Aitchison v Queensland Police Service – Weapons Licensing [2023] QCAT 45

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Aitchison v Queensland Police Service – Weapons Licensing [2023] QCAT 45 PARTIES: TODD ALLAN AITCHISON (applicant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO/S: GAR138-21 MATTER TYPE: General administrative review matters DELIVERED ON: 24 January 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Munasinghe ORDERS: 1. The Application to dismiss or strike out the proceeding is refused. 2. Proceeding GAR138-21 is listed for hearing on a date to be fixed. 3. The parties must not file further evidence in the proceeding or present such evidence at any future hearing of the matter, without leave of the Tribunal. CATCHWORDS: FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – RENEWAL AND OTHER MATTERS – review of decision to revoke firearms license under Weapons Act 1990 (Qld) – whether applicant is no longer a fit and proper person to hold a firearms license – whether licence should be revoked PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where respondent claimed failure by applicant to attend hearing and comply with Tribunal directions caused unnecessary disadvantage – whether applicant had a reasonable excuse for causing unnecessary disadvantage - -- 1 of 6 -- 2 whether proceeding should be dismissed or struck out under s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where Tribunal refused to dismiss or strike out proceeding Human Rights Act 2019 (Qld) s 31 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 48 Weapons Act 1990 (Qld), s 10B Property Three Pty Ltd v Kallar & Anor [2018] QCATA 127, considered Van Der Westhuizen v Samcol Homes Pty Ltd [2016] QCAT 384, considered 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 What is this application about? [1] The Queensland Police Service – Weapons Licensing (‘QPS’) applies to the Tribunal, to dismiss or strike out an application by Todd Allan Aitchison (‘Mr Aitchison’), requesting a review of QPS’ decision to revoke his firearms licence. QPS brings its dismissal/strike out application pursuant to s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Background [2] Mr Aitchison held a Firearms Licence 265611236 (‘the licence’) issued to him by the QPS on 15 October 2015. [3] On 23 February 2021, QPS revoked the licence under s 10B of the Weapons Act 1990 (‘decision’). [4] On 10 March 2021, Mr Aitchison applied to the Tribunal to review that decision (‘review application’). [5] Through his legal representative Jeff Horsey Solicitor, Mr Aitchison filed an affidavit, written submissions, and other material in support of his review application. [6] The matter proceeded to a compulsory conference (‘COCO’) on 3 August 2021 but did not resolve. At the conclusion of the COCO the Tribunal made a direction, inter alia, that: 1. Todd Allan Aitchison must file in the tribunal two (2) copies and give to the Queensland Police Service – Weapons Licensing one (1) copy of any further statements of evidence to be relied on, by 4.00 pm on 31 August 2021. [7] At further directions hearings on 6 September 2021 and 21 October 2021, the Tribunal made directions in terms materially similar to those made after the COCO. Those directions required Mr Aitchison to file further material he intended to rely on by a particular date. -- 2 of 6 -- 3 [8] Hereafter, I will refer to the Tribunal’s directions to file materials made on 3 August 2021, 6 September 2021 and 21 October 2021 collectively as ‘the filing directions’. Notwithstanding the filing directions, Mr Aitchison did not file further material in the Tribunal. [9] On 20 August 2022, the Tribunal issued QPS and Mr Aitchison with a Notice of Hearing (‘NOH’). The NOH informed both parties that the Tribunal intended to hear the proceeding on 29 August 2022. [10] At 1.38pm on 28 August 2022, Mr Aitchison’s lawyer emailed the Tribunal to advise that his client was unavailable to attend the hearing and couldn’t appear by telephone because he was in an area that lacked telephone coverage. The e-mail made no overt application for an adjournment. [11] The review application proceeded to a hearing on 29 August 2022. Mr Aitchison did not attend, however his lawyer appeared on his behalf by telephone and made an oral application to adjourn the proceeding. [12] During the hearing, QPS made an application for the