Bowyer v De Jersey - [2017] QSC 340

[2017] QSC 340

SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
A. LYONS SJA
No 9899 of 2017
ROBERT ANTHONY BOWYER Plaintiff
and
HIS EXCELLENCY THE HONOURABLE PAUL DE JERSEY
and ANOTHER Defendants
BRISBANE
4.15 PM, WEDNESDAY, 15 NOVEMBER 2017
JUDGMENT

Any Rulings that may be included in this transcript may be extracted and subject to revision by the Presiding Judge.

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HER HONOUR: Pursuant to an application filed on the 25^th of September 2017, the applicant, Mr Bowyer, has filed an application under the Judicial Review Act 1991 (Qld) for a statutory order of review, pursuant to section 20(g) on the grounds that a fraud will take place upon the people of Queensland when the Queensland Government makes the application to the Governor to have the writs for the election approved and signed. This application was made prior to the actual calling of the election.

Mr Bowyer’s application contended that the basis of his application was that the Legislative Council was abolished unlawfully because the 1921 State Parliament did not have the powers to bypass triple-entrenched provisions to amend the Constitution Act 1867 (Qld) that made changes to the composition of the legislature. The argument is that, should it be found that the entrenched provisions have not been followed, then the application for the writs for an election that only make provision for the legislative assembly as sole composition of the legislature would be fraudulent. The statutory order for review therefore sought orders that the Governor of Queensland cannot sign writs to hold an election until the State Government provides for the lawful composition of the legislature as described in section 1 of the Constitution Act 1867 (Qld).

In his application, the applicant sought that the following questions be forwarded for review: (1) did the State Parliament have the power to amend the entrenched provisions enacted by the British Parliament without first following their directions and in accordance with the UK Privy Council findings; (2) was the Constitution Act Amendment Act 1922 (Qld) unlawfully presented to the Governor when neither the entrenched provisions for two-thirds’ majority or the majority of the members was achieved in the chamber’s division; and (3) did the 28 Labor-appointed Legislative Council members, while holding pledges to destroy the Legislative Council, in taking their oath of office, act in treason to the democratic will of Queenslanders as demonstrated by the 1917 referendum results.

In his oral submissions today and in his earlier written submissions, the applicant indicates that the application to seek…

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 Bowyer v De Jersey

Details

AGLC: Bowyer v De Jersey [2017] QSC 340
Case: [2017] QSC 340
Decision Date: 15 NOVEMBER 2017

CaseChat Overview and Summary

Bowyer filed an application for judicial review against De Jersey and another, seeking a statutory order of review on the grounds that a fraud would take place upon the people of Queensland if the writs for the election were approved and signed by the Governor. The basis of Bowyer's application was that the Legislative Council was abolished unlawfully because the 1921 State Parliament did not have the powers to bypass triple-entrenched provisions to amend the Constitution Act 1867 (Qld). Bowyer argued that should it be found that the entrenched provisions had not been followed, then the application for the writs for an election that only made provision for the legislative assembly as sole composition of the legislature would be fraudulent. De Jersey and the other respondent sought the summary dismissal of the application on the basis that it had no reasonable basis. The Court found that the dissolution of the Legislative Assembly and the issuing of the writs were not justiciable decisions. The Court found that the substance of the application was also futile, as it was a challenge to the passing of legislation in 1908 and 1922, which was out of time. The Court concluded that the originating application should be dismissed, as it would be inappropriate for the proceedings to be continued because there was no reasonable basis for the application. The Court ordered that the originating application be dismissed and that the applicant pay the respondents' costs on an indemnity basis.

Orders