Bourne v Queensland Police Service – Weapons Licensing [2023] QCATA 7

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bourne v Queensland Police Service – Weapons Licensing [2023] QCATA 7 PARTIES: DUNCAN JAMES BOURNE (applicant/appellant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO/S: APL352-21 ORIGINATING APPLICATION NO/S: GAR117-21 MATTER TYPE: Appeals DELIVERED ON: 27 January 2023 HEARING DATE: 29 September 2022 HEARD AT: Brisbane DECISION OF: Senior Member Aughterson ORDERS: Leave to appeal is refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – applicable principles – where applicant sought extension of time to file application to review decision by respondent to revoke weapons licence – where decision letter sent by registered post – where substantial delay in filing application to review decision – whether leave to appeal should be granted – whether error in exercise of discretion – whether Tribunal erred in finding as to when decision letter received – whether Tribunal erred in finding that there was no satisfactory explanation of the delay Acts Interpretation Act 1954 (Qld), s 39A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33, s 61, s 142 Berry v Treasure [2021] QCATA 61 Bourne v Queensland Police Service – Weapons Licensing (Queensland Civil and Administrative Tribunal, Member Cranwell, 18 October 2021, GAR117-21) Burke v Commissioner of Police [2019] QCA 158 -- 1 of 5 -- 2 Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70 Pickering v McArthur [2005] QCA 294 APPEARANCES & REPRESENTATION: Applicant/Appellant: Self-represented Respondent: Sergeant Ayscough, Queensland Police Service – Weapons Licensing REASONS FOR DECISION [1] The question on this appeal is whether the decision of the Tribunal at first instance, in refusing an extension of time to file an application to review the decision of the respondent to revoke the applicant’s (appellant on appeal) weapons licence, should be set aside. [2] Subsequent to the filing of the application for leave to appeal or appeal, the respondent filed an application to dismiss or strike out the proceedings. It was directed that both the latter application and the application for leave to appeal or appeal be heard together. At the hearing of the appeal, the respondent withdrew the strike out application. [3] Given that the decision of the Tribunal in refusing an extension of time was not a ‘final decision’ in the proceeding,1 leave to appeal is required.2 Generally, leave will be granted only where it is necessary to correct a substantial injustice to the applicant or there is a question of general importance upon which further argument and a decision of the appellate court or tribunal would be to the public advantage, and where there is a reasonable argument that there is an error to be corrected.3 [4] In relation to factors to be considered in exercising the discretion to extend time, in Harper Property Builders Pty Ltd v Queensland Building and Construction Commission,4 it was stated (footnote omitted): [26] Whilst recognising that the discretion to extend time is unfettered (except to the extent that s 61 of the QCAT Act precludes such an extension when it would cause prejudice or detriment, that could not be remedied by an appropriate order for costs or damages), the following matters have been recognised in the above cases as particularly relevant considerations in such exercises: (a) the length of the delay; (b) the adequacy of explanation for the delay; (c) the merits of the proceeding sought to be litigated; 1 See Harper Property Builders Pty Ltd v Queensland Building and Construction Commission [2018] QCATA 70, [3]-[8]. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(ii). 3 Pickering v McArthur [2005] QCA 294; Burke v Commissioner of Police [2019] QCA 158, [10]-[11]; Berry v Treasure [2021] QCATA 61, [13]. 4 [2018] QCATA 70. -- 2 of 5 -- 3 (d) prejudice to others; and (e) the interests of justice (sometimes expressed as ‘general considerations of fairness’). [27] In the context of extending time for an appeal or review, commonly the central question addressed is whether there is any reasonable prospect of success in the proposed appeal. [5] Further, in relation to an appeal against the exercise of a judicial discretion, in Harper, it was stated (footnotes omitted): [97] The principles applicable in an appeal against the exercise of a judicial discretion have been recognised in many cases. [98] It is sufficient for present purposes to say that in an appeal against the exercise of a discretion an [appellate] Tribunal does not simply substitute the view that it would have taken if it had been in the place of the primary Tribunal. It will not interfere unless it reaches a clear conclusion that there has been some error of fact or law, and that the discretion has not been properly exercised. It is usually necessary to show that the primary Tribunal has acted on a wrong principle, or has been guided by extraneous or irrelevant matters; or mistaken the facts, or failed to take into account some material consideration, or that some error must be inferred because of the result is plainly unjust or unreasonable. [6] The grounds of appeal may be summarised as follows: (1) There was no proof that the decision letter was sent to the appellant by registered mail and, further, the letter was sent to an address that he had