BB v Liebsanft - [2003] QSC 326

SUPREME COURT OF QUEENSLAND

CITATION:

BB v Liebsanft & Ors [2003] QSC 326

PARTIES:

BB
(applicant)
v
R H LIEBSANFT, Acting Magistrate
(first respondent)
S C JOHNSTONE, Magistrate
(second respondent)
D F WILKINSON, Magistrate
(third respondent)
AB
(fourth respondent)

FILE NO:

S4921 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

26 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2003

JUDGE:

Mackenzie J

ORDER:

1.   The application to review the decisions of the first respondent made on 1 April 2003 in application 2332 of 2003 in the Maroochydore Magistrates Court is dismissed

2.   The application to review the decisions of the second respondent made on 15 April 2003 in the same application is dismissed

3.   The application to review the decisions of the third respondent made on 6 May 2003 in the same application is dismissed

4.   In other respects the application for a statutory order of review is dismissed

5.   The parties have liberty to make submissions in writing as to costs within 14 days

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – “DECISION” WITHIN THE ACTS APPLICATION – OF AN ADMINISTRATIVE CHARACTER – where the applicant seeks judicial review under Judicial Review Act 1991 (Qld) of decision made in Magistrates Court pursuant to Domestic and Family Violence Protection Act 1989 (Qld) – where temporary protection order made against applicant and proceedings otherwise adjourned to 6 May 2003 for mention – where applicant sought variation of that order – where before court for mention – where adjourned to 14 July 2003 – where, on 6 May 2003, further orders made imposing more onerous conditions on applicant – whether decision of Magistrate Court reviewable under Part 3 Judicial Review Act – whether decisions of an administrative character

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – CONDUCT RELATING TO MAKING OF DECISION – where applicant also sought review under Part 5 Judicial Review Act – where applicant alleged failure to comply with provisions of Domestic and Family Violence Protection Act 1989 (Qld) in making orders – where applicant alleged denial of procedural fairness in failure to hear oral evidence, read applicant’s material and refusal to admit evidence before court – where applicant alleged Magistrates acted outside jurisdiction in including relative of aggrieved person in orders – whether failure to comply with provisions of Domestic and Family Violence Protection Act in making orders – whether Magistrates acted outside jurisdiction in making orders – where denial of procedural fairness – whether making of temporary protection order requires full hearing of evidence – whether temporary protection orders invalid – whether basis for order of certiorari made out

Domestic and Family Violence Protection Act 1989 (Qld),
s 11, s 13, s 15, s 16, s 17A, s 24, s 25, s 25A, s 34B, s 38(2), s 39A, s 48, s 50(4), s 54, s 85
Judicial Review Act 1991 (Qld), Part 3, Part 5
Justice Act 1886 (Qld), s 102B

COUNSEL:

The applicant appeared on his own…

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 BB v Liebsanft

Details

AGLC: BB v Liebsanft [2003] QSC 326
Case: [2003] QSC 326
Decision Date: 26 September 2003

CaseChat Overview and Summary

The case of BB v Liebsanft involved an applicant who sought judicial review of decisions made by the Magistrates Court under the Domestic and Family Violence Protection Act 1989 (Qld). The applicant was subject to a temporary protection order and sought a variation of this order. The legal issues at hand were whether the decisions made by the Magistrates Court were reviewable under the Judicial Review Act 1991 (Qld), and whether the decisions constituted an administrative character. Additionally, the applicant argued that the Magistrates failed to comply with the Domestic and Family Violence Protection Act 1989 (Qld) and denied procedural fairness by not hearing oral evidence or admitting evidence before the court.

The court considered the nature of the decisions made by the Magistrates Court and determined that they did not fall within the definition of a "decision" under the Judicial Review Act 1991 (Qld). The court held that the decisions were of an administrative character and thus reviewable. However, the applicant's claims of failure to comply with the Domestic and Family Violence Protection Act 1989 (Qld) and denial of procedural fairness were not substantiated. The court found that the Magistrate's actions were not outside their jurisdiction and that there was no requirement for a full hearing of evidence in making a temporary protection order.

As a result, the court dismissed the application for a statutory order of review, finding that none of the grounds argued by the applicant had been made out to the standard required for granting an order of certiorari. The parties were granted liberty to make written submissions on costs within 14 days.

In summary, the court found that the decisions made by the Magistrates Court were not reviewable under the Judicial Review Act 1991 (Qld) and that the applicant's claims of failure to comply with the Domestic and Family Violence Protection Act 1989 (Qld) and denial of procedural fairness were not substantiated. The application for a statutory order of review was dismissed.

