DU v Jackson (DCJ) - [2023] QSC 185

SUPREME COURT OF QUEENSLAND

CITATION:

DU v Jackson (DCJ) & Anor [2023] QSC 185

PARTIES:

DU
(Applicant)
v
Rowan Jackson (DCJ)

(First Respondent)
AND
Commissioner of Police
(Second Respondent)

FILE NO:

BS 7965 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

11 July 2023

JUDGE:

Martin SJA

ORDER:

1. Leave to issue the originating application is refused.

2. I will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – GENERALLY – where the applicant’s originating application was referred to the applications’ Judge pursuant to r 15 of the Uniform Civil Procedure Rules 1999 (Qld) – where the Court directed the Registrar to refuse to file the originating process without leave of the Court – where the applicant applied for leave to issue an originating application for judicial review – whether the originating application discloses a reasonable cause of action – whether the originating application is frivolous, vexatious or an abuse of process

Domestic and Family Violence Protection Act 2012 (Qld) ss 41C, 151, 169
Judicial Review Act (Qld) ss 43, 46, 48
Uniform Civil Procedure Rules 1999 (Qld) r 15

Craig v South Australia (1995) 184 CLR 163

DU v TG & Anor [2022] QDC 247
DU v TG & Anor [2022] QCA 225
DU v TG & Anor [2023] HCASL 79
McEwan v Merrin (Magistrate) [2023] QSC 6
Stanley v Director of Public Prosecution (NSW) (2023) 407 ALR 222; [2023] HCA 3

COUNSEL:

Litigant in person for the applicant
K Pitman (sol) for the first respondent

G Elmore for the second respondent

SOLICITORS:

Litigant in person for the applicant
G R Cooper, Crown Solicitor for the first respondent

QPS Legal Service for the second respondent

This is an application for leave to commence proceedings following an order pursuant to r 15 of the Uniform Civil Procedure Rules 1999 (UCPR).
The second respondent has filed a cross application to stay the proceedings pursuant to section 48 of Judicial Review Act 1991 (Qld) (the JR Act), but accepted that that application should only be considered if leave to commence proceedings were granted.
The background to this application
It is necessary to set out some history of the matter to understand why leave is required.
The relevant background is:
(a)   on 2 March 2022, orders were made in the Southport Magistrates Court under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act). These were final orders on a police protection notice against the applicant and a refusal of the applicant’s cross-application for a protection order against TU;
(b)   on 30 March 2022, the applicant filed a notice of appeal which was heard by Judge Jackson;
(c)   on 16 September 2022, his Honour gave judgment in which he dismissed the appeal for the protection order against the applicant, allowed the cross-application appeal and remitted the matter to the Southport Magistrates Court (the Decision).[1] The remitted…

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 DU v Jackson (DCJ)

Details

AGLC: DU v Jackson (DCJ) [2023] QSC 185
Case: [2023] QSC 185
Decision Date: 23 August 2023

CaseChat Overview and Summary

The applicant, DU, sought leave to file an application for judicial review of a decision made by Judge Jackson in an appeal under the Domestic and Family Violence Protection Act 2012 (Qld). The application was referred to the Court pursuant to UCPR r 15. The second respondent, who had filed a cross application to stay the proceedings, opposed the grant of leave on the basis that the application was frivolous and vexatious. The court was required to determine whether the application disclosed a reasonable cause of action and whether it was frivolous, vexatious, or an abuse of process.

The court considered the history of the matter, which included a series of appeals and applications for leave to appeal that had all been dismissed. The court noted that the applicant had attempted to file an application for review of the decision but had been directed to seek leave of the Court. The court found that the application did not disclose a reasonable cause of action and was, in fact, frivolous and vexatious. The court also found that the applicant had acted in bad faith by filing the application for review despite knowing that leave was required.

The court refused the applicant leave to issue the originating application and ordered that the parties be heard as to costs. The court found that the applicant's conduct warranted an order for costs against the applicant.

