Dunkley v Queensland Corrective Services - [2013] QSC 261

SUPREME COURT OF QUEENSLAND

CITATION:

Dunkley v Queensland Corrective Services [2013] QSC 261

PARTIES:

JASON BRIAN DUNKLEY
(applicant)

v

QUEENSLAND CORRECTIVE SERVICES
(respondent)

FILE NO:

BS2221 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application for statutory order of review, interlocutory application for stay of proceeding

DELIVERED ON:

24 June 2013 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

24 June 2013

JUDGE:

Margaret Wilson J

ORDER:

1. The applicant’s application for a statutory order of review filed 11 March 2013 is dismissed.

2. The applicant is to pay the respondent’s costs of the application for a statutory order of review, and the application to stay the proceeding, on the standard basis as agreed or to be assessed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – STAY OF PROCEEDINGS AND INTERLOCUTORY RELIEF – where the applicant in the substantive application was subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where there was a condition of the supervision order that the applicant not have contact with his children or stepchildren except if agreed between the applicant and the child’s mother and subject to such conditions as directed by an authorised Corrective Services Officer – where respondent issued contact approval subject to a condition that the contact be supervised by the applicant’s mother-in-law – where the applicant sought an order of review of the decision of the respondent – where the imposition of condition was under the authority of, and pursuant to, a Court order – whether the decision was ‘made under an enactment’ within the meaning of the Judicial Review Act 1991 (Qld)

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), Pt 2 Div 3
Judicial Review Act 1991 (Qld), Pt 3, Pt 5

Griffith University v Tang (2005) 221 CLR 99, cited

COUNSEL:

The applicant appeared on his own behalf
AD Scott for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Crown Solicitor for the respondent

MARGARET WILSON J: In the substantive application in this proceeding, the applicant, Mr Dunkley, seeks a statutory order of review of “the decision of the respondent, made 7 October 2011, varying the Supreme Court order dated 23 August 2011”.

The grounds stated in the substantive application are:

“(1) A breach of the rules of natural justice has happened in relation to the making of the decision.
(2) The making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made in that (a) the Respondent took a personal and irrelevant consideration into account in the exercise of its power;
(b) the Respondent failed to take a relevant consideration into account in the exercise of its power;
(c) the Respondent exercised its power in bad faith.
(3) The decision of the Respondent was contrary to the rules of natural justice:
(a) there was no cogent evidence, to any degree of probability, before the Respondent that the Applicant posed any risk…

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 Dunkley v Queensland Corrective Services

Details

AGLC: Dunkley v Queensland Corrective Services [2013] QSC 261
Case: [2013] QSC 261
Decision Date: 24 June 2013 (ex tempore)

CaseChat Overview and Summary

Dunkley sought judicial review of a decision made by the Queensland Corrective Services in relation to his supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003. The supervision order contained a condition that Dunkley not have contact with his children or stepchildren, except under certain conditions. The respondent issued a contact approval subject to the condition that any contact be supervised by Dunkley's mother-in-law. Dunkley sought an order of review of the decision, arguing that the condition imposed was not 'made under an enactment' within the meaning of the Judicial Review Act 1991. The court was required to determine whether the decision of the respondent was 'made under an enactment' and thus subject to judicial review.

The court found that the decision was indeed made under an enactment, as it was pursuant to a Court order. However, the court held that the decision was not subject to judicial review because it was not a decision 'made under an enactment' within the meaning of the Judicial Review Act 1991. The court held that the decision was made under the authority of the Court order, and not under the authority of the enactment itself. The court further held that the decision was not a decision 'made under an enactment' because it was not a decision that was required or authorised by the enactment. Rather, it was a decision that was permitted by the enactment.

The applicant's application for a statutory order of review was dismissed. The court ordered that the applicant pay the respondent's costs of the application for a statutory order of review, and the application to stay the proceeding, on the standard basis as agreed or to be assessed. The court held that the decision was not subject to judicial review, and that the applicant had not demonstrated any grounds for review. The court further held that the decision was reasonable and in accordance with the law, and that there were no grounds for the applicant to challenge the decision.

Orders

Orders of the court

1. The applicant’s application for a statutory order of review filed 11 March 2013 is dismissed.

2. The applicant is to pay the respondent’s costs of the application for a statutory order of review, and the application to stay the proceeding, on the standard basis as agreed or to be assessed.

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:	Dunkley v Queensland Corrective Services [2013] QSC 261
PARTIES:	JASON BRIAN DUNKLEY (applicant) v QUEENSLAND CORRECTIVE SERVICES (respondent)
FILE NO:	BS2221 of 2013
DIVISION:	Trial Division
PROCEEDING:	Application for statutory order of review, interlocutory application for stay of proceeding
DELIVERED ON:	24 June 2013 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	24 June 2013
JUDGE:	Margaret Wilson J
ORDER:	1. The applicant’s application for a statutory order of review filed 11 March 2013 is dismissed. 2. The applicant is to pay the respondent’s costs of the application for a statutory order of review, and the application to stay the proceeding, on the standard basis as agreed or to be assessed.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – STAY OF PROCEEDINGS AND INTERLOCUTORY RELIEF – where the applicant in the substantive application was subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where there was a condition of the supervision order that the applicant not have contact with his children or stepchildren except if agreed between the applicant and the child’s mother and subject to such conditions as directed by an authorised Corrective Services Officer – where respondent issued contact approval subject to a condition that the contact be supervised by the applicant’s mother-in-law – where the applicant sought an order of review of the decision of the respondent – where the imposition of condition was under the authority of, and pursuant to, a Court order – whether the decision was ‘made under an enactment’ within the meaning of the Judicial Review Act 1991 (Qld) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), Pt 2 Div 3 Judicial Review Act 1991 (Qld), Pt 3, Pt 5 Griffith University v Tang (2005) 221 CLR 99, cited
COUNSEL:	The applicant appeared on his own behalf AD Scott for the respondent
SOLICITORS:	The applicant appeared on his own behalf Crown Solicitor for the respondent