income or financial detriment from loss of Mr Cockerton’s licence. The Member had before him a signed statement from Mr Cockerton and a profit and loss report for 2019/2020 and for 2020/2021 with respect to his fish farming venture. Mr Cockerton stated that in 2019/2020 the farm faced significant challenges from a substantial number of cormorants posing a threat to their fish stock. Despite efforts of frequent patrol and scaring attempts, there was a substantial decline in fish numbers. Mr Cockerton then escalated his efforts using firearms to frighten the birds resulting in longer intervals between invasions and, at times, a permanent deterrent. Mr Cockerton submits the farm’s profits increased by $70,000 because of the use of firearms. Mr Cockerton submitted that without the use of firearms, the farm is now unable to control a large influx of birds. [20] The Appeal Tribunal acknowledges Mr Cockerton did provide information about income and possible future financial detriment from loss of his licence. The Member was in error to say that no evidence of income was before him. He did however say that there was no evidence of financial detriment before him, which we take to mean actual financial detriment as at the date of the application for a stay. We do not think that failing to refer to the evidence as to possible loss of income undermines the Member’s ultimate conclusion that public safety is paramount.7 The Member was 6 House v R (1936) 55 CLR 499 (‘House v R’); Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 (‘Kazal v Thunder Studios’) [145]. 7 Weapons Act 1990 (Qld) s 3(1)(b). -- 4 of 5 -- 5 entitled to prefer the competing interest of public safety for the purposes of a stay application.8 [21] We do not consider that the Member’s conclusion was so unreasonable or plainly unjust that the Appeal Tribunal may infer that there has been a failure to properly exercise the Member’s discretion, giving rise to a substantial injustice.9 Nor, with respect to Mr Cockerton’s third and fourth grounds of appeal has there been any error which should be corrected by the Appeal Tribunal, given the statutory imperative to prefer public safety. [22] Mr Cockerton has made further submissions estimating his overall financial loss attributable to the loss of his firearm’s licence is $886,200. However, Mr Cockerton did not provide source documents to support that submission, nor has he made an application to produce fresh evidence with his application for leave to appeal. Evidence of financial detriment is a matter for Mr Cockerton to prove upon the ultimate review. [23] Mr Cockerton’s final ground of appeal is that the Member failed to consider the circumstances surrounding his acceptance of a caution. We note that the Member did not rely on the caution as a basis for his finding that there was no reasonably arguable case nor that the balance of convenience did not favour Mr Cockerton. We do not consider that an error has occurred in the Member’s reasoning to justify the grant of leave to appeal. Conclusion [24] The Member’s decision is interlocutory. It does not determine the substantive merits of Mr Cockerton’s application for review. Where the Member observed that there was a lack of evidence Mr Cockerton has an opportunity to fully prepare his case for a fresh hearing on the merits in order that the correct and preferable decision is reached. [25] It is also relevant to observe as has been said many times by the Appeal Tribunal, an appeal is not an opportunity to run a better case on a second attempt, the object is to correct error. [26] The Member has a broad discretion in determining the stay application. We do not consider that his discretion has miscarried. [27] Leave to appeal is refused. The application for leave to appeal or appeal is dismissed. 8 CFD v Queensland Police Service – Weapons Licensing [2017] QCAT 372 [34]-[36]; Palmer v Queensland Police Service Weapons Licensing Branch [2010] QCAT 149. 9 House v R (n 6); Kazal V Thunder Studios Inc (n 6) [145]. -- 5 of 5 --