[1] On 31 July 2023, the Queensland Police Service - Weapons Licensing ('the QPS') decided to revoke Mr Cui's firearms licence.
[2] On 30 October 2023, Mr Cui filed an application to review the revocation decision and an application for an extension of time to file the application for review out of time.
[3] Under s 61 of the Queensland Civil and Administrative Tribunal Act (Qld) ('the QCAT Act') - Relief from procedural requirements - sub-ss (1) and (3) provide that the Tribunal may extend or shorten time limits or waive compliance with another procedural requirement under the QCAT Act unless to do so would cause prejudice or detriment not able to be remedied by an appropriate order for costs or damages. We consider that this discretionary power conferred on the Tribunal includes a power to extend time for the filing of an application to review a decision to revoke a firearms licence.
2009
[4] On 16 January 2024 a Member of the Tribunal made a decision, after a hearing on the papers, to dismiss Mr Cui's application to extend time and to dismiss Mr Cui's application to review the revocation decision.
[5] On 13 February 2024, Mr Cui filed a Form 39 Application for leave to appeal or appeal. In the application form Mr Cui ticked the box beside the words, "I do not require leave to appeal in this case". Where asked in the Form 39 Application to specify briefly the grounds of the appeal, Mr Cui referred to Annexure "A", an affidavit of Samuel Hwang, solicitor, sworn 12 February 2024, and Annexure "B", an outline of submissions by his counsel, Mr Longhurst, dated 12 February 2024.
[6] An appeal book was filed on 24 April 2024 including grounds of appeal and supporting submissions. Counsel for the Queensland Police Service filed submissions on 23 May 2024. Mr Cui's counsel gave submissions in reply dated 26 June 2024.
[3]
Principles relevant to an application for leave to appeal or appeal
[4]
[7] This is a matter which requires leave to appeal under s 142(3)(a)(ii) of the QCAT Act because it seeks to appeal an interlocutory decision. That is acknowledged by Mr Cui's counsel in his reply submissions, who says in relation to the leave question that Mr Cui relies on the same matters as referred to in his submissions at first instance.
[8] Where leave to appeal is required the applicant must show that:
[5]
(a) there is a reasonable argument that there is an error to be corrected; and
(b) the appeal is necessary to correct a substantial injustice.[1]
[6]
[9] The authorities are clear that where there is an application for leave to appeal an exercise of discretion in an interlocutory matter, restraint should be exercised before a grant of leave is given.[2]
[10] As to error, Mr Cui must demonstrate that the Member below erred in the exercise of his discretion in that he acted on a wrong principle; allowed extraneous or irrelevant matters to guide or affect him; has mistaken the facts; has failed to take account of a material consideration; or where it is not clear how the conclusion was reached, the decision was unreasonable or plainly unjust so that there has been a failure to properly exercise the discretion.[3]
[11] As to substantial injustice, Mr Cui must establish something significantly more than inconvenience or delay in the exercise of a right.[4]
[7]
[12] The Member did not consider a reasonable explanation for delay had been provided. In particular, he did not think Mr Cui needed to wait for his criminal charges to be resolved prior to lodging an application for review. He referred to the 28 day time limit being clearly set out in the correspondence to Mr Cui. The Member found that the Form to be completed to commence the review application required only short information to be provided. The Member concluded that a delay of two months in the context of a 28 day time limit was significant.
[13] The Member accepted that Mr Cui's case may have merit and that no prejudice was caused by delay in filing the review application. The Member did not consider an extension of time was in the interests of justice. That is because the delay in filing was not trivial, which meant finality in litigation and meeting the Tribunal's obligation to deal with matters fairly, economically and quickly would not be achieved by granting an extension of time.
[8]
[14] Mr Hwang's affidavit raises issues of fact not previously raised in the application for an extension of time, including Mr Cui's difficulties with the English language, advice given to Mr Cui in August 2023 that whilst the rape charge was still progressing to trial there was a risk that an application to review the QPS revocation decision could fail, and Mr Cui's wish to contest the rape charge before considering the application for review.
[15] Counsel for Mr Cui's February 2024 outline of submissions states the ground of appeal as: "That the presiding officer erred in refusing the application to file out of time". It is submitted that the Member correctly identified the factors in Crime and Misconduct Commission v Chapman & Anor[5] to be taken into account in assessing an extension of time application, however failed to apply those factors in assessing the application. Mr Cui does not characterise any part of the Member's reasoning as an error of law, of fact or mixed fact and law. The submissions canvass the considerations relevant to an application for an extension of time and assert failures on the part of the Member.
[9]
[16] It is submitted that the Member should have taken into account the following matters when considering reasons for delay in filing the application:
[10]
(a) Mr Cui's vulnerabilities as a person for whom English is not a first language were not considered;
(b) The application to review form should have been considered in light of the overly complex police information notice;
(c) The police notice is officious, of questionable accuracy, and made no attempt to accommodate Mr Cui's language vulnerabilities;
(d) In light of the reasons for the QPS revocation decision, it was not unreasonable for Mr Cui to assume that he would have to provide proof of acquittal before making a review application; and
(e) On engaging legal advice, Mr Cui acted with appropriate swiftness.
[11]
[17] It was not put before the Member below that Mr Cui encountered difficulties with the English language such that he could not understand the clearly expressed time limit for review or the grounds for revocation of his firearms licence.
[18] The assertion of language vulnerabilities does not sit well with Mr Cui's affidavit which describes him as a university graduate from two Queensland universities and a current master's student at the University of Queensland.