proceeding be dismissed, or struck out, pursuant to s 48 of the QCAT Act (‘dismissal application’). The Tribunal adjourned the hearing and made directions for the dismissal application to be determined on the papers, based on the parties’ written submissions. The dismissal/strike out application [13] Section 48 of the QCAT Act empowers the Tribunal to dismiss or strike out a proceeding if it considers a party is acting in a way that unnecessarily disadvantages another party, including by: (a) Not complying with a Tribunal order without reasonable excuse;1 or (b) Failing to attend the hearing of the proceeding without reasonable excuse.2 [14] Before making an order under s 48 of the QCAT Act, I must have regard to: (a) The extent to which the party causing the disadvantage is familiar with the tribunal’s practices and procedures;3 (b) The capacity of the party causing the disadvantage to understand and act on the tribunal’s orders and directions;4 (c) Whether the party causing the disadvantage is acting deliberately.5 [15] Essentially, the QPS dismissal/strike out application contends: (a) Mr Aitchison did not comply with directions to file material the Tribunal made on 3 August 2021, 6 September 2021 and 21 October 2021, without reasonable excuse; and (b) Mr Aitchison failed to attend the oral hearing of the proceeding on 29 August 2022 without reasonable excuse. 1 Queensland Civil and Administrative Tribunal Act 2009, s 48(1)(a). 2 Ibid, s 48(1)(g). 3 Ibid, s 48(3)(a). 4 Ibid s 48(3)(b). 5 Ibid s 48(3)(c). -- 3 of 6 -- 4 [16] Although not specifically pleaded by QPS, I have also considered the applicability of s 48(1)(d) of the QCAT Act, which concerns unnecessary disadvantage occasioned by ‘causing an adjournment’. [17] Mr Aitchson responded to the dismissal application in written submissions to the Tribunal dated 10 June 2022. Those submissions contend that that the provision of just over one week notice in the NOH was inadequate because Mr Aitchson is an interstate truck driver and could not rearrange his diary to accommodate the hearing. Additionally, the submissions contend that Mr Aitchson’s lawyer had other Court events on the day of the hearing which could not be adjourned. [18] Further, I have listened to the audio recording of the adjourned hearing, at which Mr Aitchison’s lawyer made the following relevant submissions: (a) He became aware of the NOH on 22 April 2022. He unsuccessfully attempted to obtain instructions from his client on that day. (b) The weekend commencing 23 April 2022 was a long weekend. Therefore 22, 24 and 25 April 2022 were not business days. (c) Mr Aitchison’s occupation as an interstate truck driver put him “out of range”, which prevented him from obtaining instructions from Mr Aitchison until 28 April 2022. (d) Effectively, Mr Aitchison only had six business to prepare for and make himself available for the hearing. Did Mr Aitchison’s election to not file further material in the Tribunal unnecessarily disadvantage QPS? [19] I am not satisfied that QPS was unnecessarily disadvantaged by Mr Aitchison’s decision to not file further material in the proceedings. The terms of the filing directions are permissive rather than mandatory. They do not compel, or require, Mr Aitchison to file further material. Rather, they merely require Mr Aitchison to file any further material he intends to rely on by a particular date. [20] It ought to be noted that Mr Aitchison filed material in support of his application when the proceeding commenced. Any election to file further supporting material is a forensic decision that reposes solely with Aitchison and his lawyers. I am satisfied that there is sufficient material before the Tribunal, filed by both Aitchison and the QPS, to decide the review application. Did Mr Aitchison failure to attend the hearing of the proceeding unnecessarily disadvantage the QPS? [21] I consider Mr Aitchison’s failure to attend the oral hearing without making a timely application for an adjournment unnecessarily disadvantaged QPS. Mr Aitchison’s conduct put QPS to the expense and inconvenience of attended a hearing that did not proceed. Further, I do not consider that Mr Aitchison has a reasonable excuse for the disadvantage that he caused. Although I consider Mr Aitchison’s reasons for not attending the hearing to be prima face reasonable, he should have applied for an adjournment