Fuller v Lawrence

Case [2023] QCA 257

SUPREME COURT OF QUEENSLAND

CITATION:

Fuller & Anor v Lawrence [2023] QCA 257

PARTIES:

BIANCA FULLER

CHIEF EXECUTIVE OF QUEENSLAND CORRECTIVE SERVICES
(first appellant)
v
MARK LAWRENCE
(second appellant)(respondent)

FILE NO/S:

Appeal No 9598 of 2023
SC No 2257 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2023] QSC 156 (Applegarth J)

DELIVERED ON:

15 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2023

JUDGES:

Bowskill CJ and Morrison and Bond JJA

ORDERS:

1.   Appeal dismissed.

2.   The appellants pay the respondent’s costs of the appeal.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – where the appellants gave a direction to the respondent limiting the respondent’s contact with a particular person pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the respondent requested reasons for the direction – where the appellants refused to give the respondent reasons under the Judicial Review Act 1991 (Qld) – where the primary judge ruled that the respondent was entitled to a statement of reasons under s 33 of the Judicial Review Act 1991 (Qld) – where the appellants submitted that the primary judge erred in finding that the direction was a decision under an enactment – whether the direction is a decision made under an enactment within the meaning of the Judicial Review Act 1991 (Qld)

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 16, s 16C
Judicial Review Act 1991 (Qld), s 3, s 4(a), s 33

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, considered
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, applied
Nona v Barnes [2013] 2 Qd R 528; [2012] QCA 346, considered

COUNSEL:

A D Scott KC with P K O’Higgins KC for the appellants
M Black for the respondent

SOLICITORS:

Crown Law for the appellants
Suncoast Community Legal Service for the respondent

  1. BOWSKILL CJ:  I agree with the reasons of Morrison JA and the further reasons of Bond JA and with the orders proposed.

  2. MORRISON JA:  The respondent is a prisoner released under a supervision order made on 16 April 2020 pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).[1]

    [1]To which I shall refer as the DPSOA.

  3. In November 2022 a Corrective Services Officer gave a direction to the respondent, approving phone contact with a particular person, including facetime or video calls, but denying the respondent’s request to have in-person contact with that person.  The supervision order permitted such a direction to be given.

  4. The respondent requested reasons for the direction in so far as it denied in-person contact.  The appellant’s response was that the respondent was not entitled to a statement of reasons under the Judicial Review Act 1991 (Qld).[2]

    [2]To which I shall refer as the JRA.

  5. The respondent issued proceedings under s 38 of the JRA seeking that…

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AGLC
Fuller v Lawrence [2023] QCA 257
Case
[2023] QCA 257
Decision Date

CaseChat Overview and Summary

In the case of Fuller v Lawrence, the appellants, who are responsible for overseeing certain prisoners, directed the respondent to limit his contact with a specific individual. The respondent requested reasons for this direction but was refused. The primary judge determined that the respondent was entitled to a statement of reasons under the Judicial Review Act 1991 (Qld). The appellants contested this ruling, arguing that the primary judge erred in finding that the direction was a decision under an enactment.

The primary legal issue the court had to decide was whether the direction given by the appellants to the respondent was a decision made under an enactment within the meaning of the Judicial Review Act 1991 (Qld). The appellants argued that the primary judge misapplied the test established in Griffith University v Tang, by not considering whether the direction itself altered legal rights. The appellants submitted that the direction did not alter or affect legal rights independently, and that the legal consequences of non-compliance flowed from the supervision order, not the direction itself.

The court found that the direction was indeed a decision under an enactment. The decision in Griffith University v Tang sets out a two-part test for determining whether a decision is made under an enactment. The first part requires the decision to be expressly or impliedly required or authorised by the enactment. The second part requires the decision to confer, alter, or otherwise affect legal rights or obligations. The court concluded that the direction met both criteria. Although the appellants argued that the direction did not alter legal rights by itself, the court held that the direction derived its authority from the enactment and that it was sufficient that the enactment required or authorised decisions from which new rights or obligations arise. Therefore, the primary judge's ruling that the respondent was entitled to a statement of reasons was correct.

The court dismissed the appeal and ordered the appellants to pay the respondent’s costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellants pay the respondent’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A decision by the Supreme Court to make a supervision order is the result of a rigorous, independent and impartial exercise of judicial power by the Court.[7][7]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 502 [19], 596 [34], 602 [44], 614 [90] to 621 [113], 647 [196] and 656 [220]-[224].Is the direction a decision under an enactment? Except in one respect there was no dispute as to the applicable principles before this Court. In Griffith University v Tang,[8] Gummow, Callinan and Heydon JJ stated the relevant test as follows:“The determination of whether a decision is ‘made … under an enactment’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be ‘made … under an enactment’ if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.”[8](2005) 221 CLR 99 at [89]. For the reasons explained earlier the direction was one expressly or impliedly authorised by the DPSOA. The first requirement in Tang is therefore met. As for the second requirement, that was at the heart of the appellant’s contention on appeal. Focussing on the phrase “decision must itself confer, alter or otherwise affect legal rights or obligations”, the appellant submitted that the decision itself did not alter or otherwise affect legal rights, because that was done by the supervision order. The contention was that the learned primary judge erred in the application of the test in Tang, by failing to consider if the direction itself altered rights:[9]“18.The error of the primary judge was to fail to apply the word ‘itself’ in the second limb of the Tang test. The primary judge found that the direction affected rights. However, the primary judge did not consider whether that affect was the product of the direction of the Corrective Services Officer ‘itself’ (i.e. without the intervention of the order). The primary judge then reasoned that the second limb of the Tang test was satisfied on the basis that this affect on rights was derived from the DPSO Act.”[9]Appellant’s outline, paragraph 18. Footnotes omitted. As it was put:[10]“27.It cannot be said that the direction ‘itself’ affected rights. Without the supervision order, the direction has no legal effect. The relevant legal obligation imposed on the Respondent to do what the direction says is imposed by the supervision order, rather than the direction ‘itself’. Legal consequences flow from any failure by the Respondent to comply with the direction because it is a breach of the order, rather than because it is a breach of the direction.28.The position can be tested by consideration of the effect of any order by the Supreme Court quashing or setting aside the direction in a review of it under Part 3 of the JR Act. A quashing or setting aside order would only quash or set aside the legal effect of the direction. It would not remove the fact of the direction having been made. Provided that the direction meets the description of a direction under the supervision order, the Respondent would continue to be bound to comply with the direction and liable to possible contravention and offence proceedings if he does not. That is because the legal effect of the direction comes from the supervision order rather than the direction ‘itself’. While the supervision order stands, any order quashing or setting aside the direction will have no legal effect.”[10]Appellant’s outline, paragraphs 27-28.

Ratio Decidendi

Legal Principle Established

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