Jessop v Judge Forno QC DCJ

[2000] QCA 237

[2000] QCA 237
COURT OF APPEAL

PINCUS JA
WHITE J
DUTNEY J

Appeal No 8997 of 1999

MICHAEL JESSOP  Appellant (Applicant)

and

JUDGE FORNO QC DCJ     First Respondent (First Respondent)

and

WESTPAC BANKING CORPORATION
  Second Respondent (Second Respondent)

and

PRENTICE PARBERRY BARILLA
  Third Respondent (Third Respondent)

BRISBANE

..DATE 15/06/2000

JUDGMENT

PINCUS JA:  There are two applications before the Court.  Before explaining what they relate to, I shall mention that the papers disclose that on 3 September 1999 a Judge of the District Court, Judge Forno QC, made orders in relation to proceedings in that Court.  One of the orders related to the time for filing of a defence and the other one had to do with the costs of the application before his Honour.  Subsequently in the same Court, on 27 September 1999, Judge McGill QC made an order on an application for summary judgment.  It is necessary to keep in mind that those two orders were made, when looking at later proceedings.

The two applications, the nature of which I will explain, have to do with an order made by his Honour, Justice Moynihan in this Court on 1 October 1999.  His Honour's reasons disclose that he regarded the application before him as one to judicially review a decision of a District Court Judge ordering recovery of possession of land.  As I have mentioned, there was such an order made and that was made by Judge McGill.

The application before his Honour Justice Moynihan in fact related to the order of Judge  Forno QC made on 3 September which I have already mentioned.  It seems likely that there was some confusion in the discussion before Justice Moynihan.  However that may be, it is now clear from what
Mr Jessop has been good enough to tell us that not only did his application relate to Judge Forno QC's order, but it did so intentionally and that was the order he had in mind attacking.

The reasons of Justice Moynihan in relation to the application to judicially review the order of the District Court go on to say that the application before him faced a difficulty in the context of the Judicial Review Act of the State of Queensland. His Honour said that the application before him had to be dismissed on the basis that there was an adequate appeal remedy in the District Court.

His Honour, in saying that, was referring to section 12(b) of the Judicial Review Act 1991 which, omitting parts which are not presently relevant, empowered the Court to dismiss an application of the kind which Mr Jessop was making, on the basis that adequate provision was made by a law other than the Judicial Review Act under which the applicant is entitled to seek a review of the matter by the Court or another Court. The order which Justice Moynihan made in the end was that the application be dismissed and he gave a number of reasons for that, one of which I have mentioned.

The discussion today has clarified, I think, what it is that Mr Jessop wants to do.  He wants to challenge the orders made by Judge Forno QC on two principal grounds.  One is that the order contained a wrong order with respect to costs and the other is that the District Court had no jurisdiction in the matter, for reasons which Mr Jessop explained.

The applications which brought about the proceedings today had their origin in an appeal which was filed by the applicant in this Court and the respondents to that appeal, who are represented by Mr Sullivan today, made application on 3 May 2000 that the appeal be dismissed in that no leave had been given and asked for an order for costs.

Mr Jessop responded to that by an application made on
1 June this year seeking an order that the application of
Mr Sullivan's side be struck out, and further orders.  So that there are really three proceedings in this Court; there is the initial appeal made by Mr Jessop, there is the application by the respondents to that appeal saying that the appeal should not be allowed to proceed because there is no leave given, and then there is Mr Jessop's application to strike out the respondents' application.

The reference to a necessity for leave has to do with the same statute which I have already mentioned, the Judicial Review Act 1991 and the relevant provision, which is section 15 subsection 4 requires that there be leave. It reads:

"An appeal may be brought from an order of the Court under this division only with the leave of the Court of Appeal."

