Kennedy v Davies - [2005] QSC 343

SUPREME COURT OF QUEENSLAND

CITATION:

Kennedy v Davies & Anor [2005] QSC 343

PARTIES:

DUNCAN ALEXANDER ROBERT KENNEDY
(applicant)
v
THE HONOURABLE GEOFFREY DAVIES AO, COMMISIONER, QUEENSLAND PUBLIC HOSPITALS COMMISSION OF INQUIRY
(first respondent)
THE HONOURABLE THE ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND
(second respondent)

FILE NO/S:

SC No 718 of 2005

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

25 November 2005

DELIVERED AT:

Townsville

HEARING DATE:

22 November 2005

JUDGE:

Cullinane J

ORDER:

The application is dismissed1.

I give the parties leave to apply in writing on the issue of costs within seven days2.

CATCHWORDS:

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY - where the applicant sought to have the circumstances surrounding the death of his mother investigated by the Commission of Inquiry established under the the Commissions of Inquiry Order (No. 2) 2005 - where the Commissioner determined that this issue did not fall within his terms of reference - whether applicant entitled to be heard on the issue of whether the matters were within the terms of reference - where the applicant seeks judicial review of the decision of the Commissioner - whether there was a denial of natural justice

Commissions of Inquiry Act 1950 (Qld)
Judicial Review Act 1991 (Qld)

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited

Annetts v McCann (1990) 170 CLR 596, followed

Cornall v AB (A Solicitor) [1995] VR 372, cited

Dickson v Canada (Governor in Council) [1997] 3 FC 169, discussed

Ferguson v Cole [2002] FCA 1411, discussed

COUNCIL:

M O Plunkett for the applicant
R G Marsh for the first respondent
J Logan SC for the second respondent

SOLICITORS:

Ruddy Tomlins & Baxter (Townsville) for the applicant
Crown Law for the first and second respondents

This is an application for judicial review of a decision of the first respondent. The Attorney General intervened pursuant to s 51 of the Judicial Review Act 1991 (Qld) as amended. The first respondent was represented but in accordance with well settled principle, indicated that he abided the order of the Court.

The Attorney General conceded, or perhaps more correctly did not raise any issue, about the standing of the applicant.

In order to understand the application it is desirable to set out a summary of relevant events.

On 26 April 2005, pursuant to an Order in Council (Commissions of Inquiry Order (No. 1) 2005), Mr Morris QC was appointed “to make full and careful inquiry in an open and independent manner with respect to” a number of matters. These primarily concerned a medical practitioner, one Dr Patel and his employment and also matters concerning the clinical practice and procedures conducted by Dr Patel or other medical practitioners at the Bundaberg Base Hospital to which Dr Patel had been appointed. It was also to inquire into:

“The role and conduct of the Queensland Medical Board in relation to the assessment, registration and monitoring of overseas-trained medical practitioners, with particular…

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.

Continue reading Kennedy v Davies

Details

AGLC: Kennedy v Davies [2005] QSC 343
Case: [2005] QSC 343
Decision Date: 25 November 2005

CaseChat Overview and Summary

The applicant, Kennedy, sought judicial review of a decision by the Commissioner of Inquiry under the Commissions of Inquiry Order (No. 2) 2005 to decline to investigate the circumstances surrounding the death of the applicant's mother. The dispute centred around whether the Commissioner was correct in determining that the matter did not fall within his terms of reference and whether Kennedy was denied a fair opportunity to be heard on this issue.

The primary legal issue was whether the Commissioner's decision to decline jurisdiction constituted a denial of natural justice by not allowing Kennedy to be heard on whether the matters fell within the terms of reference. The court also had to consider the scope of the Commissioner's jurisdiction and whether the statutory framework provided Kennedy with an adequate opportunity to challenge the decision.

The court examined the statutory provisions and relevant case law, including Ainsworth v Criminal Justice Commission, Annetts v McCann, Cornall v AB, Dickson v Canada, and Ferguson v Cole. It was held that the Commissioner had not denied natural justice by declining to hear Kennedy on the jurisdictional issue, as the statutory framework provided a sufficient avenue for judicial review. The court found that the Commissioner's decision to decline jurisdiction was within his authority, and the statutory process for review was adequate. Therefore, the application for judicial review was dismissed.

The court dismissed Kennedy's application for judicial review and granted leave for the parties to apply in writing on the issue of costs within seven days.

Orders

Orders of the court

The application is dismissed1.

I give the parties leave to apply in writing on the issue of costs within seven days2.

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:	Kennedy v Davies & Anor [2005] QSC 343
PARTIES:	DUNCAN ALEXANDER ROBERT KENNEDY (applicant) v THE HONOURABLE GEOFFREY DAVIES AO, COMMISIONER, QUEENSLAND PUBLIC HOSPITALS COMMISSION OF INQUIRY (first respondent) THE HONOURABLE THE ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND (second respondent)
FILE NO/S:	SC No 718 of 2005
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	25 November 2005
DELIVERED AT:	Townsville
HEARING DATE:	22 November 2005
JUDGE:	Cullinane J
ORDER:	The application is dismissed1. I give the parties leave to apply in writing on the issue of costs within seven days2.
CATCHWORDS:	ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - GENERALLY - where the applicant sought to have the circumstances surrounding the death of his mother investigated by the Commission of Inquiry established under the the Commissions of Inquiry Order (No. 2) 2005 - where the Commissioner determined that this issue did not fall within his terms of reference - whether applicant entitled to be heard on the issue of whether the matters were within the terms of reference - where the applicant seeks judicial review of the decision of the Commissioner - whether there was a denial of natural justice Commissions of Inquiry Act 1950 (Qld) Judicial Review Act 1991 (Qld) Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited Annetts v McCann (1990) 170 CLR 596, followed Cornall v AB (A Solicitor) [1995] VR 372, cited Dickson v Canada (Governor in Council) [1997] 3 FC 169, discussed Ferguson v Cole [2002] FCA 1411, discussed
COUNCIL:	M O Plunkett for the applicant R G Marsh for the first respondent J Logan SC for the second respondent
SOLICITORS:	Ruddy Tomlins & Baxter (Townsville) for the applicant Crown Law for the first and second respondents