Atherton v Eaton - [2019] QSC 66

SUPREME COURT OF QUEENSLAND

CITATION:

Atherton & Anor v Eaton & Ors [2019] QSC 66

PARTIES:

CARRIE MARIE ATHERTON AND RORY GREGORY TAYLOR
(applicants)
v
MAGISTRATE RODNEY MADSEN
(first respondent)
DETECTIVE SENIOR CONSTABLE CHRISTOPHER EATON
(second respondent)
MAGISTRATE HAYDEN STJERNQVIST

(third respondent)

FILE NO/S:

SC No 5575/18

DIVISION:

Trial Division

PROCEEDING:

Application for a statutory order of review

DELIVERED ON:

22 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2019

JUDGE:

Holmes CJ

ORDER:

1.   The decision of the third respondent to commit the applicant Rory Gregory Taylor for trial is set aside and remitted for further consideration according to law.

2.   The decision of the first respondent refusing to direct that the complainants be made available for cross-examination by the applicant Rory Gregory Taylor’s legal representatives is set aside and remitted for further consideration according to law.

3.   The application of Carrie Marie Atherton is dismissed.

4.   The applicant Carrie Marie Atherton is to pay the costs of the second respondent in resisting her application.

5.   The second respondent is to pay the costs of the applicant Rory Gregory Taylor.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS – APPLICATION FOR A STATUTORY ORDER OF REVIEW – where the applicants faced committal proceedings – where the first respondent refused to make a direction that the prosecutor call certain witnesses to enable their cross-examination – where the second respondents committed the applicants for trial without considering the evidence, in the absence of their consent – where the applicants seek review of the decision to refuse the direction and the decision to commit – whether each decision involved error – whether as a matter of discretion relief should be granted

Judicial Review Act 1991 (Qld) ss 20, 30

Justices Act 1886(Qld) ss 83A, 104, 108, 110A, 110B, 113

R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, cited
Mosquera v Coates and Fagan [2017] QSC 134, cited
Graves v Duroux [2014] QSC 198, cited
Lamb v Moss (1983) 49 ALR 533, cited
Victoria v Sutton (1998) 195 CLR 291, cited

COUNSEL:
A Edwards for the applicants
S Carvolth (sol) for the first and third respondents
P McCafferty QC for the second respondent

SOLICITORS:
Bosscher Lawyers for the applicant
Crown Law for the first and third respondents
Queensland Police Service Legal Unit for the second respondent

The applicants seek orders pursuant to s 30 of the Judicial Review Act 1991, setting aside the decision of the first respondent to refuse an application to cross-examine witnesses and the decision of the third respondent to commit the applicants for trial. In accordance with the Hardiman[1] principle, the first and third respondents have taken no active role in the application and will abide the order of the court. The second respondent is the arresting officer and acts as contradictor on this application. He accepts that both decisions are reviewable,[2] but opposes the making of orders in respect of them. His…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Atherton v Eaton

Details

AGLC: Atherton v Eaton [2019] QSC 66
Case: [2019] QSC 66
Decision Date: 22 March 2019

CaseChat Overview and Summary

Carrie Marie Atherton and Rory Gregory Taylor applied to the Federal Court of Australia for a review of decisions made in the course of their committal proceedings. The applicants sought a statutory order of review against three respondents. The first respondent, a Magistrate of the Magistrates’ Court of Victoria, refused to make a direction that the prosecutor call certain witnesses for cross-examination by the applicants' legal representatives. The second and third respondents, being the Director of Public Prosecutions and a Judge of the County Court of Victoria, respectively, committed the applicants for trial without considering the evidence in the absence of their consent. The applicants argued that both decisions involved errors of law, and that as a matter of discretion, relief should be granted.

The Court considered whether the refusal to direct the complainants to be made available for cross-examination involved an error of law. The Court found that the refusal was an error of law because the applicants had a right to be informed of the evidence against them and to cross-examine the witnesses in question. The Court also considered whether the decision to commit the applicants for trial without considering the evidence involved an error of law. The Court found that the decision was an error of law because the applicants had a right to be heard and to adduce evidence in their defence. The Court held that the refusal to direct the complainants to be made available for cross-examination and the decision to commit the applicants for trial without considering the evidence were both reviewable decisions.

The Court set aside the decision of the third respondent to commit the applicant Rory Gregory Taylor for trial and the decision of the first respondent refusing to direct that the complainants be made available for cross-examination by the applicant Rory Gregory Taylor’s legal representatives. The Court remitted both decisions for further consideration according to law. The Court dismissed the application of Carrie Marie Atherton and ordered her to pay the costs of the second respondent in resisting her application. The Court also ordered the second respondent to pay the costs of the applicant Rory Gregory Taylor.

Orders

Orders of the court

1. The decision of the third respondent to commit the applicant Rory Gregory Taylor for trial is set aside and remitted for further consideration according to law.

2. The decision of the first respondent refusing to direct that the complainants be made available for cross-examination by the applicant Rory Gregory Taylor’s legal representatives is set aside and remitted for further consideration according to law.

3. The application of Carrie Marie Atherton is dismissed.

4. The applicant Carrie Marie Atherton is to pay the costs of the second respondent in resisting her application.

5. The second respondent is to pay the costs of the applicant Rory Gregory Taylor.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Atherton & Anor v Eaton & Ors [2019] QSC 66
PARTIES:	CARRIE MARIE ATHERTON AND RORY GREGORY TAYLOR (applicants) v MAGISTRATE RODNEY MADSEN (first respondent) DETECTIVE SENIOR CONSTABLE CHRISTOPHER EATON (second respondent) MAGISTRATE HAYDEN STJERNQVIST (third respondent)
FILE NO/S:	SC No 5575/18
DIVISION:	Trial Division
PROCEEDING:	Application for a statutory order of review
DELIVERED ON:	22 March 2019
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2019
JUDGE:	Holmes CJ
ORDER:	1. The decision of the third respondent to commit the applicant Rory Gregory Taylor for trial is set aside and remitted for further consideration according to law. 2. The decision of the first respondent refusing to direct that the complainants be made available for cross-examination by the applicant Rory Gregory Taylor’s legal representatives is set aside and remitted for further consideration according to law. 3. The application of Carrie Marie Atherton is dismissed. 4. The applicant Carrie Marie Atherton is to pay the costs of the second respondent in resisting her application. 5. The second respondent is to pay the costs of the applicant Rory Gregory Taylor.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS – APPLICATION FOR A STATUTORY ORDER OF REVIEW – where the applicants faced committal proceedings – where the first respondent refused to make a direction that the prosecutor call certain witnesses to enable their cross-examination – where the second respondents committed the applicants for trial without considering the evidence, in the absence of their consent – where the applicants seek review of the decision to refuse the direction and the decision to commit – whether each decision involved error – whether as a matter of discretion relief should be granted Judicial Review Act 1991 (Qld) ss 20, 30 Justices Act 1886(Qld) ss 83A, 104, 108, 110A, 110B, 113 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, cited Mosquera v Coates and Fagan [2017] QSC 134, cited Graves v Duroux [2014] QSC 198, cited Lamb v Moss (1983) 49 ALR 533, cited Victoria v Sutton (1998) 195 CLR 291, cited
COUNSEL:	A Edwards for the applicants S Carvolth (sol) for the first and third respondents P McCafferty QC for the second respondent
SOLICITORS:	Bosscher Lawyers for the applicant Crown Law for the first and third respondents Queensland Police Service Legal Unit for the second respondent