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.












* Muggins Dictionary defines "does not appear" as "a legal weasel phrase meaning 'I have had a quick look and did not find...' "