Freilich v Pirie

[2006] QSC 369

[2006] QSC 369

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ROBIN A/J

No BS8212 of 2006

DAVID MARTIN FREILICH	Applicant
and
MS PIRIE, MAGISTRATE	Respondent

BRISBANE

..DATE 09/11/2006

ORDER

CATCHWORDS: Judicial Review Act 1991 s 13, s 48 - application for review dismissed (with costs) on first return date - applicant already pursuing an appeal in the District Court against convictions by the respondent Magistrate - application for review sought removal of respondent from the "judicial registry"

HIS HONOUR:  This is the first return date of an "application for review" filed by Mr Freilich on the 30th of October 2006.

It claims that the respondent, a Magistrate, breached rules of natural justice in relation to the making of a decision in a proceeding heard in the Magistrates Court at Southport on the 19th of July 2006.  The claim is further that the respondent's decision involved an error of law and that she "breached the rules of natural justice in relation to the conduct of the hearing."  The relief sought is that the respondent "be struck off the judicial registry."

The Judicial Review Act 1991 is relied on by Mr Freilich as the basis of this Court's jurisdiction. He pointed to section 20(1) and presented himself as a person "aggrieved by a decision." What he has overlooked is that the decision must be one "to which this Act applies." The definition in section 4 makes it abundantly clear that only a decision of an administrative character is covered. There is no basis in section 20 for the Court's having jurisdiction.

The respondent, through Mr McLeod, had surmised that the application was brought not under Part 2 of the Act where section 20 appears, but under Part 5 which is the present repository of the law about prerogative orders.  Applications for those are now to be made by way of application for review.

I may say that the substantive relief sought in the application is not, so far as I can tell, relief which this Court is able to grant.  Mr Freilich's approach when pressed is not that the Magistrate's name would be struck off any "judicial registry" (there being no such thing), but off the list of legal practitioners for the State.  It might well follow if a judicial officer were struck off that list that the judicial office could no longer be held.  

It is not to the Supreme Court that applications for relief of the kind identified as intended are made, but to the new Legal Practitioners Tribunal.  Once again this Court has no jurisdiction.  I may say that so far as I know it is unheard of for a judicial officer to lose office in a proceeding instituted by a disappointed litigant in his or her Court.

Mr McLeod has not submitted that there is no jurisdiction in the Court to entertain an application for judicial review in respect of a court proceeding. He has not made any submission about the dramatic nature of the relief sought in relation to the "judicial registry" and perhaps have no need to, but he does rely on sections 13 and 48 of the Act and the pendency of a District Court appeal being pursued by Mr Freilich against the Magistrate's decision. That is the conventional way of having the decision reviewed.

It appears to me that there are prospects of every criticism of the Magistrate's performance which Mr Freilich might wish to ventilate, matters of exclusion of evidence and the like, being raised in the District Court appeal.  Consistently with what is said above, there is no prospect, I would think, of any direct order in the District Court leading to the Magistrate losing her office but, of course, trenchant enough criticisms of her performance might lead to appropriate steps being embarked upon with a view to achieving that dramatic outcome.

Section 13 requires this Court to dismiss the application if satisfied it should do so in circumstances where "provision is made by a law other than this Act under which the applicant is entitled to seek a review of the matter by another court." That describes the situation in respect of the District Court appeal. Section 13 is without prejudice to section 48 having full effect. That is another basis available to the Court today for dismissing the application, whether it is made under section 20 or section 43.

In a decision embodied in an order made on the 20th of October 2006 the Chief Justice proceeded in that way in respect of an earlier application by Mr Freilich which was filed on the 27th of September 2006.  The District Court appeal was underway at that time. 

Mr Freilich submits that the circumstances have changed in that he has identified more deficiencies in the Magistrate's performance as he sees things, also in that he has changed the description of the relief sought. 

The original application, in my opinion, is indistinguishable except that the substantive relief sought in it did not relate to removal of the Magistrate from the "judicial registry" or speaking more generally from her office but rather sought an order that her decision be overturned and replaced by one in Mr Freilich's favour.  Alternatively, there was sought an annulment of the convictions and a hearing de novo before a different Magistrate "able to demonstrate impartiality." 

The duplication of the District Court appeal is more glaring in relation to that earlier application but the principle to be applied seems to me to be the same and in the circumstances I make the same order as was made by the Chief Justice dismissing the application.  It would be idle to allow it to proceed any further.

Application dismissed.

MR McLEOD:  Your Honour, the respondent seeks costs.

HIS HONOUR:  What does the Act say about that?  Is there some difficulty?

MR McLEOD: No, there's no - your general powers under the UCPR. There's an actual cost regime for an application under 49 section.

HIS HONOUR:  There's nothing in the Act?

MR McLEOD:  No.  The power to award costs is - doesn't arise under the Act, it's just under the rule.

HIS HONOUR:  But does the Act say anything about costs?

MR McLEOD:  Only in respect of costs application under section 49.  It's a whole separate regime‑‑‑‑‑

HIS HONOUR:  Yes.

MR McLEOD:  ‑‑‑‑‑for an applicant, if public interest issues are relevant, et cetera, can make an application for a costs - it's called a costs application but that doesn't apply here.

HIS HONOUR:  What do you want to say about the costs aspects, Mr Freilich?

APPLICANT:  I believe that the current application was brought in good faith in service of the residents or the citizens of Queensland and it was done on their behalf and I believe that in the interests of the citizens of Queensland the application should be dismissed.  It was done fair and honestly for the purposes of servicing the residents or the citizens of Queensland.

HIS HONOUR:  What you're attesting is the entitlement of the State to require people to display their traditional registration sticker and registration plates on vehicles.  That's‑‑‑‑‑

APPLICANT:  Your Honour, I agree‑‑‑‑‑

HIS HONOUR:  That's what you're challenging.

APPLICANT:  Not in this particular matter, no.  That was what - that's the matter that's under appeal but this particular matter is simply the issue of the conduct of the respondent.

HIS HONOUR:  Yes.

APPLICANT:  Which I believe for the citizens of Queensland is a problem for the judicial system, yes.  Your Honour, I also mention section 21 of the Act which you didn't cover in your statement so far.

HIS HONOUR: Yes, all right. It's true that you mentioned it but I treated it as part and parcel of the section 20 situation. I mean, I think section 48 mentions 20, 21 and 22, doesn't it? They're dealt with as a batch. Well, I mean, I can't accept what - although I'm not denying your good faith, Mr Freilich, I'm unable to see that your claim should be assessed as having the damages to the general public which - and the general public interest which you assert. It seems to be rather that it's mischievous that judicial officers, magistrates or otherwise, shouldn't be faced with applications like this. Yours will be dismissed with costs.

HIS HONOUR:  Dismissed with costs.

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