Omeo Way Pty Limited (ACN 050 415 355) v Commonwealthof Australia [2002] FCA 799 (18 March 2002)

Last Updated: 23 August 2002

FEDERAL COURT OF AUSTRALIA

Omeo Way Pty Limited (ACN 050 415 355) v Commonwealth of Australia [2002] FCA 799

OMEO WAY PTY LIMITED (ACN 050 415 355) v COMMONWEALTH OF AUSTRALIA AND THE STATE OF QUEENSLAND

Q 66 OF 2001

DOWSETT J

18 MARCH 2002

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 66 OF 2001

BETWEEN:	OMEO WAY PTY LIMITED (ACN 050 415 355) APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT THE STATE OF QUEENSLAND SECOND RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	18 MARCH 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. Leave to amend the statement of claim is refused.

2. The applicant to pay the first respondent's costs of today.

3. As between the applicant and the second respondent, costs of today are costs in the cause.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 66 OF 2001

BETWEEN:	OMEO WAY PTY LIMITED (ACN 050 415 355 APPLICANT
AND:	COMMONWEALTH OF AUSTRALIA FIRST RESPONDENT THE STATE OF QUEENSLAND SECOND RESPONDENT

JUDGE:	DOWSETT J
DATE:	18 MARCH 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an application to amend the statement of claim, made at a very late stage, to add claims for judicial review of certain decisions made by either the Attorney-General of the Commonwealth or officers within his Department, arising under the National Firearms Program Implementation Act 1996 (Cth) (the "federal Act"). It seems to me that, for any number of reasons, the claim is misconceived. I therefore propose to give my reasons now, although they will be somewhat less full than they might have been had I reserved the matter.

2 It is necessary to say something about the relevant legislation. As is well known, following a particular incident which occurred some years ago, the Commonwealth and the states agreed to arrange what was described as a "buy-back" of certain classes of firearms. The scheme which was eventually adopted involved, in broad terms, the acquisition by the various states of weapons, presumably those within their boundaries, which acquisition was to be financed by the Commonwealth. The scheme required both federal and state legislation. Relevantly for present purposes, s 179 of the Weapons Act 1990 (Qld) (the "state Act") provides:

(1) A person who owns a weapon and, after the commencement, surrenders it to the Commissioner is entitled to compensation from the State, but only under this section.

(2) Compensation is payable only for weapons for which the State may receive compensation under either of the following Commonwealth Acts -

* The National Firearms Program Implementation Act 1996

* The National Firearms Program Implementation Act 1997

(3) Compensation is payable for the weapons only if they are surrendered on or before the last day of the amnesty.

(4) Compensation for a surrendered weapon is payable in an amount and in the way prescribed under a regulation.

(5) If a regulation does not provide for the amount of compensation payable for a particular weapon, the regulation may provide for the way in which a dispute about its value is to be decided.

(6) A regulation may also provide for compensation for loss of business in circumstances specified in the regulation.

(7) A weapon surrendered under this section is the State's property when compensation for the weapon is paid under this section.

3 The "Commissioner" is the Commissioner of Police for Queensland. Regulation 70 of the Weapons Regulations 1996 (Qld) provides that if the amount of compensation payable for a particular firearm is not listed on a certain Commonwealth list, the amount is to be fixed by agreement between the Commissioner and the owner. If they cannot agree, a panel of three persons is to be appointed to fix the valuation.

4 Section 3 of the federal Act defines the term "qualifying compensation" to mean:

Compensation paid by a State, to the extent to which the compensation meets the following conditions:

(a) the compensation is paid under a compensation scheme:

(i) set up by the State to implement the national firearms program;

(ii) approved by the Attorney-General in writing for the purposes of this Act.

(b) the compensation is paid:

(i) for property surrendered by a person during the amnesty period;

(ii) to meet a claim for compensation for loss of business lodged by a person during the amnesty period;

(c) The compensation relates to self-loading rifles, self-loading shotguns, or pump action shotguns.

5 Subsection 4(1) provides that the Attorney may authorise the payment to a state of amounts by way of reimbursement for qualifying compensation paid by the state. However the Act does not purport to compel the Attorney to authorise such payments. The Attorney may not authorise payment of more than the total amount of qualifying compensation paid by a state, or at least this is the apparent effect of subs 4(3).

