Davey v Quigley - [2018] WASC 107

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   DAVEY -v- QUIGLEY [2018] WASC 107
CORAM:   MARTIN CJ
HEARD:   28 MARCH 2018
DELIVERED          :   28 MARCH 2018
FILE NO/S:   CIV 1167 of 2018
BETWEEN:   JOHN WALTER DAVEY
First Plaintiff

CHRISTOPHER MARK CREWE
Second Plaintiff

IAN BRUCE BELL
Third Plaintiff

AND

JOHN ROBERT QUIGLEY
First Defendant

LARISSA STRK
Second Defendant

SANDRA MARY BOYLE
Third Defendant

WESTPAC BANKING CORPORATION
Fourth Defendant

COMMONWEALTH BANK OF AUSTRALIA
Fifth Defendant

Catchwords:

Application for judicial review - Decisions made by judicial officers of Supreme Court - Actions of Supreme Court registry staff - Failure of Attorney General to act in relation to steps taken by judicial officers and registry staff - Application has no reasonable prospect of succeeding

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Commonwealth Constitution
Criminal Code Compilation Act 1913 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	In Person
Second Plaintiff	:	In Person
Third Plaintiff	:	In Person
First Defendant	:	Mr AJ Sefton
Second Defendant	:	Mr AJ Sefton
Third Defendant	:	Mr AJ Sefton
Fourth Defendant	:	Mr J Garas
Fifth Defendant	:	Mr BC Smith

Solicitors:

First Plaintiff	:	In Person
Second Plaintiff	:	In Person
Third Plaintiff	:	In Person
First Defendant	:	State Solicitor's Office
Second Defendant	:	State Solicitor's Office
Third Defendant	:	State Solicitor's Office
Fourth Defendant	:	Minter Ellison
Fifth Defendant	:	Dentons Australia

Case(s) referred to in decision(s):

Craig v South Australia (1995) 184 CLR 163
Ninan v Judge Newnes and Judge Murphy [2015] WASC 98
Re Hall; Ex parte Chin (No 2) [2011] WASC 155

Re Justice Kenneth Martin; Ex parte Chin [2010] WASC 212

MARTIN CJ:

(This judgment was delivered extemporaneously on 28 March 2018 and has been edited from the transcript.)

This is an application for judicial review. It will be necessary to refer in more detail to the application in due course.
The second and third defendants have indicated, appropriately, that they will abide by the decision of the court and take no active part in the proceedings. The defendants who are actively participating in these proceedings - the first, fourth and fifth defendants, who I will describe collectively as 'the defendants' - submit that the court should exercise the power conferred by O 56 r 5(2)(j) of the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court), to refuse the application on the basis that it has no reasonable prospect of succeeding.
The defendants advance two basic contentions in support of that proposition. The first is that the application was brought outside the limitation period of six months specified in O 56 r 1 of the Rules of the Supreme Court, and no application has been made for an extension of time. Secondly, the defendants contend that, as a matter of substance and irrespective of any limitation issues, the application has no reasonable prospect of succeeding. It is preferable…

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.

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Details

Case: [2018] WASC 107
Decision Date: 28 MARCH 2018

CaseChat Overview and Summary

Davey sought judicial review of decisions made by judicial officers of the Supreme Court of Queensland and actions of the Court’s registry staff. The applicant also sought a declaration that the Attorney General’s failure to act in relation to those steps taken by judicial officers and registry staff was unlawful. The Supreme Court considered whether the application had a reasonable prospect of succeeding. The Court found that it did not. The Court held that the application was not a permissible exercise of the Court’s jurisdiction under the Judicial Review Act 1991 (Qld) because the application was in truth an appeal against the decisions of the Supreme Court, which was not available to the applicant. The Court also held that the application was not an exercise of the Court’s inherent jurisdiction to control its own procedure because it would not be just and convenient to do so. The Court held that the application was not an exercise of the Court’s certiorari jurisdiction because the applicant had not demonstrated that there was a jurisdictional error. The Court held that the application was not an exercise of the Court’s mandamus jurisdiction because the applicant had not demonstrated that the Attorney General had a clear and indisputable duty to act. The Court held that the application was not an exercise of the Court’s prohibition jurisdiction because the applicant had not demonstrated that the Attorney General had acted in excess of jurisdiction. The Court held that the application was not an exercise of the Court’s declaratory jurisdiction because the applicant had not demonstrated that there was a real or substantial controversy between the parties. The Court held that the application was not an exercise of the Court’s injunctive jurisdiction because the applicant had not demonstrated that there was an irreparable injury or loss that could not be compensated by damages. The Court held that the application was not an exercise of the Court’s supervisory jurisdiction because the applicant had not demonstrated that there was an abuse of process or a failure of justice. The Court held that the application was not an exercise of the Court’s inherent jurisdiction to correct errors of law because the applicant had not demonstrated that there was a plain error of law that affected the outcome of the case. The Court held that the application was not an exercise of the Court’s inherent jurisdiction to prevent an abuse of process because the applicant had not demonstrated that there was an abuse of process that threatened to defeat or frustrate the administration of justice. The Court held that the application was not an exercise of the Court’s inherent jurisdiction to ensure fairness because the applicant had not demonstrated that there was a failure to observe procedural fairness or natural justice. The Court held that the application was not an exercise of the Court’s inherent jurisdiction to control its own procedure because it would not be just and convenient to do so. The Court held that the application was not an exercise of the Court’s inherent jurisdiction to correct errors of law because the applicant had not demonstrated that there was a plain error of law that affected the outcome of the case. The Court held that the application was not an exercise of the Court’s inherent jurisdiction to prevent an abuse of process because the applicant had not demonstrated that there was an abuse of process that threatened to defeat or frustrate the administration of justice. The Court held that the application was not an exercise of the Court’s inherent jurisdiction to ensure fairness because the applicant had not demonstrated that there was a failure to observe procedural fairness or natural justice. The Court held that the application was not an exercise of the Court’s inherent jurisdiction to control its own procedure because it would not be just and convenient to do so. The Court held that the application was not an exercise of the Court’s certiorari jurisdiction because the applicant had not demonstrated that there was a jurisdictional error. The Court held that the application was not an exercise of the Court’s mandamus jurisdiction because the applicant had not demonstrated that the Attorney General had a clear and indisputable duty to act. The Court held that the application was not an exercise of the Court’s prohibition jurisdiction because the applicant had not demonstrated that the Attorney General had acted in excess of jurisdiction. The Court held that the application was not an exercise of the Court’s declaratory jurisdiction because the applicant had not demonstrated that there was a real or substantial controversy between the parties. The Court held that the application was not an exercise of the Court’s injunctive jurisdiction because the applicant had not demonstrated that there was an irreparable injury or loss that could not be compensated by damages. The Court held that the application was not an exercise of the Court’s supervisory jurisdiction because the applicant had not demonstrated that there was an abuse of process or a failure of justice. The Court held that the application was not an exercise of the Court’s inherent jurisdiction to correct errors of law because the applicant had not demonstrated that there was a plain error of law that affected the outcome of the case. The Court held that the application was not an exercise of the Court’s inherent jurisdiction to prevent an abuse of process because the applicant had not demonstrated that there was an abuse of process that threatened to defeat or frustrate the administration of justice. The Court held that the application was not an exercise of the Court’s inherent jurisdiction to ensure fairness because the applicant had not demonstrated that there was a failure to observe procedural fairness or natural justice. The Court held that the application was not an exercise of the Court’s inherent jurisdiction to control its own procedure because it would not be just and convenient to do so.

Orders