Eastman v Besanko

[2009] ACTSC 10

David Harold Eastman v The Honourable Justice Anthony James Besanko [2009] ACTSC 10 (18 February 2009)

CATCHWORDS

JUDICIAL REVIEW – administrative decision made under an enactment – whether refusal to issue an order for inquiry into past conviction affects legal rights – there was no right to the issue of an order both before and after the decision was made – Wednesbury unreasonableness – whether decision is based on findings or inferences wholly unsupported by some probative material or logical grounds

HELD – the decision to refuse to order an inquiry into the conviction of the plaintiff was not a decision made under an enactment and therefore not subject to judicial review

Evidence Act 1995 (Cth) ss 84, 90, 130
Crimes Act 1900 (ACT) ss 422, 423, 424, 425
Administrative Decisions (Judicial Review) Act 1989 (ACT) ss 3A(1), 5(1), 5(1)(e), 5(2)(g), 17
Administrative Decisions (Judicial Review) Act 1991 (Qld)

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 applied
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 referred to
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Buck v Bavone (1976) 135 CLR 110 referred to
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 applied
Griffith University v Tang (2005) 221 CLR 99 applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied
Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 applied

No. SC 362 of 2008

Judge:          Edmonds J
Supreme Court of the ACT
Date:           18 February 2009

IN THE SUPREME COURT OF THE       )
  )          No. SC 362 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN: DAVID HAROLD EASTMAN

Plaintiff

AND: THE HONOURABLE JUSTICE ANTHONY JAMES BESANKO

Defendant

AND:ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY

Intervenor

ORDER

Judge:  Edmonds J
Date:  18 February 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The plaintiff pay the intervenor’s costs.

INTRODUCTION

1. In response to an application by the plaintiff dated 2 February 2005, on 4 April 2008 this Court refused to make an order that an inquiry, under Part 20 of the Crimes Act 1900 (ACT) (‘the Crimes Act’), be held into the plaintiff’s conviction for the murder of Mr Colin Stanley Winchester on 3 November 1995.

1. At the time of refusing to make the order, the Court published its reasons for reaching that conclusion.

THE PRESENT APPLICATION

1. On 6 May 2008, the plaintiff filed an application in this Court for review of the Court’s refusal to make the order (‘the decision’) in reliance on s 5(1) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (‘the ADJR Act’) seeking orders quashing the decision and directing the defendant to order an inquiry under s 424 of the Crimes Act.

1. The sole ground of the application was that the making of the decision was an improper exercise of the power given by the enactment under which it was purported to be made (s 5(1)(e)…