Applicant TUV v Queensland Police Service – Weapons Licensing [2022] QCAT 188

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Applicant TUV v Queensland Police Service – Weapons Licensing [2022] QCAT 188 PARTIES: APPLICANT TUV (applicant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO: GAR085-22 MATTER TYPE: General administrative review matters DELIVERED ON: 20 May 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: 1. The application to stay a decision filed on 14 March 2022 is refused. 2. Publication of the applicant’s name, other than to the parties to this proceeding, is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act 2009. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application filed to review decision suspending applicant’s firearms licence – where applicant seeking stay of suspension – whether arguable case Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22, s 66 Weapons Act 1990 (Qld), s 28 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 REPRESENTATION: Applicant: Self-represented Respondent: D Ayscough APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and -- 1 of 4 -- 2 Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] On 18 February 2022, the Queensland Police Service – Weapons Licensing (‘QPS’) decided to suspend the applicant’s firearms licence. [2] On 14 March 2022, the applicant lodged an application to review with the Tribunal. On the same day, he also lodged an application to stay the decision under review. Suspension and revocation of firearms licences [3] Section 28 of the Weapons Act 1990 (Qld) (‘the Act’) give an authorised officer the power to suspend a firearms licence. It relevantly provides: (1) An authorised officer may, by a suspension notice given to a licensee, suspend the licence if the authorised officer— … (b) considers, on reasonable grounds, that the licensee may no longer be a fit and proper person to hold a licence. (2) The licence is suspended until— … (c) if subsection (1)(b) applies—the earlier of the following days— (i) the day the authorised officer is satisfied the person is a fit and proper person to hold a licence and lifts the suspension; (ii) the day 90 days after the licence is suspended. Grounds for granting a stay [4] The Tribunal’s power to grant a stay of a reviewable decision is to be found in s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The Tribunal may grant a stay if it considers the order is desirable after having regard to the factors set out in sub-section (4): (a) the interests of any person whose interests may be affected by the making of the order or the order not being made; (b) any submissions made to the tribunal by the decision-maker for the reviewable decision; (c) the public interest. [5] The Tribunal, in considering stay applications, also takes into account the tests applied by the courts in respect of stay applications. The tests for the granting of a -- 2 of 4 -- 3 stay were set out by Jerrard JA in Elphick v MMI General Insurance Ltd & Anor as follows:1 To succeed on an application for a stay the applicants must show good reason for the stay to be granted and that it is an appropriate case in which to grant a stay. Those authoritative decisions in this court establish that an applicant should demonstrate: • A good arguable case on appeal. • That the applicant will be disadvantaged if a stay is not ordered. • That competing disadvantage to the respondent should the stay be granted, does not outweigh the disadvantage suffered by the applicant if the stay not be granted. The applicant’s mental health [6] The applicant has provided the Tribunal with a number of reports relating to his mental health. [7] In a report dated 12 January 2022, the applicant’s consultant psychiatrist Dr Kelly Schilling wrote: Self-reported depressive symptoms in the context of increased dose of Fluoxetine which he is tolerating well. I can see no reason to change his medication at this point. Is engaged with his Psychologist and does not think he needs Psychiatric follow-up. I do think there is a risk of deterioration in mood and increase in distress if his attempts at repairing his family relationships fail and review would be indicated in this context, I have indicated that I would be happy to provide this in future if necessary. While his reported history and presentation did not raise clear concerns about imminent risks associated with owning firearms, given the above additional information I would be concerned if firearms were returned to the home that in periods of marked distress he would be at risk. However, my opinion is based only on a single interaction. [8] In a report dated 29 January 2022, the applicant’s psychologist Ms Simona Cudimanova wrote that ‘[t]here was no reported risk to self or others’. [9] In a report dated 2 August 2021, Logan Community Mental Health wrote: [The applicant] admitted to calling his wife this morning (separated about 3/12 ago) in hopes to speak with her and try to arrange for them to talk about their relationship, however he states that she is refusing to answer his calls and that he got upset and frustrated and said that he felt suicidal, however this was said without any intent. He stated he has no plans or intent. He describes a relationship of 26 years which appears to have broken down this year resulting in her leaving about 3/12 ago and that she is staying with her adult children. He reports that they have previously tried relationship counselling, but that she became irritable with the process, ‘blaming me’ and refused to continue with it. He states that she remains angry with him and only selectively answers any messages he sends. He reports nil intention to ever suicide reporting his son Jason as protective and that ‘no matter what I could never do that’. 1 [2002] QCA 347, [8] (footnotes omitted). -- 3 of 4 -- 4 [10] The applicant’s general practitioner Dr John Houghton declined to provide a report in support of the application. Consideration Good arguable case [11] The medical evidence provided by the applicant is to some extent conflicting. The reports from Logan Community Mental Health and Ms Cudimanova are indicative of a low risk of harm to self or others, but no not address the issue of firearms. Dr Schilling does address the issue of firearms, and opined that she would be concerned if firearms were returned to the home. [12] I emphasise that it is not the Tribunal’s role to determine the merits of the review in deciding a stay application. The applicant will have an opportunity to present further evidence and material which may be relevant to the review application before a final hearing. However, based on the material before the Tribunal to date, I consider that the medical evidence does not support ending the suspension of the applicant’s firearms licence. Person whose interests may be affected by making the order [13] The applicant is a person whose interests are affected by making the order. There is no evidence before the Tribunal that he relies on a firearms licence for his livelihood. Public interest [14] The principles of the Act include a statement in s 3(1)(a) that ‘weapon possession and use are subordinate to the need to ensure public and individual safety’. [15] I consider that the public interest would require a stay of the suspension decision to be refused in circumstances where the medical evidence raises concerns about returning firearms to the home. Disposition [16] In order to issue a stay, I must be satisfied that it is desirable to do so. In the circumstances of this matter, the public interest in paramount. I consider that the risk to public safety outweighs any impact on the applicant. [17] It follows that I am not satisfied that it is desirable to issue a stay. The application to stay a decision is therefore dismissed. [18] Given the applicant’s psychological conditions, I order that the publication of his name, be prohibited other than to the parties to the proceeding pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 4 of 4 --