immediately, or soon after he received the NOH, by using the prescribed -- 4 of 6 -- 5 form6. At the very least, Mr Aitchison ought to have instructed his lawyer to take that step well in advance of the hearing. [22] Mr Aitchison was legally represented. Therefore, I am not satisfied his failure to apply for an adjournment in a timely way can be reasonably excused because of an unfamiliarity with tribunals practices and procedures, or a lack of capacity to understand and act on tribunal orders and directions. Should the Tribunal exercise its discretion to dismiss/strike out the proceedings? [23] Notwithstanding my findings above, I am not satisfied that Mr Aitchison conduct was so egregious that the proceeding ought to be dismissed or struck out. The exercise by the Tribunal of the power under s 48 of the QCAT Act is discretionary and I am mindful that it is a very serious step to deprive a party of a cause of action without a hearing on the merits, and extreme care must be taken before doing so.7 Although Mr Aitchison failed to promptly apply for an adjournment, the 6 business days afforded to him and his lawyer in the NOH was plainly inadequate. Against that background of that inadequate notice, dismissing the proceeding in circumstances where both Mr Aitchison and his lawyer were unable to fulsomely participate in the hearing, is antithetical to the objects of the QCAT Act that mandate the Tribunal to deal with matters in a way that is ‘accessible, fair and just’.8 [24] Further, I consider that dismissing the proceeding in such circumstances would unreasonably and unjustifiably limit Mr Aitchison’s right to have his proceeding decided by a competent, independent, and impartial court or tribunal after a fair and public hearing under s 31 of the Human Rights Act 2019 (Qld). [25] In Van Der Westhuizen v Samcol Homes Pty Ltd,9 in refusing to make an order under s 48, Senior Member Brown opined at [8] that unnecessary disadvantage must be of sufficient gravity to justify striking out the application or making a final decision in a proceeding in favour of the applicant. Concerning the present matter, Mr Aitchison’s conduct undeniably unnecessarily disadvantaged the QPS. However, I do not consider the disadvantage he caused to be of sufficient gravity to justify dismissing the application. [26] Accordingly, I decline to dismiss or strike out the proceeding. Next Steps [27] The QPS requests the following orders from the Tribunal if its dismissal/strike application is refused:10 (a) The review application is determined on the papers without an oral hearing; (b) No further material is filed in the proceeding without leave of the Tribunal; (c) No party will be allowed to present any evidence in the hearing that is not contained in the statements filed in the Tribunal without justifying the need for such additional evidence in the Tribunal. 6 See ‘Form 40 – Application for miscellaneous matters’ available on the QCAT website. 7 Property Three Pty Ltd v Kallar & Anor [2018] QCATA 127, [21], D J Forbes. 8 Queensland Civil and Administrative Tribunal Act 2009, s 3(b). 9 [2016] QCAT 384. 10 Written Submissions of the QPS, filed 20 May 2022, para 33. -- 5 of 6 -- 6 [28] Mr Aitchison has made plain his intention to not file further evidence.11 Further, the Tribunal has provided Mr Aitchison with several opportunities to file further evidence should he have chosen to do so. Accordingly, I am satisfied that orders restricting the filing, or presentation of further material at any future hearing, without leave of the Tribunal, are appropriate. [29] Mr Aitchison desires an oral hearing.12 I do not consider that he should be denied the opportunity to make oral submissions in respect of evidence presently before the Tribunal. In my opinion, restraining Mr Aitchison capacity to make oral submissions, impermissibly limits his right to a fair hearing under s 31 of the Human Rights Act 2019. Orders [30] For the reasons stated above, I make the following orders: (a) The Application to dismiss or strike out the proceeding is refused. (b) Proceeding GAR138-21 is listed for oral hearing on a date to be fixed. (c) The parties must not file further evidence in the proceeding, or present such evidence at any future hearing of the matter, without leave of the Tribunal. 11 Submissions of Jeff Horsey Solicitor, dated 10 June 2022, para 10 & 11. 12 Ibid, para 17. -- 6 of 6 --