Clampett v Magistrate Cornack - [2012] QSC 123

SUPREME COURT OF QUEENSLAND

CITATION:

Clampett v Magistrate Cornack [2012] QSC 123

PARTIES:

LEONARD WILLIAM CLAMPETT
(plaintiff)
v
MAGISTRATE CORNACK
(first respondent)
AND
COMMISSIONER FOR POLICE, QUEENSLAND
(second respondent)

FILE NO:

8490 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

4 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

9 January 2012

JUDGE:

Daubney J

ORDER:

The application filed 22 September 2011 be dismissed.

CATCHWORDS:

ADMINSITRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISCRETION NOT TO ENTERTAIN AN APPLICATION – GENERALLY – where the applicant was found guilty of speeding in the Magistrates Court by the first respondent – where the applicant contended that the fine imposed by the first respondent was inconsistent with s 115 of the Commonwealth Constitution, which states “the state shall not coin money nor make anything but gold and silver coin a legal tender in payment of debts” - where the applicant filed an application for judicial review pursuant to the Judicial Review Act 1991 (Qld) – where the applicant argued he was precluded from seeking appellate relief in the District Court as the District Court sought to enforce the fine before hearing an appeal – where the applicant named Magistrate Cornack as the only respondent in the application – where it was ordered that the Commissioner for Police be joined as a second respondent – where the applicant sought an order in the nature of certiorari – where the applicant sought for the decision of the first respondent be set aside – where the applicant sought for the ‘right of the applicant’ to be formally acknowledged by the Court – whether the application for judicial review should be dismissed

Judicial Review Act 1991 (Qld), ss 4, 20 and 43

Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Re Skyring’s Application (No 2) (1995) 59 ALJR 561
Stubberfield v Webster [1996] 2 Qd R 211; [1995] QSC 182

COUNSEL:

The applicant appeared on his own behalf
R Marsh (Sol) for the first respondent
K M Boileau (Sol) for the second respondent

SOLICITORS:

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

On 2 September 2011, the applicant, Leonard William Clampett, was found guilty by the first respondent Magistrate of the traffic offence of speeding. He was convicted and fined $200, and ordered to pay $76.90 court costs. He was also ordered to pay the prosecution’s out of pocket expenses for an expert witness, fixed at $3,500. The Magistrate concluded that it was necessary for the prosecution, in view of the defence sought to be mounted by the applicant, to call the expert witness, who was required to travel from Melbourne, stay overnight in Brisbane, assess the site, review the evidence, and give evidence before the Magistrate.

The applicant had been charged with driving at a speed of 73 kph in a 60 kph zone.…

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 Clampett v Magistrate Cornack

Details

AGLC: Clampett v Magistrate Cornack [2012] QSC 123
Case: [2012] QSC 123
Decision Date: 4 May 2012

CaseChat Overview and Summary

The court was asked to consider the case of Clampett, who sought judicial review of a speeding conviction by Magistrate Cornack. Clampett contended that the fine imposed on him was unconstitutional, as it contravened section 115 of the Commonwealth Constitution, which stipulates that only gold and silver coin can be made legal tender. He argued that the fine, being a monetary penalty, should not have been enforced as it did not comply with the constitutional requirement. Clampett filed his application for judicial review under the Judicial Review Act 1991 (Qld), naming only Magistrate Cornack as the respondent, despite the Commissioner for Police also being involved in enforcing the fine.

The central legal issue before the court was whether the application for judicial review should proceed, specifically focusing on whether the court had the discretion to dismiss the application due to the applicant's failure to name all relevant parties. The court needed to determine if the omission of the Commissioner for Police as a respondent at the initial stage of the application was a fatal defect that precluded the court from entertaining the application. Additionally, the court had to consider whether the applicant's contentions about the constitutionality of the fine had any merit and if they were properly before the court.

The court found that the omission of the Commissioner for Police as a respondent was indeed a significant procedural defect. It concluded that the applicant's failure to name all relevant parties in the application was a matter within the court's discretion to dismiss the application. The court held that the application did not meet the requirements for judicial review as it did not include all necessary parties. Furthermore, the court dismissed the substantive arguments regarding the constitutionality of the fine, finding them to be without merit. Consequently, the court decided to dismiss the application on the basis of procedural grounds.

The court ordered that the application filed on 22 September 2011 be dismissed. The dismissal was based on the procedural defect of not naming all relevant parties in the application for judicial review. The court did not address the substantive arguments concerning the constitutionality of the fine, as it determined that the application was not properly before it due to the failure to include all necessary respondents.

Orders

Orders of the court

The application filed 22 September 2011 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Clampett v Magistrate Cornack [2012] QSC 123
PARTIES:	LEONARD WILLIAM CLAMPETT (plaintiff) v MAGISTRATE CORNACK (first respondent) AND COMMISSIONER FOR POLICE, QUEENSLAND (second respondent)
FILE NO:	8490 of 2011
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	4 May 2012
DELIVERED AT:	Brisbane
HEARING DATE:	9 January 2012
JUDGE:	Daubney J
ORDER:	The application filed 22 September 2011 be dismissed.
CATCHWORDS:	ADMINSITRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISCRETION NOT TO ENTERTAIN AN APPLICATION – GENERALLY – where the applicant was found guilty of speeding in the Magistrates Court by the first respondent – where the applicant contended that the fine imposed by the first respondent was inconsistent with s 115 of the Commonwealth Constitution, which states “the state shall not coin money nor make anything but gold and silver coin a legal tender in payment of debts” - where the applicant filed an application for judicial review pursuant to the Judicial Review Act 1991 (Qld) – where the applicant argued he was precluded from seeking appellate relief in the District Court as the District Court sought to enforce the fine before hearing an appeal – where the applicant named Magistrate Cornack as the only respondent in the application – where it was ordered that the Commissioner for Police be joined as a second respondent – where the applicant sought an order in the nature of certiorari – where the applicant sought for the decision of the first respondent be set aside – where the applicant sought for the ‘right of the applicant’ to be formally acknowledged by the Court – whether the application for judicial review should be dismissed Judicial Review Act 1991 (Qld), ss 4, 20 and 43 Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Re Skyring’s Application (No 2) (1995) 59 ALJR 561 Stubberfield v Webster [1996] 2 Qd R 211; [1995] QSC 182
COUNSEL:	The applicant appeared on his own behalf R Marsh (Sol) for the first respondent K M Boileau (Sol) for the second respondent
SOLICITORS:	The applicant appeared on his own behalf Crown Law for the first respondent Queensland Police Service Solicitors for the second respondent