Brooks v Krosch

[1997] QSC 171

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No 7238 of 1997

Before the Hon Justice White

[Brooks v. Krosch & Anor]

BETWEEN:
  KARL WILLIAM BROOKS

(Applicant)

AND:
  KE KROSCH SM

(First Respondent)

AND:
  ROBERTSON O’GORMAN
  Town Agents for JUSTIN CROSBY,
  Solicitors for the Defendant, BUSH

(Second Respondent)

CATCHWORDS:     JUDICIAL REVIEW - order of magistrate - whether reviewable - whether other avenues of appeal - amicus curiae - whether should be given leave to appear.

Courts Reform Amendment Act 1997
Judicial Review Act 1991 - ss.12, 13, 18, schedule 1
Justices Act 1886 ss.4, 102A-G
Magistrates Court Act 1921 s.43

Appearances::              The applicant was self-represented

Mr R Marsh (solicitor) for the first respondent
Mr D O’Connor (solicitor) for the second respondent

Solicitors:The applicant was self-represented

Mr D Stanbridge as McKenzie’s friend for the applicant
Crown Solicitor for the first respondent
Robertson O’Gorman for the second respondent

Hearing Date:              15 September 1997

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 17/09/1997

Karl William Brooks seeks review of orders made by Mr Krosch SM and Mr Taylor SM in separate proceedings.  He has represented himself before me.  Mr R Marsh of the Crown Solicitor’s office has appeared for Mr Krosch with instructions to abide the order of the court.  He holds no instructions with respect to Mr Taylor and indeed the understanding is that Mr Taylor has not been served.  Mr Brooks has stated that he served Mr Taylor himself by which I understand that he served personally an employee at the Magistrate’s Court who indicated that the material was received on Mr Taylor’s behalf.  In any event, the principle is the same it seems with respect to both Magistrates’ orders and any order concerning Mr Krosch SM, Mr Marsh accepts would apply to Mr Taylor SM.  The material filed, apart from an affidavit of Mr Brooks in Brooks v. Peryman ex parte Taylor (No 7240 of 1997), refers to the orders made by Mr Krosch SM.

The defendant in the Magistrates Court proceedings heard by Mr Krosch SM, Mr R Bush, is represented by his solicitor Mr D O’Connor who appeared for him in the Magistrates Court at Gympie.  Mr Peryman, the defendant in Magistrates Court proceedings presided over by Mr Taylor SM was not represented before me and there was no evidence to show that he had been served.

Mr Brooks was accompanied by a friend at the bar table, Mr D Stanbridge an applicant in person last year in the High Court before Kirby J (No B100 of 1996) whom Mr Brooks, who has had limited experience as a litigant in person, wished to have assist him.  It is the practice in this court, as a matter of courtesy, to seek leave for such a McKenzie’s friend (McKenzie v. McKenzie [1971] p.33) to appear and assist although the entitlement to do so was recognised in 1831 by Lord Tenterden CJ in Collier v. Hicks, 2B & Ad 663) at p.669:

“Any person, whether he be a professional man or not, may attend [in court] as a friend of either party, may take notes, may quietly make suggestions, and give advice.”

Mr A Skyring, a declared vexatious litigant in this court, sought leave to appear as amicus curiae.  The learned magistrate below had refused to permit him to appear in that capacity.  I received his written material and indicated that I would rule on that point in these reasons.

Mr Brooks seeks orders pursuant to the Judicial Review Act 1991 to review certain orders made by Mr Krosch SM on 6 August and 3 September 1997 in the Magistrates Court at Gympie. Some brief background may serve to put this application in context. Mr Brooks is a director of Mistoil Pty Ltd which, until recently, held a lease in respect of gold exploration in the Gympie area. Mr Brooks was charged with certain offences (no material concerning which is before me) associated with the mining venture (to express it without precision). He was convicted before Howell DCJ and sentenced to a term of imprisonment in April 1996. He appealed his conviction unsuccessfully to the Court of Appeal.

Mr Brooks alleges that because of the wrongful activity of Mr Bush (whom he says in his amended application was a Crown witness in his criminal trial in the District Court) the mining lease was revoked by the Department of Mines and Energy.  Mr. Brooks brought a private complaint in the Magistrates Court against Mr Bush (and Mr Peryman) charging him, inter alia, with threatened violence, false pretences, conspiracy to defraud and receiving.

On 6 August 1997 an application was made on behalf of Mr Bush for particulars of the charges, security for costs and dismissal of the complaint.  Orders were made that

“The Complainant furnish to the Defendant by delivery to the solicitors for the Defendant written proper answers to the request for particulars of the Complaint of Karl William Brooks filed the 29th day of May 1997 such requests being attached hereto and marked with the letter “A” by 27 August 1997.

That upon the Defendant having made an application that the Complaint be dismissed on the ground that it is an abuse of process, or frivolous or vexatious  the Complainant pay to the Clerk of the Brisbane Magistrates Court the sum of $3,000 by way of security for the making of the said application by 27 August 1997.”

