Behrens v Criminal Justice Commission Queensland

[1993] QCA 306

IN THE COURT OF APPEAL [1993] QCA 306

SUPREME COURT OF QUEENSLAND

No. 149 of 1993

Brisbane

[Behrens v. The CJC Queensland]

BETWEEN:

HARRY BEHRENS Applicant

AND:

THE CRIMINAL JUSTICE COMMISSION

QUEENSLAND First Respondent

AND:

THE DIRECTOR OF THE OFFICIAL MISCONDUCT

DIVISION OF THE CJC Second Respondent

AND:

ACTING CHIEF OFFICER - CJC

M.A. BARNES Third Respondent

AND:

CHIEF OFFICER - CJC

D.J. BEVAN Fourth Respondent

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DAVIES J.A. PINCUS J.A.

MOYNIHAN S.J.A.

________________________________________________________________

_

J udgment delivered 20/08/1993

REASONS FOR JUDGMENT - THE COURT
________________________________________________________________
_

APPLICATION FOR AN EXTENSION OF TIME TO APPLY FOR LEAVE TO APPEAL REFUSED. ORDER THAT THE APPLICANT PAY THE RESPONDENTS' COSTS OF THE APPLICATION FOR AN EXTENSION OF TIME.

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_

CATCHWORDS:	ADMINISTRATIVE LAW - JUDICIAL REVIEW - Applicant sought extension of time to apply for leave to appeal against judge's dismissal of applications for review of respondent's decisions or failure to make decisions - Applicant complained to respondent of police officers' failure satisfactorily to investigate alleged indecent assault and of conduct of solicitor and private inquiry agent - Whether time for seeking leave to appeal limited - Whether reasonable basis for applications for review
Judicial Review Act 1991, ss. 20, 22, 43, 48 Supreme Court of Queensland Act 1991 Rules of the Supreme Court, O.70 r.4 Johns v. Johns [1988] 1 Qd.R. 138 Jiminez v. Jayform Contracting Pty Ltd [1993] 1 Qd.R. 610
Counsel:	Self represented Applicant M.P. Irwin for the Respondents
Solicitors:	Self represented Applicant Criminal Justice Commission for the Respondent
Hearing Date(s):	10 August 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 149 of 1993
Brisbane
Before Mr Justice Davies Mr Justice Pincus Mr Justice Moynihan
[Behrens v. The CJC Queensland]
BETWEEN:

HARRY BEHRENS Applicant

AND:

THE CRIMINAL JUSTICE COMMISSION

QUEENSLAND First Respondent

AND:

THE DIRECTOR OF THE OFFICIAL MISCONDUCT

DIVISION OF THE CJC Second Respondent

AND:

ACTING CHIEF OFFICER - CJC

M.A. BARNES Third Respondent

AND:

CHIEF OFFICER - CJC

D.J. BEVAN Fourth Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20/08/1993

The applicant, who appears on his own behalf, seeks an extension of time within which to apply for leave to appeal against a judgment of a single judge of the Supreme Court given on 9 November 1992. His Honour had before him competing applications under the Judicial Review Act 1991 ("the Act"). The applicant sought orders pursuant to s. 20 of the Act in respect of decisions made by or on behalf of the Criminal Justice Commission and pursuant to s. 22 in respect of the failure by the Criminal Justice Commission to make decisions. The applicant also sought relief pursuant to s. 43. However, it could not be shown that if the facts did not entitle the applicant to relief under either s. 20 or s. 22 they would entitle him to relief pursuant to s. 43.

The respondents to the applicant's applications were and are the Criminal Justice Commission and officers of that Commission. Those respondents below sought an order pursuant to s. 48 of the Act that the applicant's applications be dismissed either on the ground that no reasonable basis for the applications was disclosed or that they were vexatious. His Honour acceded to the respondent's application holding that there was no reasonable basis for making the applications pursuant to either s. 20 or s. 22.

Section 20 provides for a statutory order of review in relation to a decision to which the Act applies; and s. 22 provides for a statutory order of review in relation to a failure to make such a decision where a person, having a duty to make one, has failed to do so. The term "decision to which this Act applies" is relevantly defined to mean a decision of an administrative character made, proposed to be made or required to be made under an enactment. Both s. 20 and s. 22 are limited to decisions made after the commencement of the Act, which was 1 June 1992.

The substantive decisions of which the applicant complained were made prior to 1 June 1992. However, his Honour found that, in September 1992, the applicant asked the Commission to review such decisions in the light of material which he then placed before it, which included some additional material which had come to light after 1 June. For this reason, his Honour concluded that there was either a failure to make a relevant decision or such a decision after 1 June 1992.

Section 48, pursuant to which his Honour dismissed the applicant's application, provides that an appeal may be brought from an order under that section only with the leave of the Court of Appeal. Hence the application for leave.

The respondent submitted at the outset that the application for leave was out of time. No time limit either for appeal from a decision of the court under the Act or for leave to appeal is stated in the Act. That is not surprising because the right of appeal is not conferred by the Act but by the Supreme Court of Queensland Act 1991. The time limit for serving a notice of appeal is then provided by O. 70 r. 4; that is 21 days from the date of the judgment. In our view the leave referred to in s. 48 must be obtained before the appeal is instituted pursuant to O. 70: compare Johns v. Johns (1988) 1 Qd.R. 138 at 142; Jiminez v. Jayform Contracting Pty Ltd (1993) 1 Qd.R. 610. While it was unnecessary to apply for an extension of time within which to apply for leave to appeal, and the application for an extension could be dismissed on that ground, it appears to be convenient to consider whether the case is one in which leave to appeal should be granted.

The applicant complained to the Criminal Justice Commission against conduct by police officers. The complaint, first made on 28 January 1992, was that he had been indecently assaulted by fellow workers at his place of employment, that he had made complaint about this to police officers, and that his complaint had not been satisfactorily investigated or at least had not resulted in prosecution of his assailants as he believed it should have.

The relevant function of the Criminal Justice Commission was to investigate the conduct of the members of the police force who investigated or who failed to prosecute upon the applicant's complaints. The evidence before his Honour was that the Commission investigated that complaint and determined that it was not substantiated. The investigating police had apparently reached the decision that there was insufficient evidence to prosecute any person arising from the applicant's complaint and the Commission concluded that there was no misconduct on behalf of the police in arriving at this decision. The material before his Honour did not prove any such misconduct and consequently did not establish any basis for review of the Commission's decision.

The applicant made a number of other complaints to the Commission but these were not in respect of conduct of police officers. They were in respect of conduct of a solicitor and of a private enquiry agent. It was plainly not a function of the Commission to investigate conduct of either of them.

We therefore agree with his Honour that there was no reasonable basis for making the application for review which the applicant made, and we would therefore refuse leave to appeal. Consequently, the application for extension of time is also dismissed.

The applicant should pay the respondents' costs of these applications. However, in view of his Honour's refusal to do so, we would not make any order with respect to the costs below.