So that an obstacle in Mr Jessop's path is that the appeal can only be brought by leave.  To focus upon the arguments which Mr Jessop advanced, he says the order for costs was wrongly made but he is more concerned, as it appears to me, with the jurisdictional question.  The argument which
Mr Jessop advances is that the loan which underlay the proceedings in the District Court, which were proceedings for possession, was an amount of $300,000, that being a sum in excess of the District Court's jurisdiction, as indeed it is. The proceedings were brought under section 68 of the District Court Act 1967 which gives the District Court, among other things, power to hear the types of actions which are listed in it. One of them is an action under 68(1)(ix) and that is an action to recover possession of land where the value of the land does not exceed the monetary limit.

The matter, as it appears to me, therefore raises doubts as to the validity of Mr Jessop's argument in the sense that
Mr Jessop says, in effect, that whatever the value of the land, if the amount due exceeds the District Court's jurisdiction limit, it is necessary to bring proceedings in the Supreme Court, whereas the provision which I have mentioned which allows recovery of possession appears to say the contrary.

The essential points in the case, as it comes before us, appear to me to be these.  The first is that there was some misunderstanding in the proceedings before Justice Moynihan as to what it was that was in issue.  The papers said it was the order made on 3 September by Judge Forno QC and
Mr Jessop confirms that that was his intention, whereas some mention must have been made, as it appears to me, before Justice Moynihan suggesting that the point was the order that Judge McGill made, somewhat later.

The second essential point in the case is that it is true, as it appears to me, that leave is required for the appeal and leave has not been obtained. The third point is that it appears to be correct that as Justice Moynihan says, the exercise of jurisdiction under the Judicial Review Act is restrained by the consideration of availability of an alternative remedy. Mr Jessop does not advance any consideration against the proposition that adequate provision was made by a law other than the Judicial Review Act under which Judge Forno's orders could have been attacked.

In fact, Mr Jessop does not advance an argument of the kind I mentioned but he does say that what should have happened was that Judge Forno should not have dealt with the matter at all but should have transferred it to the Federal Court.  It does not appear to me that his Honour did have power to do that.

Looking at the matter more broadly, Mr Jessop, who has presented his argument today, if I may say so, helpfully and courteously, is dealing with what is still a very complicated legal system with State and Federal Courts with overlapping jurisdictions, with a number of State Courts with different jurisdictions.  It is understandable that a lay person like Mr Jessop can find the system complex to deal with, but to reiterate the points which present difficulties for him, it does seem clear that an appeal could have been brought against Judge Forno's order which, it appears, was resisted by Mr Jessop before Judge Forno; and it does seem clear that that is a justifiable reason for dismissing an application for review, and thirdly, it does seem clear that an appeal may be brought only with the leave of the Court of Appeal.

The matter which influences me most in coming to my conclusion is that it seems undesirable that the Judicial Review Act should be used, so to speak, routinely, to challenge orders of the District Court against which there could be a simple appeal. There are advantages in the simplicity of the appeal and I think those advantages are such as to entitle the Court to give full effect to the policy of section 12.

Therefore, although I do so with some misgivings and some regret, because of the factors I have mentioned, namely the complexity of the system and the fact that Mr Jessop has made honest efforts to cope with it, it appears to me that the proper order of this Court in relation to the applications is such as to uphold the order which
Justice Moynihan made.  That is, what I would do would be to allow the application which was made by the respondents to the appeal, that is, that the appeal be dismissed, and to allow it with costs and to dismiss the application made by Mr Jessop on 1 June 2000 and the second order without costs.  Those are the orders which I would make.

WHITE J:  I agree with the learned presiding Judge, with the orders that he proposes for the reason that he has given.

DUTNEY J:  I also agree.

PINCUS JA:  The orders of the Court will therefore be on the application made by Westpac and Barilla that the appeal be dismissed with costs of Westpac and Barilla to be assessed and on the application made by Mr Jessop filed on
1 June 2000, that that application be dismissed but with no order as to costs.  The Court will now adjourn.

MR SULLIVAN:  Your Honour, could I just ask you to clarify that those costs also include the costs of the respondents which they have incurred in the appeal to date, not just the application.

PINCUS JA:  No, it will be just the cost of the application.

MR SULLIVAN:  Thank you, your Honour.

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