The request for particulars is exhibit 2.  Mr Brooks under protest provided the security ordered and some 150 pages said to be in compliance with the order to provide particulars.  On 3 September Mr Brooks’ application to reopen the proceedings on 6 August was dismissed on the ground that it was an attempt to re-argue the matter.  The learned magistrate found that the complainant, Mr Brooks, had not provided particulars which were sufficiently in conformity with the principles in Johnson v. Miller (1937) 59 CLR 467. He ordered that the private complaints be struck out pursuant to s.102B(3) of the Justices Act 1886 and that the complainant pay the defendant’s costs in the sum of $2,500. This was ordered to be paid by the clerk of the court from the $3,000 paid as security and the balance to be returned to the complainant.

Mr Brooks is aggrieved of a number of these orders and in particular the order that he provide security for costs and that the complaint be dismissed for failure to provide particulars. He submits that the learned magistrate erred in ordering security for costs because the provisions which authorise a magistrate to make such orders - ss.102A to 102G of the Justices Act - do not apply to him. Section 102A provides that ss.102A to 102G apply to and in relation to a private complaint charging a person with an indictable offence, including an indictable offence a charge of which may be dealt with summarily, other than a private complaint charging a person with an offence of which injury to the person or property of the complainant is an element, and do not apply to or in relation to any other private complaint. The learned magistrate concluded that a threat to commit grievous bodily harm did not contain injury to the person as an element and the complaints relating to the mine and its equipment concerned property of the company Mistoil Pty Ltd and not property of the complainant. Mr Brooks contends that the learned magistrate erred in reaching each of those decisions. He has set out extensive submissions in his application including that the learned magistrate ought not to have proceeded to embark on the further hearing on 3 September when there was already in place an application for judicial review of the first decision.

Mr O’Connor, solicitor for Mr Bush, has applied at this hearing to have the application dismissed pursuant to ss.12 and/or 13 of the Judicial Review Act on the ground that provision for appeal from the decision of a magistrate is to be found in s.222 of the Justices Act.  That section provides for appeal to a judge of District Courts.  The time within which an appeal must be brought is 28 days after the impugned decision or 7 days after obtaining leave of a judge to appeal.  Mr Brooks is in time with respect to the latter decision and would need leave in respect of the earlier.

In Stubberfield v. Webster [1996] 2 Qd. R. 211 Thomas J held that since an appeal lay from a decision of a magistrate in a civil matter by leave adequate provision was made by another law, namely the Magistrate Courts Act, under which the applicant was entitled to seek a review of the matter by another court. He was also satisfied that the requirements for dismissal under s. 13(b) were satisfied because there were no sufficient reasons having regard to the interests of justice why the requisite dismissal should not follow. He concluded at p.217

“As a general rule judicial review should not be seen as a substitute for the appellate process in the civil court.  Of course particular circumstances may yield different results, as for example in a case of obvious jurisdictional abuse when the liberty of the citizen is at stake (R v. Judge of the District Court at Brisbane and Davies; ex parte Allen [[1969] Qd. R. 114]; Weinel v. Judge Parsons (1994) 62 SASR 501, 505), and other situations which I do not purport to limit. Applications like the present one are unlikely to produce a satisfactory result for the disgruntled civil litigant but are still likely to take up considerable time of the court. It is therefore important that it be clearly understood that this remedy is not to be regarded as a substitute for the appellate system within the ordinary judicial process.”

When asked, Mr Brooks said that he did not propose to avail himself of the appeal provisions allowed for by the legislature in the Justices Act because he thought that the magistrate was acting unconstitutionally or with want of jurisdiction when he made the order as to costs which he did.  This submission is based upon the provision in Magna Carta that “we will sell to no man, we will not deny or defer to any man either justice or right”.  There is nothing about that submission which would preclude it being ventilated in the District Court in an appeal.  It does not appear to be Mr Brooks’ principal point.  His main argument and one which might be thought to have more prospects of success is that the learned magistrate erred in not applying the exclusionary aspects of s.102A to the complaint and thus impermissibly making an order for security for costs pursuant to s.102C(1C)(2).

Since the decision in Stubberfield the legislature has passed the Courts Reform Amendment Act 1997 (Act No 38 of 1997) which so far as is relevant to these proceedings came into force on 1 August 1997 by proclamation. Part 8 concerns amendments to the Judicial Review Act 1991. Section 18 of the Judicial Review Act provides

“(1)This Act has effect despite any law in force at its commencement.

(2)However, this Act does not -

(a)affect the operation of an enactment mentioned in schedule 1, part 1; or

(b)apply to decisions made, proposed to be made, or required to be made, under an enactment mentioned in schedule 1, part 2.”

