GAB v Kan - [2018] QSC 161

SUPREME COURT OF QUEENSLAND

CITATION:

GAB v Kan & Anor [2018] QSC 161

PARTIES:

GAB
(applicant)
v
JAMES KAN
(first respondent)
and
DEPARTMENT OF COMMUNITIES CHILD SAFETY
(second respondent)

FILE NO/S:

SC No 10010 of 2017

DIVISION:

Trial

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 July 2018

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2018

JUDGE:

Holmes CJ

ORDERS:

The application is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – DECISIONS UNDER INSTRUMENTS – where the applicant seeks an order under s 38 of the Judicial Review Act 1991 that the respondents comply with his request for a written statement of reasons for a decision of the first respondent as an officer of the second respondent – where the first respondent decided to refuse the applicant information about a departmental investigation into the risk of harm to the daughter of his former de-facto partner – where the respondents contend that the application should be dismissed because the decision was not a decision of an administrative character made under an enactment – where the applicant contends that he falls within the definition of someone ‘having or exercising parental responsibility’ under s 11(1) of the Child Protection Act 1999 – whether the applicant had or could be given any right in respect of the information – whether the applicant could be said to have or exercise parental responsibility under the Child Protection Act 1999

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – DECISIONS UNDER INSTRUMENTS – where the applicant seeks an order under s 38 of the Judicial Review Act 1991 that the respondents comply with his request for a written statement of reasons for a decision of the first respondent as an officer of the second respondent – where the first respondent advised Corrective Services that the applicant, a prisoner, should not be permitted to have telephone access to the daughter of his former de facto partner while she was in departmental custody – where the respondents contend that the application should be dismissed because the decision was not a decision of an administrative character made under an enactment – where the applicant contends that he exercised parental responsibility for the child and should not have been refused contact with her – whether the applicant had a right to make telephone calls which could be affected by the decision of the first respondent

Acts Interpretation Act 1954 (Qld), ss 5A, 14A(1)
Child Protection Act 1999 (Qld), ss 11(1), 12, 13, 15, 20, 23, 87
Child Protection Bill 1998 (Qld)
Corrective Services Act 2006 (Qld), ss 50, 271
Corrective Services Regulation 2017 (Qld), s 18
Judicial Review Act 1991 (Qld), ss 4(a), 31, 32, 38
Status of Children Act 1978 (Qld)

Griffith University v Tang (2005) 221 CLR 99, applied
Palmer v The…

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.

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Details

Case: [2018] QSC 161
Decision Date: 20 July 2018

CaseChat Overview and Summary

The case of GAB v Kan involved an application by the applicant, a prisoner, seeking judicial review of a decision made by the first respondent, an officer of the second respondent, Corrective Services, to refuse him information about a departmental investigation into the risk of harm to the daughter of his former de facto partner. The applicant also sought a written statement of reasons for the decision under section 38 of the Judicial Review Act 1991. The primary legal issue was whether the decision in question was a decision of an administrative character made under an enactment and whether the applicant had or could be given any right in respect of the information sought. The respondents argued that the decision was not a reviewable administrative decision, while the applicant contended that he exercised parental responsibility for the child and should not have been refused contact with her.

The court examined whether the decision was an administrative decision made under an enactment, focusing on whether the decision to refuse information about the investigation was of an administrative character. The court considered whether the applicant had or could be given any right in respect of the information or whether he could be said to have or exercise parental responsibility under the Child Protection Act 1999. The court held that the decision was not a reviewable administrative decision because it did not involve the exercise of a public power or duty imposed by law, and thus was not subject to judicial review. The court also found that the applicant did not have a right to make telephone calls which could be affected by the decision of the first respondent.

As a result, the application for judicial review was dismissed. The court concluded that the decision in question did not fall within the scope of the Judicial Review Act 1991, and therefore the application could not succeed. The court did not find it necessary to address the issue of whether the applicant exercised parental responsibility for the child, as it was not a necessary element of the decision-making process. The applicant's application for a written statement of reasons for the decision was also dismissed as the decision itself was not reviewable.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	GAB v Kan & Anor [2018] QSC 161
PARTIES:	GAB (applicant) v JAMES KAN (first respondent) and DEPARTMENT OF COMMUNITIES CHILD SAFETY (second respondent)
FILE NO/S:	SC No 10010 of 2017
DIVISION:	Trial
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 July 2018
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2018
JUDGE:	Holmes CJ
ORDERS:	The application is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – DECISIONS UNDER INSTRUMENTS – where the applicant seeks an order under s 38 of the Judicial Review Act 1991 that the respondents comply with his request for a written statement of reasons for a decision of the first respondent as an officer of the second respondent – where the first respondent decided to refuse the applicant information about a departmental investigation into the risk of harm to the daughter of his former de-facto partner – where the respondents contend that the application should be dismissed because the decision was not a decision of an administrative character made under an enactment – where the applicant contends that he falls within the definition of someone ‘having or exercising parental responsibility’ under s 11(1) of the Child Protection Act 1999 – whether the applicant had or could be given any right in respect of the information – whether the applicant could be said to have or exercise parental responsibility under the Child Protection Act 1999 ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – DECISIONS UNDER INSTRUMENTS – where the applicant seeks an order under s 38 of the Judicial Review Act 1991 that the respondents comply with his request for a written statement of reasons for a decision of the first respondent as an officer of the second respondent – where the first respondent advised Corrective Services that the applicant, a prisoner, should not be permitted to have telephone access to the daughter of his former de facto partner while she was in departmental custody – where the respondents contend that the application should be dismissed because the decision was not a decision of an administrative character made under an enactment – where the applicant contends that he exercised parental responsibility for the child and should not have been refused contact with her – whether the applicant had a right to make telephone calls which could be affected by the decision of the first respondent Acts Interpretation Act 1954 (Qld), ss 5A, 14A(1) Child Protection Act 1999 (Qld), ss 11(1), 12, 13, 15, 20, 23, 87 Child Protection Bill 1998 (Qld) Corrective Services Act 2006 (Qld), ss 50, 271 Corrective Services Regulation 2017 (Qld), s 18 Judicial Review Act 1991 (Qld), ss 4(a), 31, 32, 38 Status of Children Act 1978 (Qld) Griffith University v Tang (2005) 221 CLR 99, applied Palmer v The…