Clampett v Hales

[2013] QCA 3

SUPREME COURT OF QUEENSLAND

CITATION:

Clampett v Hales & Anor [2013] QCA 3

PARTIES:

LEONARD WILLIAM CLAMPETT
(applicant)
v
INSPECTOR ALLAN HALES OF THE QUEENSLAND POLICE SERVICE
(first respondent)
MICHAEL CALTABIANO DIRECTOR-GENERAL QLD TRANSPORT
(second respondent)

FILE NO/S:

Appeal No 6354 of 2012
SC No 3658 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 February 2013

DELIVERED AT:

Brisbane

HEARING DATE:

10 December 2012

JUDGES:

Margaret McMurdo P and Fraser JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Leave to appeal refused.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – GENERALLY – where the applicant breached the Transport Operations (Road Use Management) Act 1995 (Qld) and its Regulations – where prior to the breach the Commissioner of Police advised the applicant that the speed detection devices comply with legislation – where the applicant sought judicial review of that statement – where the primary judge held that the statement was not a decision made under an Act – where the applicant contends that he should be given leave to appeal as the interpretation of the National Measurement Act 1960 (Cth) is being ignored – whether the applicant should be given leave to appeal

Judicial Review Act 1991 (Qld)
National Measurement Act 1960 (Cth)
Transport Operations (Road Use Management) Act 1995 (Qld)

COUNSEL:

The applicant appeared on his own behalf
S A McLeod for the first respondent
S R Martin (sol) for the second respondent

SOLICITORS:

The applicant appeared on his own behalf
Queensland Police Service for the first respondent
Crown Law for the second respondent

1. MARGARET McMURDO P: The application for leave to appeal should be refused for the reasons given by Boddice J. 

1. FRASER JA: I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.

1. BODDICE J: The applicant seeks leave to appeal an order dismissing his application for judicial review on the ground that the matter the subject of the application for judicial review did not constitute a “decision” as defined in the Judicial Review Act 1991 (Qld).

1. The grounds of any appeal are that the matter was properly the subject of an application for judicial review.

Background

1. On 28 March 2012, the applicant was given notice that he had accumulated 13 demerit points as a consequence of breaches of the Transport Operations (Road Use Management) Act 1995 (Qld) and its Regulations, in particular, speeding offences.

1. Prior to the receipt of that notification, the applicant had corresponded with the Commissioner of Police concerning the testing and calibration of speed detection devices.  In response, the first respondent advised the applicant by letter:

“You are advised that the testing and calibration of speed detection devices complies with legislation, Australian Standards, and is traceable to the National Measurements Act 1960.  The Queensland Police Service (QPS) strictly adheres to the calibration regime, including the frequency of the tests.”

1. The applicant’s application for judicial review sought a review of that statement made by the first respondent in that letter.

Dismissal

1. The primary judge held that the first respondent's statement in the letter was not a decision made under an Act.  It was an observation, or assertion, or contention.  Accordingly, there was no basis for a review of that statement.

1. The primary judge dismissed an attempt by the applicant to recast the application so that the relevant decision was the first respondent’s determination to send the letter containing that statement.  The primary judge held that any decision to send the letter was not a decision which was required or authorised by an Act.  It was not a decision determining any application, enquiry or dispute.

Leave to appeal

1. The applicant contends he should be given leave to appeal as the interpretation of legislation, namely, the National Measurement Act 1960 (Cth), is being ignored, and there is an overriding importance for the administration of justice that leave be granted so as to ensure “the integrity” of the entire judicial system.

Consideration

1. The applicant’s contention that the statement in the first respondent’s letter was a decision under an enactment is without substance.  That statement could not constitute a decision under an enactment, such as to enliven the jurisdiction of the Judicial Review Act 1991 (Qld). The statement is an assertion by the first respondent. It does not constitute any decision. It is certainly not a decision made under any enactment.

1. Similarly, the primary judge correctly concluded that the first respondent’s decision to send the letter could not constitute a decision under an enactment.  There was no requirement on the first respondent to send the letter.  It did not constitute a determination of any enquiry.

1. Any appeal by the applicant is doomed to fail.  There is no issue of overriding importance as alleged by the applicant.  There is, therefore, no reason why the applicant should be given leave to appeal.

1. I would refuse leave to appeal.