Bartz v Dept of Corrective Services

[2001] QSC 87

SUPREME COURT OF QUEENSLAND

CITATION:

Bartz v Dept of Corrective Services [2001] QSC 087

PARTIES:

WADE ANTHONY BARTZ
(applicant)
v
CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIVE SERVICES
(respondent)

FILE NO:

450 of 2001

DIVISION:

Trial

PROCEEDING:

Application on the papers

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 March 2001

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2001

JUDGE:

Muir J

ORDER:

Application of 5 March 2001 be dismissed. Application filed 15 January 2001 be dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REASONS – applicant sought additional statement of reasons for decision by respondent in relation to request for assistance in having tattoos removed – whether statement contained adequate particulars of the reasons for the decision.

Judicial Review Act 1991 s 32, s 33, s 40

COUNSEL:

W Bartz, applicant in person
L Parmasivam for the respondent

SOLICITORS:

W Bartz, applicant in person
C W Lohe, Crown Solicitor for the respondent

1. By application filed on 15 January 2001, the applicant, Wade Anthony Bartz, applies for an order that the respondent provide the applicant “… with an additional statement of reason containing further and better particulars pursuant to section 40 of the Judicial Review Act 1991 (within 7 days)”. The wording of the application is rather vague but from an affidavit relied on in support of the application it may be seen that the applicant is referring to communications he has had with the respondent concerning a request made by him to the respondent to provide assistance in having tattoos removed from his face.

1. The application came before Ambrose J on 1 February 2001 when it was adjourned, by consent, to a date to be fixed. The applicant filed a further application on 5 March returnable today seeking the same relief as that contained in the application of 15 January together with the following further relief:

“If the Court determines the respondent’s correspondence of 12 December 2000, in response to the applicant’s request for a statement of reasons of 17 November 2000, is not a statement of reasons, the respondent provide to the applicant a statement of reasons pursuant to Section 33(1) of the Judicial Review Act 1991 within (7) days.”

Facts relevant to the application

1. On 10 May 1999 the applicant wrote to the Minister responsible for the Department of Corrective Services seeking his assistance in his having facial tattoos removed. The applicant explained that the tattoos would place him at a disadvantage in obtaining employment and fitting into society once released from prison. An officer from the Corrective Services Department responded to the applicant at the Minister’s request saying, in substance, that what the applicant was seeking was elective surgery, that the Department gave priority to prisoners with more pressing problems and that, although the request was not acceded to, it would be reconsidered when the applicant was nearer the time of his release.

1. In a letter dated 11 September 2000 to the Director-General of the respondent, the applicant again requested, in substance, that the matter be referred to a Dr Falconer for a determination that his facial tattoos be removed.

1. The respondent wrote to the applicant on 26 September 2000 suggesting that the applicant provide evidence that the proposed removal of the tattoos was not for merely cosmetic purposes. The applicant responded to that letter in a letter of 11 October 2000 asserting his belief that he was suffering psychological problems as a result of the existence of the tattoos and stating a willingness to undertake whatever “psychological assessments are required to determine the issue raised in (the) correspondence”.

1. In a letter dated 9 November 2000, the respondent informed the applicant that the respondent would be willing to assist the applicant in relation to the removal of his tattoos provided that –

“.          no measures would be implemented until two years prior to your earliest due release date;

.            only the tattoos from your face will be removed; and

.you will be required to make a contribution toward the cost involved as you are seeking private medical consultations.”

1. The applicant in a letter of 17 November 2000, purportedly pursuant to the Judicial Review Act 1991, requested a statement of reasons for the respondent’s decision determining “that I would receive assistance in having the tattoos on my face two years before my earliest due release date and other determinations as set out in your correspondence dated 9 November 2000.”

1. The respondent set out reasons for the decision in a letter to the applicant of 12 December 2000.

1. The applicant was not satisfied with these reasons and in a letter of 20 December 2000 requested the respondent to provide an additional statement of reasons “containing further and better particulars in relation to the decision of 9 November 2000”.

1. The letter asserted that the 12 December 2000 statement was inadequate in that it “failed to disclose the material facts and the evidence on which the decision was based …”.

1. Reasons for the decision were requested under section 32 of the Act and given as required by section 33. The applicant then applied under section 40 for an order that the respondent give an additional statement of reasons. Such an order may be made only where the court considers that the “statement does not contain adequate particulars of the reason for the decision”.

1. The reasons given in the 12 December letter are quite clear and sufficient to enable the applicant to determine whether the respondent has made an error susceptible to challenge. Whether the reasons reveal a reviewable error is another consideration. The application before me is concerned only with the provision of further particulars or, alternatively, a statement of reasons and I can see no basis for making either of orders sought. The applicant appears to want the material before the decision-maker when making the decision. It is not the role of particulars to furnish such materials.

1. The respondent disputes this and has made extensive written submissions in support of his position. In view of the foregoing though it is not necessary for me to decide the point.

1. I order that the application of 5 March 2001 be dismissed. I also order that the application filed 15 January 2001 be dismissed.

1. I order that the applicant pay the respondent’s costs of and incidental to the applications of 15 January 2001 and 5 March 2001 to be assessed on the standard basis.