Orders

Orders of the court

1. The application to review the decisions of the first respondent made on 1 April 2003 in application 2332 of 2003 in the Maroochydore Magistrates Court is dismissed

2. The application to review the decisions of the second respondent made on 15 April 2003 in the same application is dismissed

3. The application to review the decisions of the third respondent made on 6 May 2003 in the same application is dismissed

4. In other respects the application for a statutory order of review is dismissed

5. The parties have liberty to make submissions in writing as to costs within 14 days

Background

Background to the litigation

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Evidence

Evidence Before The Court

(b) The Magistrate did not hear evidence from the respondent. (c) The Magistrate made a temporary protection order. (d) The Magistrate made a temporary protection order in the terms made. (e) The Magistrate did not consider the welfare of the aggrieved person’s children. (f) The Magistrate did not enquire as to the accommodation needs of the parties nor of the children of the aggrieved person. (g) The Magistrate did not advise the respondent of the matters required to be advised by s 50 of the Act. (h) the Magistrate did not enquire as to the matters s 24 of the Act required the court to enquire into. (i) The Magistrate included the name of a relative of the aggrieved person in the temporary protection order. For the reasons given none of the grounds argued by the applicant have been made out to the standard required for granting an order of certiorari in respect of the hearing on 1 April 2003. A complaint with respect to this occasion was that the Magistrate did not read the application to vary the existing order or the affidavit in support to ascertain the urgency or cogency of the application and whether there were changed circumstances sufficient to invoke his discretion to order a variation. It is apparent that the date upon which these proceedings occurred was a mention or callover date only. In such a case one would ordinarily expect the matter to be set down for hearing at a future date when time was available. That was the order made. However, associated with this argument is a submission that giving the application “a hearing date well past the time when the orders sought to be varied would expire by the effluxion of time” was objectionable. The application was in fact adjourned to 14 July 2003 which, as far as the record goes, appears to be a date which was available after the magistrate consulted the diary. The account given in the applicant’s affidavit is ambiguous at best as to whether the Magistrate was told specifically that the order sought to be varied had been set down for hearing on 6 May 2003. It may be that he was aware of it from the file. It is asserted that the order was “due to expire” on 6 May. That, of course, was subject to the provision of s 34B which continues an order in force until the order is returnable before a court, unless the court extends the order. For that reason it is inaccurate to characterise the order as one due to expire on 6 May 2003. Had it been extended on that day its expiry date would have been later. I am not persuaded that there is any basis for certiorari made out in respect of this aspect of the matter. It is also complained that the Magistrate characterised the application to vary as if it were an appeal, which he lacked jurisdiction to hear. In context, the statement by the Magistrate as recalled by the applicant appears to have been a response to submissions by the applicant implying that the order previously made was erroneous and that his application be disposed of as a matter of urgency. Viewed in that way, I am satisfied that the remarks complained of do not bear the character complained of.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	BB v Liebsanft & Ors [2003] QSC 326
PARTIES:	BB (applicant) v R H LIEBSANFT, Acting Magistrate (first respondent) S C JOHNSTONE, Magistrate (second respondent) D F WILKINSON, Magistrate (third respondent) AB (fourth respondent)
FILE NO:	S4921 of 2003
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	26 September 2003
DELIVERED AT:	Brisbane
HEARING DATE:	18 September 2003
JUDGE:	Mackenzie J
ORDER:	1. The application to review the decisions of the first respondent made on 1 April 2003 in application 2332 of 2003 in the Maroochydore Magistrates Court is dismissed 2. The application to review the decisions of the second respondent made on 15 April 2003 in the same application is dismissed 3. The application to review the decisions of the third respondent made on 6 May 2003 in the same application is dismissed 4. In other respects the application for a statutory order of review is dismissed 5. The parties have liberty to make submissions in writing as to costs within 14 days
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – “DECISION” WITHIN THE ACTS APPLICATION – OF AN ADMINISTRATIVE CHARACTER – where the applicant seeks judicial review under Judicial Review Act 1991 (Qld) of decision made in Magistrates Court pursuant to Domestic and Family Violence Protection Act 1989 (Qld) – where temporary protection order made against applicant and proceedings otherwise adjourned to 6 May 2003 for mention – where applicant sought variation of that order – where before court for mention – where adjourned to 14 July 2003 – where, on 6 May 2003, further orders made imposing more onerous conditions on applicant – whether decision of Magistrate Court reviewable under Part 3 Judicial Review Act – whether decisions of an administrative character ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – CONDUCT RELATING TO MAKING OF DECISION – where applicant also sought review under Part 5 Judicial Review Act – where applicant alleged failure to comply with provisions of Domestic and Family Violence Protection Act 1989 (Qld) in making orders – where applicant alleged denial of procedural fairness in failure to hear oral evidence, read applicant’s material and refusal to admit evidence before court – where applicant alleged Magistrates acted outside jurisdiction in including relative of aggrieved person in orders – whether failure to comply with provisions of Domestic and Family Violence Protection Act in making orders – whether Magistrates acted outside jurisdiction in making orders – where denial of procedural fairness – whether making of temporary protection order requires full hearing of evidence – whether temporary protection orders invalid – whether basis for order of certiorari made out Domestic and Family Violence Protection Act 1989 (Qld), s 11, s 13, s 15, s 16, s 17A, s 24, s 25, s 25A, s 34B, s 38(2), s 39A, s 48, s 50(4), s 54, s 85 Judicial Review Act 1991 (Qld), Part 3, Part 5 Justice Act 1886 (Qld), s 102B
COUNSEL:	The applicant appeared on his own…