dATE OF
DECISION 16 JUNE 2005
How go the costs of a Weapons
Appeal?
When
an Authorised Officer of the WLB makes a
decision
pursuant to the provisions of the Weapons Act
1990, and you lodge an appeal against that
decision, does the Magistrate have the power to
award costs of the appeal depending on the
outcome?
It it to
WLB's advantage that they can threaten
appellants with costs orders as a means to
discourage appeals against their decisions? Is
it to our advantage that we public spirited
individuals can do no worse by having a
Magistrate consider whether or not the decision
of the WLB was invalid?
If the
Weapons Act intended that there be no power in
the Magistrate to award costs (that is the WLB
submission to His Honour Magistrate N. Nunan
in the part heard matter of Powell v Woolcock)
then you can feel confident that by taking your
appeal against the WLB decision, you will not be
worse off than you are already if your appeal
fails.
On the other
hand, in the event that you take your appeal
against the Authorised Officer's decision and
beat him, you not only have protected yourself
and your sport and your community's liberty, you
might be artially recompensed with a costs award
against him for your trouble.
This is an
interesting question, and frankly, I am not sure
whether the decision of the District Court in
Leyden v Gourlay tips the balance for or
against the individual in the fight against WLB
over-regulation. Whether the WLB is ready
to sustain a series of costs awards for
soldiering in their crusade against
weapons owners, is for their political master to
decide. There are, after all, more compelling
ways to protect Queenslanders - an adequate
Health System might be nice.
Robin Gourlay
held a weapons licence and an armorer's licence
pursuant to the provisions of the Weapons Act
1990. Michael Leyden, as an authorised
police officer, issued licence suspension
notices pursuant to s.28 of the Act. Gourley
appealed pursuant to his right under s.142 of
the Weapons Act 1990 and the matter came
before the Magistrates Court
in Mareeba.
In dealing
with the appeal, the Magistrate ordered that the
unsuccessful party pay the costs of the
successful party, which he fixed at $350.
The WLB
appealed against this decision, for it's
an easy guess that they do not like the idea
that each appeal they lose might bring a costs
order against them. They are dedicated employees
after all, and do not like having their budgets
blown out by possible negative outcomes each
time they misread their empowering Act.
In
prosecuting their appeal, WLB again took heart
in the decision of McGill DCJ in Phillips v.
Woolcock (2002) QDC 035 where his Honour
said:-
"There does not appear* to be any power to
make an order in relation to the costs of
the appeal to the Magistrates Court."
Was McGill
DCJ right or wrong?
With that in
mind, you should now read the decision. If you
are not interested in the intellectual process,
then skip reading the decision and jump straight
to the analysis.