left. (2) The delay was only 14 days and there was a reasonable explanation for that delay. (3) The application to review has merit. (4) There would be no prejudice to either party to allow the extension. [7] Section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that an application to review must be filed within 28 days of being notified of the decision, though time can be extended by virtue of s 61 of the QCAT Act. Ground 1 [8] Ground 1 of the appeal is that there was no proof that the decision letter was sent to the appellant by registered mail and, further, the letter was sent to an address that he had left. [9] The original review application was filed on 18 February 2021. The Tribunal Member was entitled to accept the evidence of the respondent that the decision letter was sent to the appellant by registered post and, by virtue of the operation of s 39A of the Acts Interpretation Act 1954 (Qld), is taken to have been received by 5 August 2020. On that basis, the application to review was filed over six months after notification of the decision. [10] In relation to the change of address, it was a condition of the licence that a licensee notify the respondent of any such change. The appellant did not do so, but says that -- 3 of 5 -- 4 the change was meant to be only temporary. It remains that the decision letter was sent by registered post to the only address available to the respondent. [11] In any event, the Tribunal Member also noted that the appellant contacted the police on 9, 10, 11 and 22 December 2020, including to make a request that the decision to revoke his weapons licence be rescinded. The Tribunal Member found that the appellant ‘clearly knew about the revocation of his licence by 9 December 2020, and was advised of his right to apply to the Tribunal on 10 December 2020’;5 that is, over two months prior to the filing of the review application. The appellant was emailed the decision letter on 7 January 2021, which was 42 days prior to filing the review application. This was not contested on appeal. [12] This ground of appeal is rejected. Ground 2 [13] Ground 2 of the appeal is that the delay was only 14 days and there was a reasonable explanation for that delay. [14] The issue regarding the length of the delay is noted under ground 1 of the appeal. The Tribunal Member stated that on ‘the most favourable view’,6 the decision was emailed to the appellant on 7 January 2021, which would make the filing of the review application two weeks late. [15] The Tribunal Member discussed the given reasons for the delay, relating to family circumstances, including the pregnancy of the appellant’s wife, but noted that he was able to contact the police on several occasions in December 2020 in relation to the revocation decision, including stating that he would contest the decision. [16] No relevant error has been shown in the finding of the Tribunal at first instance; that is, that the Tribunal was not satisfied that there was a reasonable explanation for the delay, including given that he was deemed to have received the decision letter on 5 August 2020. This ground of appeal also is rejected. Ground 3 [17] Ground 3 of the appeal is that the application to review has merit. [18] In neither his written nor oral submissions does the appellant say why his case has merit. In his reasons for decision, the Tribunal Member stated that he was not in a position to make findings on the issues to be determined on the substantive review should an extension of time be granted, but that ‘in order to give Mr Bourne every benefit of the doubt, I will assume that his case has some merit’.7 [19] This ground of appeal also is rejected. Ground 4 [20] Ground 4 of the appeal is that there would be no prejudice to either party to allow the extension. 5 Bourne v Queensland Police Service – Weapons Licensing (Queensland Civil and Administrative Tribunal, Member Cranwell, 18 October 2021, GAR117-21), [14](b). 6 Ibid, [16]. 7 Ibid, [17]. -- 4 of 5 -- 5 [21] The Tribunal Member acknowledged the lack of prejudice and the possibility of some merit in the appellant’s case, but nevertheless concluded that he was ‘of the view that these factors are strongly outweighed by the interests of justice and the absence of a satisfactory explanation for what was a substantial delay’.8 [22] In relation to the interests of justice, as noted in Jensen v Queensland Building and Construction Commission:9 the legislative intent underlying the QCAT Act … is that review proceedings are to be commenced promptly. There is a strong public interest in complying with time limits, particularly in the context of administrative review when the review of decisions by public authorities often occurs at stages of a broader process … [23] This ground of appeal also is rejected. The reasons of the Tribunal Member appropriately addressed the issues raised. The submissions made by the appellant on appeal do not address any relevant error of law or fact which could be said to have infected the exercise of the Tribunal Member’s discretion. [24] There is no identifiable error or basis upon which the decision at first instance should be set aside. Leave to appeal is refused. 8 Bourne v Queensland Police Service – Weapons Licensing (Queensland Civil and Administrative Tribunal, Member Cranwell, 18 October 2021, GAR117-21), [20]-[21]. 9 [2017] QCAT 232, [113]. -- 5 of 5 --