Jessop v Forno

[2001] HCATrans 228

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B53 of 2000

B e t w e e n -

MICHAEL JESSOP

Applicant

and

JUDGE FORNO QC DCJ

First Respondent

WESTPAC BANKING CORPORATION

Second Respondent

PRENTICE PARBERY BARILLA

Third Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 27 JUNE, 2001, AT 2.40 PM

Copyright in the High Court of Australia

_____________________

MR M. JESSOP appeared in person.

MR T.P. SULLIVAN:   If it please the Court, for the second and third respondents.  (instructed by Corrs Chambers Westgarth)

GUMMOW J:   There seems to be no appearance for the first respondent.

MR SULLIVAN:   No, that is Judge Forno.  There will not be an appearance for him.

GUMMOW J:   Yes, very well.  Yes, Mr Jessop.

MR JESSOP:   I have got copies of my argument.  I would think it would be faster if the Court – with your permission, if I could hand it up for you to read it instead of me going through it.

GUMMOW J:   Yes.  We have already got a statement of argument.

MR JESSOP:   Yes, but this is an additional.

GUMMOW J:   This is different?

MR JESSOP:   Yes.

GUMMOW J:   Additional, is it?

MR JESSOP:   Yes.

GUMMOW J:   All right.

MR SULLIVAN:   Your Honour, could I ask that I be given a copy as well?

GUMMOW J:   Yes.  Thank you.  Now, were these arguments, Mr Jessop, arguments that you had put to the Queensland Court of Appeal?

MR JESSOP:   Not these ones, your Honour, no.

GUMMOW J:   Well, yes, go on.

MR JESSOP:   I came up with this since then, after I have sort of failed in every court to even be heard, your Honour.

GUMMOW J:   Yes, proceed.

MR JESSOP:   Right.  Well, the main thing I ‑ ‑ ‑

GUMMOW J:   It is highly unusual for us to grant special leave upon grounds that have not been argued in the courts below.

MR JESSOP:   Some of these have, your Honour.

GUMMOW J:   But you continue with what oral submissions you wish to make to us.

MR JESSOP:   No.  I will stop at my oral submissions and let the respondents answer and then I will speak again, if I may.

GUMMOW J:   Very well.

MR SULLIVAN:   Your Honour, just a number of points.  The first point is that this was a case where the appellate court dismissed it properly because leave had never been sought, nor obtained.  Under section 15(4) of the Judicial Review Act that was a necessary precondition.  So on that basis the appellate court acted entirely appropriately in the dismissal and that is an entire answer to special leave.  But, secondly, the case before Justice Forno which involved the time for filing of a defence and also making of costs order involved the matter which was within the jurisdiction of the District Court to deal with.

The action brought by plaintiff/respondent in that case was recovery or possession of a piece of land and there was jurisdiction under section 68(1)(xi), as referred to by Justice Pincus in his reasons, and, your Honour, that there is jurisdiction seems to be conceded by the appellant at page 26, lines 1 to 55 in that respect.  So the court was seized of that jurisdiction.  Instead of the appellant seeking to apply appellate process available under section 118(3) of the District Court, they sought to judicially review the matter.

GUMMOW J:   Yes.

MR SULLIVAN:   Your Honour, both under section 12 and section 13 of the Judicial Review Act, section 12 gives a discretion to the court to dismiss the matter, section 13 is mandatory, and his Honour Mr Justice Moynihan at first instance acted quite appropriately in exercising his discretion over section 12 because there was another adequate avenue of review which could have been pursued.  Your Honours, I will not necessarily bore you with the decisions, but I have provided the first decision of Mr Justice Thomas in Stubberfield, and that was a case really on all fours with this case and his Honour at the conclusion of that judgment at page 217 at lines 5 to 17 makes the policy reason why the actions of Mr Justice Moynihan were appropriate and those are:

It is therefore important that it be clearly understood that this remedy is not to be regarded as a substitute for the appellate system within the ordinary judicial process.

The Court of Appeal agreed with his Honour Justice Moynihan in that respect.  Unless I can assist your Honours in other respect, those are the submissions on behalf of the second and third respondents.

GUMMOW J:   Very well.  Yes, Mr Jessop.

MR JESSOP:   I think the main thing – my main problem I have with the whole of the court system in Queensland is that the judicial review does need reviewing so it is actually more practical for citizens to approach it and the argument that I have handed up now is – which brings most of that into light, is something that does need to be addressed by this Court.

GUMMOW J:   Thank you.

There is no reason to doubt the correctness of the decision of the Queensland Court of Appeal.  Further, there has been no further sustainable ground advanced today that has any chance of success on any appeal to this Court.  Accordingly, the application for special leave is refused with costs.

AT 2.55 PM THE MATTER WAS CONCLUDED