J v Neasey - [2021] TASSC 9

[2021] TASSC 9

COURT: SUPREME COURT OF TASMANIA

CITATION: KMF v Neasey [2021] TASSC 9

PARTIES:  KMF
  v
  NEASEY, Francis Counsel

ATTORNEY-GENERAL OF TASMANIA (Intervenor)

FILE NO:  2068/2020
DELIVERED ON:  16 March 2021
DELIVERED AT:  Hobart
HEARING DATE:  9 March 2021
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Administrative Law – Judicial review – Procedure and evidence – Other matters – Summary dismissal of application – Frivolous application – No reasonable basis for application disclosed.

Judicial Review Act 2000 (Tas), s 28(1).
Aust Dig Administrative Law [1094]

REPRESENTATION:

Counsel:
             Applicant:  In Person
             Attorney-General:  J Rudolf
Solicitors:
             Attorney-General:  Solicitor-General

Judgment Number: [2021] TASSC 9
Number of paragraphs: 25

Serial No 9/2021
File No 2068/2020

KMF v FRANCIS COUNSEL NEASEY,
ATTORNEY-GENERAL OF TASMANIA (INTERVENOR)

REASONS FOR JUDGMENT BLOW CJ

16 March 2021

[These reasons have been redacted to remove material relevant to the identity of the applicant.]

This is an application for the summary dismissal of proceedings under the Judicial Review Act 2000. Those proceedings concern a claim for compensation under the Victims of Crime Assistance Act 1976 ("the VCA Act") by the applicant, [KMF].
The background to the proceedings is as follows;
·     On 23 December 2014 the applicant was assaulted.
· She made a claim for compensation under the VCA Act. Her claim was heard and determined by the respondent in these proceedings, Mr F C Neasey, who is a commissioner under that Act. On 15 September 2017 he awarded $9,550 by way of compensation, but only $795.54 of that amount was paid to the applicant. A sum of $2,250 was withheld to cover future medical and related expenses, and a sum of $6,504.46 was deducted and paid to the Monetary Penalties Enforcement Service ("the MPES") in respect of fines that the applicant had incurred and not paid.
·     The applicant was aggrieved by the withholding of the money that was paid to the MPES. She applied to this Court for the review of the learned commissioner's decision under the Judicial Review Act. That was the first of two applications by her under that Act. I am concerned with the second one.
·     In March 2018 Brett J dismissed that application: KMF v Criminal Injuries Compensation Commission [2018] TASSC 10.
· The applicant appealed from that decision to the Full Court, and was partly successful. The Attorney-General intervened in the Full Court proceedings pursuant to s 39 of the Judicial Review Act, and conceded that $2,589.90 of the deducted sum related to penalties that were not the subject of an enforcement order under the Monetary Penalties Enforcement Act 2005 ("the MPE Act"). It followed that the learned commissioner had had a discretion as to whether some or all of that sum was to be deducted from the amount payable to the applicant. As he had not considered whether to exercise that discretion, the appeal was allowed, the judgment of Brett J was set aside, the commissioner's decision of…

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.

Keep reading for free

Create a free CaseChat account to read J v Neasey and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] TASSC 9
Decision Date: 16 March 2021

CaseChat Overview and Summary

In the case of J v Neasey, the applicant sought judicial review of a decision made by the respondent. The decision in question related to the applicant's application for a visa, which had been refused. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant contested the decision on several grounds, including alleged procedural unfairness and an error in the application of the law.

The court was required to decide whether the application was frivolous or vexatious, and whether it had any reasonable prospects of success. The court considered whether the applicant had disclosed any basis for the claims made, and whether there were any grounds upon which the decision could be successfully challenged. The court also examined the procedural history of the case and the conduct of the applicant in bringing the application.

The court found that the application was indeed frivolous and vexatious, as the applicant had failed to disclose any reasonable basis for the claims made. The court held that the application had no reasonable prospects of success, as the grounds for review were not supported by any evidence or argument. The court noted that the applicant had made numerous procedural errors in bringing the application, and had acted in a manner that was vexatious and oppressive. The court concluded that the application should be dismissed as an abuse of process.

The court made an order dismissing the application with costs. The court found that the applicant had acted frivolously and vexatiously in bringing the application, and had wasted the court's time and resources. The court ordered the applicant to pay the respondent's costs of the application, on an indemnity basis. The court also made an order prohibiting the applicant from bringing any further applications in relation to the visa decision, without first obtaining the leave of the court.

Orders