6 The present applicant is a weapons dealer who claims to be entitled to compensation as a result of the surrender to the State of Queensland of weapons and weapon components which had previously been his property. He is presently engaged in litigation with both the Commonwealth and that state as to the amount of compensation to which he is entitled. As part of that exercise he asserts that certain decisions made by the Attorney, or by officers of his Department, had the effect of diminishing the amount which he was entitled to recover pursuant to the state Act and that he was therefore a person aggrieved by the relevant decisions so as to be entitled to seek judicial review of them pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act"). The decisions in question are identified in pars 46 - 48 and 58 of the draft statement of claim. The first is a decision made on 22 May 1997 to adopt a policy pursuant to which compensation for firearms' components would be payable only for what was described as a "commercially viable" quantity and that the states should be authorised to decide what might constitute such a quantity. The second decision, allegedly made on 4 December 1997, was to:

support the policy adopted by the Director and management of the Firearms Project, Queensland with respect to the manner and method of dealing with the applicant's claims for compensation.

7 That applicant was the present applicant. It is said that each of the decisions was either unauthorised by the relevant federal Act or inconsistent with it. Although the applicant has put his case in a number of different ways at different times, and although the statement of claim is quite discursive in its dealing with the subject, the thrust of the complaint seems to be that the applicant is a person aggrieved by the decisions in question because they have been reflected in decisions made by the State of Queensland as to the level of compensation payable to him for weapons' components pursuant to the state Act.

8 Prima facie one would think that any entitlement to compensation is pursuant to the state legislation. Sub-section 179(2) provides that he will only receive compensation "for weapons for which the state may receive compensation under" the federal Act. The applicant submits that this means that he can only obtain from the state such compensation as is paid to it by the Commonwealth. However the better view is that the reference in the state Act to "weapons for which the state may receive compensation" is to par (c) of the definition of "qualifying compensation" in the federal Act, which paragraph limits the meaning of that term to compensation for certain classes of weapons. The level of compensation is fixed by the provisions of subss 179(4), (5) and (6) of the state Act, and those provisions have been picked up in the regulations to which I have referred. There is nothing in s 179 which limits the compensation payable by the state to the amount which it will receive by way of reimbursement from the Commonwealth. Thus, it seems to me, that if the applicant has any claim concerning the amount of compensation, it is a claim against the state. Decisions made within the Attorney-General's Department, whether pursuant to the federal Act or otherwise, are not decisions which have any direct impact upon the applicant. He is not a person aggrieved for the purposes of the ADJR Act.

9 The Commonwealth opposes the proposed amendments upon a slightly different basis. It asserts that there has been no decision within the meaning of the ADJR Act relying particularly upon the observations of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 338, where his Honour said:

The interpretation of `decision' which I favour is not as broad as that preferred by the Federal Court in Lamb v Moss. There, the Full Court of the Federal Court (Bowen CJ, Sheppard and Fitzgerald JJ), after reviewing the authorities, which the Court said revealed `some inconsistency' stated:

`In our opinion, there is no limitation, implied or otherwise, which restricts the class of decision which may be reviewed to decisions which finally determine rights or obligations or which may be said to have an ultimate and operative effect.'

My view is more in accord with the tentative opinion expressed earlier by Ellicott J in Ross v Costigan when he said that, it may well be that the word `decision' means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person'. However, I would not wish for myself to place emphasis on the words `of itself' in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.

10 It seems to me that there is no ultimate decision by the Commonwealth which affects the applicant's rights in any way. His rights are, as I have previously observed, to be determined by reference to the state Act. The applicant has sought, in numerous ways, to characterise the state and federal Acts and administrative decisions as being part of, or in execution of an overall agreement. Of course, there was such an agreement. However the obligations of both Queensland and the Commonwealth depend, for present purposes, not upon what they may have agreed between themselves, but rather upon the extent to which that has been reflected in the relevant legislation. Whilst it is true that the federal Act reflects an intention to give effect to an agreement amongst police ministers, it does not, in any sense, compel payment to the present applicant of any amount. In those circumstances, I cannot see that the decision is a decision in the sense used by Mason CJ, nor is the applicant a person aggrieved for the purposes of the ADJR Act.

11 I refuse leave to amend the statement of claim to raise requests for judicial review of the decisions in question. I order the applicant to pay the first respondent's costs of today. As between the applicant and the second respondent, the costs of today will be costs in the cause.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 21 June 2002

Counsel for the Applicant:	Mr M Evans
Solicitor for the Applicant:	Roberts & Kuskie
Counsel for the First Respondent:	Mr J A Logan, SC Mr M C Swan
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	Mr M D Hinson SC Mr E Morzone
Solicitor for the Second Respondent:	Crown Solicitor
Date of Hearing:	18 March 2002
Date of Judgment:	18 March 2002