Orders

Orders of the court

1. Leave to issue the originating application is refused.

2. I will hear the parties as to costs.

Background

Background to the litigation

The second respondent has filed a cross application to stay the proceedings pursuant to section 48 of Judicial Review Act 1991 (Qld) (the JR Act), but accepted that that application should only be considered if leave to commence proceedings were granted. The background to this application It is necessary to set out some history of the matter to understand why leave is required. The relevant background is:(a) on 2 March 2022, orders were made in the Southport Magistrates Court under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act). These were final orders on a police protection notice against the applicant and a refusal of the applicant’s cross-application for a protection order against TU; (b) on 30 March 2022, the applicant filed a notice of appeal which was heard by Judge Jackson; (c) on 16 September 2022, his Honour gave judgment in which he dismissed the appeal for the protection order against the applicant, allowed the cross-application appeal and remitted the matter to the Southport Magistrates Court (the Decision).[1] The remitted cross-application had not been finalised at the time of hearing this application; (d) on 14 October 2022, the applicant filed an appeal in the Court of Appeal; (e) on 15 November 2022, Mullins P struck out the appeal on the basis of lack of jurisdiction;[2] (f) on 3 February 2023, the applicant filed an application for special leave to appeal in the High Court; (g) on 18 May 2023, the High Court dismissed the application;[3](h) on 12 June 2023, the applicant attempted to file an application for review of the Decision (the JR Application); (i) the Registrar referred the JR Application to Justice Burns pursuant to rule 15 of the UCPR; (j) on 13 June 2023, Justice Burns directed the Registrar to refuse to issue the JR Application without leave of the Court; (k) the applicant was notified of this requirement on 16 June 2023; and(l) on 30 June 2023, the applicant filed an originating application seeking “leave to issue a prerogative order of review, pursuant to sections 41-47 of the Act”. This leave is opposed by the second respondent. [1]DU v TG & Anor [2022] QDC 247. [2]“As the District Court has exercised appellate jurisdiction under the [DFVP] Act in the applicant’s matter, its decision is final and conclusive pursuant to s 169(2) of the Act, and there is no basis for relying on the definition of appellate court to undermine the clear structure of the Act, and the policy decision of the parliament reflected in s 169(2) of the Act, that there is one appeal from an original decision made under the Act.” DU v TG & Anor [2022] QCA 225. [3]DU v TG & Anor [2023] HCASL 79.What is required for the court to grant leave? UCPR r 15 provides:(1)If the registrar considers an originating process appears to be an abuse of the process of the court or frivolous or vexatious, the registrar may refer the originating process to the court before issuing it. (2)The court may direct the registrar–(a) to issue the originating process; or (b)to refuse to issue the originating process without leave of the court.

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:	DU v Jackson (DCJ) & Anor [2023] QSC 185
PARTIES:	DU *(Applicant)* v *Rowan Jackson (DCJ)* (First Respondent) AND Commissioner of Police (Second Respondent)
FILE NO:	BS 7965 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 August 2023
DELIVERED AT:	Brisbane
HEARING DATE:	11 July 2023
JUDGE:	Martin SJA
ORDER:	*1. Leave to issue the originating application is refused.* *2. I will hear the parties as to costs.*
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – GENERALLY – where the applicant’s originating application was referred to the applications’ Judge pursuant to r 15 of the Uniform Civil Procedure Rules 1999 (Qld) – where the Court directed the Registrar to refuse to file the originating process without leave of the Court – where the applicant applied for leave to issue an originating application for judicial review – whether the originating application discloses a reasonable cause of action – whether the originating application is frivolous, vexatious or an abuse of process Domestic and Family Violence Protection Act 2012 (Qld) ss 41C, 151, 169 Judicial Review Act (Qld) ss 43, 46, 48 Uniform Civil Procedure Rules 1999 (Qld) r 15 Craig v South Australia (1995) 184 CLR 163 DU v TG & Anor [2022] QDC 247 DU v TG & Anor [2022] QCA 225 DU v TG & Anor [2023] HCASL 79 McEwan v Merrin (Magistrate) [2023] QSC 6 Stanley v Director of Public Prosecution (NSW) (2023) 407 ALR 222; [2023] HCA 3
COUNSEL:	Litigant in person for the applicant K Pitman (sol) for the first respondent G Elmore for the second respondent
SOLICITORS:	Litigant in person for the applicant G R Cooper, Crown Solicitor for the first respondent QPS Legal Service for the second respondent