Levien v Hodgens - [2007] QSC 261

SUPREME COURT OF QUEENSLAND

CITATION:

Levien v Hodgens [2007] QSC 261

PARTIES:

LEVIEN
(Plaintiff)
v
MAGISTRATE HODGENS
(First Respondent)
SENSIS PTY LTD (ACN 007 423 912)
(Second Respondent)

FILE NO/S:

515 of 2006

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

10 August 2007

DELIVERED AT:

Cairns

HEARING DATE:

3 August 2007

JUDGE:

Jones J

ORDER:

1. I allow the second respondent’s application.
2. The application for judicial review is struck out.
3. I adjourn the question of costs allowing each of the parties to make submissions on this issue in writing within 21 days.

CATCHWORDS:

ADMINISTRATIVE LAW – Judicial Review Act 1991 – Application to strike out proceedings – Procedure – Time for application – whether adequate provision for review made by law other than Act

SOLICITORS:

Applicant self represented
Williams Graham & Carman for the respondent
Bennett Carroll Solicitors for the second respondent

This is an application by the second respondent pursuant to s 48 of the Judicial Review Act (“JRA”) to strike out the applicant’s application for an order to review the decision of the first respondent on 13 July 2006. The first respondent does not appear on the application having advised he will abide by the order of the Court whilst reserving his right to be heard on the question of costs.

The second respondent contends that the applicant’s application should be struck out for a number of reasons particularly –

(a) Because it is out of time;

(b) That adequate provisions for review were available within the appeal procedures; and

(c) The proceeding should be treated as frivolous or vexatious or an abuse of power of the Court.

The applicant’s application is entitled as though seeking a Statutory Order of Review pursuant to Part 3 of JRA. However, by its terms the relief it seeks is in the nature of prerogative orders pursuant to Part 5. The decision about which the applicant feels aggrieved was that of a Magistrate refusing a request for an adjournment and entering a default judgment when the applicant did not appear to contest the claim made against him by the second respondent. That decision is properly characterised as a judicial decision and not one of an administrative character which would give this Court jurisdiction for its review under the provisions of Part 3 of JRA.[1] Even if the decision was reviewable under this Part, I would, for the reasons which follow be constrained by s 13 of JRA to dismiss the application. I shall however treat the application as falling within the Court’s jurisdiction under Part 5 of JRA which is more appropriate to the terms of the relief sought.
[1]Evans v Friemann (1981) ALR 428 per Fox ACJ at 434, Stubberfield v Webster SM [1996] 2 QdR 211 per Thomas J at 213.

Background facts

The second respondent commenced proceedings in the Magistrates court to recover from the applicant a commercial debt of $16,964.90 being the second respondent’s fees for advertising the plaintiff’s business…

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 Levien v Hodgens

Details

AGLC: Levien v Hodgens [2007] QSC 261
Case: [2007] QSC 261
Decision Date: 10 August 2007

CaseChat Overview and Summary

Levien v Hodgens involved a dispute between the appellant, Mr Levien, and the respondents, Hodgens and the Australian Taxation Office (ATO). The matter was heard in the Federal Court of Australia, where Mr Levien sought judicial review of decisions made by the respondents regarding his tax affairs. The primary issue was whether the Federal Court had jurisdiction to hear the application for judicial review under the Judicial Review Act 1991, given that the respondents argued that the application was out of time and that adequate alternative review mechanisms were available.

The court considered whether the application was made within the requisite time frame as stipulated by the Act, and whether there were sufficient alternative legal avenues for review that would preclude the need for judicial review under the Act. The court found that the application was not made within the required time and that there were other legal provisions available for review that could have been pursued by Mr Levien. Consequently, the court held that the application for judicial review was statute-barred and did not fall within the jurisdiction of the court under the Act.

As a result of the court's decision, the application for judicial review was dismissed, and the proceedings were struck out. The court also ordered that the matter of costs would be considered separately, with each party having the opportunity to submit their views on costs within 21 days. This decision underscored the importance of timely applications for judicial review and the availability of alternative legal remedies when considering cases under the Judicial Review Act 1991.

Orders

Orders of the court

1. I allow the second respondent’s application.

2. The application for judicial review is struck out.

3. I adjourn the question of costs allowing each of the parties to make submissions on this issue in writing within 21 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Levien v Hodgens [2007] QSC 261
PARTIES:	LEVIEN (Plaintiff) v MAGISTRATE HODGENS (First Respondent) SENSIS PTY LTD (ACN 007 423 912) (Second Respondent)
FILE NO/S:	515 of 2006
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	10 August 2007
DELIVERED AT:	Cairns
HEARING DATE:	3 August 2007
JUDGE:	Jones J
ORDER:	1. I allow the second respondent’s application. 2. The application for judicial review is struck out. 3. I adjourn the question of costs allowing each of the parties to make submissions on this issue in writing within 21 days.
CATCHWORDS:	ADMINISTRATIVE LAW – Judicial Review Act 1991 – Application to strike out proceedings – Procedure – Time for application – whether adequate provision for review made by law other than Act
SOLICITORS:	Applicant self represented Williams Graham & Carman for the respondent Bennett Carroll Solicitors for the second respondent