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Eastman v Besanko

Eastman v Besanko

Case [2010] ACTCA 15 17 August 2010

Judicial Review

Appeal

Jurisdiction

Statutory Construction

Statutory Interpretation

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DAVID HAROLD EASTMAN v THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO; ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY [2010] ACTCA 15 (17 August 2010)

APPEAL – appeal from order dismissing application for judicial review of refusal to order inquiry into appellant’s conviction under s 424 Crimes Act 1900 (ACT) – whether refusal to order inquiry is a reviewable decision – whether proper construction of “doubt or question” was applied in refusing to order inquiry – whether refusal to order inquiry was affected by Wednesbury unreasonableness – no errors found – appeal dismissed.

PRACTICE AND PROCEDURE – whether written submissions received from self-represented litigant after the conclusion of a hearing should be considered – no prior leave granted to file further submissions – need to avoid preferential treatment for self-represented litigants – written submissions not considered.

ADMINISTRATIVE LAW – judicial review – application for judicial review under the Administrative Decisions (Judicial Review) Act 1989 (ACT) of refusal to order inquiry – whether refusal to order inquiry a decision – if refusal was a decision, whether it was a decision “made ... under an enactment” – application of Griffith University v Tang test – refusal to order inquiry did not confer, alter or otherwise affect legal rights or obligations – refusal to order an inquiry into conviction not a reviewable decision.

Judiciary Act 1903 (Cth), s 30B

Seat of Government Acceptance Act 1909 (Cth), s 6

Administrative Decisions (Judicial Review) Act 1989 (ACT), ss 3, 5, 17, 20, 21
Crimes Act 1900 (ACT), Pt 20, ss 422, 423, 424, 425, 426, 428, 429, 430, 431, 475
Crimes (Sentence Administration) Act2005 (ACT), s 313 et seq
Inquiries Act 1991 (ACT)
Legislation Act 2001 (ACT), Pt 14.2, ss 2, 7, 138, 139, 141, 142
Supreme Court Act 1933 (ACT), s 34B
Criminal Appeal Act 1912 (NSW)
Criminal Laws Amendment Act 1883 (NSW), ss 383, 384

Court Procedures Rules 2006 (ACT), Pt 5.4 r 5412(2)
Explanatory Memorandum for the Crimes Legislation Amendment Bill 2001 (ACT)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Barton v Walker [1979] 2 NSWLR 740
Brookfield Multiplex Ltd v International Funding Litigation Partners Pte Ltd (2009) 180 FCR 11
Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd [2009] FCA 750
Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543
David Eastman v the Honourable Justice Anthony James Besanko (2009) 223 FLR…

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 Eastman v Besanko

Details

AGLC: Eastman v Besanko [2010] ACTCA 15
Case: [2010] ACTCA 15
Decision Date

CaseChat Overview and Summary

The appeal concerned David Harold Eastman's challenge to the refusal by Justice Besanko to order an inquiry into his conviction for murder. The Attorney-General for the Australian Capital Territory was also a party. The primary dispute revolved around whether the refusal to order an inquiry constituted a reviewable decision under the Administrative Decisions (Judicial Review) Act 1989 (ACT) and, if so, whether the refusal was affected by legal error. The Court of Appeal of the Australian Capital Territory heard the appeal from a decision of the ACT Supreme Court that had dismissed Mr Eastman's application for judicial review.

The legal issues before the Court of Appeal were whether the refusal to order an inquiry was a "decision" to which the Administrative Decisions (Judicial Review) Act 1989 (ACT) applied, whether the refusal was affected by Wednesbury unreasonableness, and whether the refusal involved an error of law concerning the proper construction of the phrase "doubt or question" as used in section 422 of the Crimes Act 1900 (ACT). Additionally, the court considered whether written submissions lodged by Mr Eastman after the conclusion of the hearing should be considered.

The Court of Appeal held that the refusal to order an inquiry was not a reviewable decision under the Administrative Decisions (Judicial Review) Act 1989 (ACT). Applying the principles from *Griffith University v Tang*, the court found that the refusal did not confer, alter, or otherwise affect legal rights or obligations, and therefore did not derive from the relevant enactment in the manner required for a decision to be subject to judicial review. The court also determined that the further written submissions from Mr Eastman should not be considered, as no leave had been granted for their late filing and to avoid preferential treatment for self-represented litigants.

The appeal was dismissed. The appellant was ordered to pay the Intervenor's costs.

Orders