[19] It is also apparent from Mr Hwang's affidavit that Mr Hwang provided legal advice to Mr Cui in relation to the revocation of his weapons licence and in fact advised him to hold off the application for review until after criminal charges had been dealt with. Mr Cui raised the revocation notice with Mr Hwang the day after the revocation was made. It cannot be said that he acted swiftly upon engaging legal advice.
[20] For these reasons the Member has not failed to take into account a relevant consideration so as to affect the exercise of his discretion.
[12]
[21] It is submitted that it was an error to find a significant delay in the context of the otherwise three year period that Mr Cui would be unable to reapply for a licence. It is not said on what basis the Member's conclusion as to the significance of the delay is an error in the exercise of his discretion.
[22] The Member has cited Coppens v Water Wise Design Pty Ltd[6] as authority for the need for compliance with statutory time frames. The relevant considerations are fairness to all parties, efficient and quick disposition of matters and the public interest in finality of litigation. It is not a relevant consideration that non-compliance with a statutory time frame should be minimised by inconvenience to a party.
[23] No error on the part of the Member is demonstrated.
[13]
(a) the merits of Mr Cui's case were understated and dealt with in a perfunctory way and no assessment of weight was given to this factor; and
(b) the QPS acted with gross error and misunderstanding of the facts and law, the strength of Mr Cui's application was overwhelming and should have been determinative in granting the extension of time.
[14]
[25] The Member said that he was unable to make findings of fact on the issues for determination in the substantive review. We note that those matters include the reasons for revocation of Mr Cui's firearms licence, namely, that he was not a fit and proper person to hold a firearms licence, taking into account that he accepted responsibility for committing a firearm offence, and that on 1 August 2022 he was charged with two counts of rape, one matter being committed to a higher court for hearing.
[26] The Member accepted there may be some merit in Mr Cui's application. We observe that should the matter have proceeded to a review hearing the Member would make the correct and preferable decision based on the facts at the time of the review hearing, not the facts known to QPS at the time of its revocation decision. Mr Cui's submissions suggest that the review is in the nature of an appeal based on "precisely identified error". That is to misapprehend the nature of a review conducted under s 20 of the QCAT Act.
[27] It is not apparent that QPS acted with gross error as asserted. The reasons for revocation were the known facts at the time. Withdrawal of one rape charge and discontinuance of the other rape charge did not occur until after the revocation decision.
[28] The Member did not give greater weight to the strength of Mr Cui's case on the application for review, as compared to the other relevant factors. The Member gave weight to the length of delay and lack of a good reason for delay in filing the application. That was within the scope of the reasonable exercise of his discretion.
[29] No error in the exercise of the Member's discretion is demonstrated.
[15]
[30] It is submitted that it was correctly identified there was no prejudice to the QPS, if an extension of time were granted, whereas there was overwhelming prejudice to Mr Cui.
[31] Mr Cui did not give the Member any details of the prejudice he might suffer from a refusal of an extension of time. Clearly Mr Cui will have to wait a period of time before he can re-apply for a licence. There was no evidence put before the Member as to how that delay might cause him prejudice.
[32] No error in the exercise of the Member's discretion is demonstrated.
[16]
(a) the QPS acted unlawfully in revoking Mr Cui's licence;
(b) the QPS notice materially misstated Queensland law to a person vulnerable by language;
(c) no meaningful prejudice arose for the QPS or the Tribunal; and
(d) referencing the legislated objects of the QCAT Act, no reasonable observer would say the outcome of the QPS decision was fair, just or informal - it was officious and misapplied the law and the Tribunal did not properly consider the merits.
[17]
[34] This ground of appeal appears to re-state the ground that the Member should have granted an extension of time because of the strength of Mr Cui's case on the application for review. That ground has been addressed. Other factors were considered to be more important on the facts of this case. That has not been demonstrated to amount to an error in the exercise of the Member's discretion.
[35] Insofar as Mr Cui makes broad assertions as to an unlawful revocation decision and misstatement of the law by the Queensland Police Service, those are not matters put to the Member, so as to form a consideration in the exercise of his discretion. In any event it is not relevant what a reasonable observer might say about the revocation decision. A decision made on a review application is decided not by whether the decision the subject of the review was wrong, but rather by way of a fresh hearing on the merits.
[36] The Member considered that the interests of justice sat within the parameters set out in Coppens v Water Wise Design Pty Ltd.[7] Those matters have not been addressed by Mr Cui.
[37] No error in the exercise of the Member's discretion is demonstrated.
[18]
[38] We are satisfied that there is no reasonable argument that an error has occurred in the exercise of the Member's discretion which requires appellate intervention.
[39] As to whether Mr Cui has suffered any substantial injustice as a result of the Member's decision, no submissions have been made with respect to this issue. We would expect Mr Cui to have pointed to a detriment that was more than mere inconvenience or delay.[8]
[40] Mr Cui's evidence is that he did not own a firearm but wished to develop shooting as a hobby. Being unable to obtain a fresh decision on the merits as to revocation of his firearms licence does not mean that he will not be able to obtain licence in the future. Waiting the statutory time frame is matter of inconvenience, not a substantial injustice.
[2]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc[1981] HCA 39; (1981) 148 CLR 170 [9]; Australian Anti Ice Campaign Pty Ltd v Alcohol and Drug Foundation Incorporated[2024] QCA 161 [10]-[11]; Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd[2021] QCA 198 [12]-[13].