Section 54 of the Courts Reform Amendment Act provides that this Part, namely Part 8, amends the Judicial Review Act 1991. Schedule 1 part 1 items 1-7 of the Judicial Review Act are omitted and in lieu are inserted 8 items which include the previous items.  The new item is item 4

“Magistrates Courts Act 1921, sections 43, 48(1) and 50"

Section 43 of the Magistrates Courts Act 1921 provides

“(1)Subject to this Act all judgments and orders made by a Magistrates Court shall be final and conclusive.

(2)Except as provided by this Act, or by or pursuant to any other Act now in force or hereafter to be passed a judgment given by a Magistrates Court, or an action brought before it or depending therein, shall not be removed by appeal, motion, writ of error or certiorari, or otherwise into any other court.”

Section 4 of the Justices Act provides that “order” includes

“Any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court, and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it, but does not include any order made by justices committing a defendant for trial for an indictable offence, or dismissing a charge of an indictable offence or granting or refusing to grant bail and, in the last mentioned case, whether or not the justices are sitting as Magistrates Court or to hear an examination of witnesses in relation to an indictable offence.”

By the same section “justices” or “justice” means

“... Justices of the Peace or a Justice of the Peace having jurisdiction where the Act in question is, or is to be, performed, and includes a stipendiary magistrate and, where necessary, a Magistrates Court.”

It seems clear then that the purpose of the legislature in amending the Judicial Review Act as it has is to exclude the application of that Act to decisions of the kind which it is presently sought  to review and the application must be dismissed.  If for any reason it is thought that those amendments do not apply to the decisions under consideration nonetheless, in my view, an appropriate process is established by the Justices Act relating to appeals from such decisions. The application should then be dismissed pursuant to ss.12 and 13 of the Judicial Review Act.
Reference to the Office of the DPP

Mr Brooks urged that I refer his complaints against Mr Bush (and Mr Peryman) to the Director of Public Prosecutions.  He has sought the consent of the Attorney-General to institute private prosecutions against those persons which he has declined to give.

Before me Mr Brooks indicated that the matter has not been laid before the Queensland Police Service, as I understand it, in its entirety.  As was suggested on behalf of the Attorney-General (exhibit 1) Mr Brooks may find that to be the most appropriate course.  In any event, nothing has been placed before me to justify this court intervening by reference of Mr Brooks’ complaints to the Director.

Amicus Curiae

I shall deal briefly with Mr Skyring’s application to appear amicus curiae in this matter.  In paragraph 1 of his affidavit he says

“... my interest in this case derives from a longstanding interest which I have in the operations of the legal system generally in this State and nation.  This application in particular was “sparked” by an observation that was made to me by a friend of one of the parties to this action that an application was to be made to the Court at the preliminary hearing presently set down for 10 July 1997 for an order for “Security for Costs” against the Complainant in this action, notwithstanding that such an order seemed “quite improper” in the overall circumstances of the case, as they have been made known to me.  As such matters are centrally in issue in actions which I currently have in train before the superior Courts of the Commonwealth at the moment, it seemed to me appropriate that I make known to this most “inferior” Court in the judicial hierarchy particulars of the present “state of play” in those actions, as they seem to me to be highly relevant to this case.”

Later at paragraph 14 Mr Skyring states

“As noted above, I seek leave to appear in these proceedings primarily to acquaint the Court “first hand” with the developments in my own case since the hearing of 12 May 1997 before Drummond J in the Federal Court of Australia, as these have a considerable bearing on this present case.”

Mr Skyring was not given leave to appear amicus curiae before Mr Krosch SM.  The matters which he seeks to ventilate concern what he himself describes as the “currency issue” as well as numerous other matters pertaining to the institutions of government including the courts at all levels.

The role of amicus curiae has been commented upon from time to time most recently in Levy v. The State of Victoria unreported decision of the High Court of Australia of 31 July 1997 FC 97/024; M42/95 where the Chief Justice observed

“The hearing of an amicus curiae is entirely in the Court’s discretion.  That discretion is exercised on a different basis from that which governs the allowance of intervention.  The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted.  In Kruger v the Commonwealth, speaking for the Court, I said in refusing counsel’s application to appear for a person as amicus curiae:

“As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case.  The Court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the Court be prejudiced.  Where the Court has parties before it who are willing and able to provide adequate assistance to the Court it is inappropriate to grant the application.”

It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance.  All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.”

See also the discussion in R v. Murphy (1986) 64 ALR 498 per Hunt J at pp.501 et seq. I am not persuaded that the issues central to Mr Brooks’ application would be assisted by the submissions of Mr Skyring anxious as he is to advance further a range of matters with which Mr Brooks does not appear to be concerned and which are not relevant to this hearing. Accordingly leave is not given.

In conclusion the application to review the decisions of Mr Krosch SM pursuant to the Judicial Review Act made 6 August and 3 September 1997 is dismissed.

I make no formal order with respect to the application to review the decisions of Mr Taylor SM as there is no detailed material about them before the court and neither Mr Taylor nor Mr Peryman is represented nor is there evidence in the case of Mr Peryman that he has been served.

I will hear submissions as to costs.