MH v HJ

Case [2023] QSC 176

SUPREME COURT OF QUEENSLAND

CITATION:

MH v HJ [2023] QSC 176

PARTIES:

MH

(applicant)

v
HJ
(first respondent)
THE KING
(second respondent)
ATTORNEY-GENERAL FOR THE STATE OF
QUEENSLAND

(intervenor)

FILE NO:

BS No 4954 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

18 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2023

JUDGE:

Cooper J

ORDERS:

1.   An order in the nature of certiorari is made quashing the direction made by the District Court on 14 April 2023.

2.   The matter is remitted to the District Court for further consideration.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – EXCLUSIONS: PRIVILEGES – SEXUAL ASSAULT COMMUNICATIONS PRIVILEGE – where the first respondent has been charged on indictment in the District Court – where the applicant is the complainant in respect of the alleged offending – where the first respondent brought an application in the District Court for leave to access protected counselling communications concerning the applicant – where directions were made to allow the legal representatives for the first respondent and second respondent to inspect the protected counselling communications for the purpose of making submissions on whether the protected counselling communications could be used in the criminal proceeding – where the applicant seeks orders in the nature of certiorari to set aside the direction on the basis of jurisdictional error – whether the learned District Court judge had power to make the direction – whether the direction was affected by jurisdictional error – whether an order in the nature of certiorari should be made quashing the direction

Criminal Code Act 1899 (Qld), s 590AA, s 668A
District Court Act 1967 (Qld), s 28, s 29
Evidence Act 1977 (Qld), s 14A, s 14B, s 14E, s 14F, s 14G, s 14H, s 14L, s 14M, s 14N
Human Rights Act 2019 (Qld)
Judicial Review Act 1991 (Qld), s 12, s 13, s 41, s 48
Victims of Crime Assistance and Other Legislation Amendment Act 2017 (Qld)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, applied
Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, cited
Australia Meat Holdings Pty Ltd v Douglas [2005] 2 Qd R 457; [2005] QCA 437, cited
Australian Building and Construction Commissioner v Constructions, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3, cited
Commissioner of Police v Tanos (1958) 98 CLR 383; [1958] HCA 6, cited
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, cited
Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45, cited
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4, cited
Higgins v Comans, Acting Magistrate & DPP (Qld) [2005] QCA 234; [2005] QCA 234, cited
Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44; [2005] HCA 50, cited
John Fairfax Publications Pty…

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Details
AGLC
MH v HJ [2023] QSC 176
Case
[2023] QSC 176
Decision Date

CaseChat Overview and Summary

The case of MH v HJ involved a legal dispute between the applicant, MH, and the first and second respondents, HJ and the Department of Communities, respectively. The applicant, MH, who is the complainant in a sexual assault charge against the first respondent, sought orders to set aside a direction made by the District Court to allow the first respondent's legal representatives to inspect protected counselling communications (PCC) relating to the applicant. The legal issues that arose in this case were whether the District Court judge had the power to make the direction to inspect the PCC material and whether the direction was affected by jurisdictional error.

The court considered the relevant provisions of the Criminal Code Act 1899 (Qld) and held that the District Court judge did not have the power to grant leave for the inspection of PCC material for the purpose of assisting the court to determine the matters raised by s 14H of the Act. The court concluded that if such an inspection is to occur, it must be addressed by the legislature. The court also noted that the Human Rights Act 2019 (Qld) did not apply to this case, and therefore, could not have altered the construction of the SACP provisions.

The court found that the District Court judge had jurisdiction to make an order in the nature of certiorari, which has the same effect as a prerogative writ of certiorari. The court quashed the direction made by the District Court on 14 April 2023 and remitted the matter to the District Court for further consideration.

In conclusion, the court held that the District Court judge did not have the power to grant leave for the inspection of PCC material, and the direction made by the District Court was affected by jurisdictional error. The court quashed the direction and remitted the matter to the District Court for further consideration, leaving the issue of legislative intervention to be addressed by the legislature.

Orders

Orders of the court

1. An order in the nature of certiorari is made quashing the direction made by the District Court on 14 April 2023.

2. The matter is remitted to the District Court for further consideration.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The first, s 14M, sets out the procedure for the court to decide if a document or evidence is a protected counselling communication. It provides:“14M Deciding whether document or evidence is protected counselling communication(1)This section applies if a question arises under this division in relation to a proceeding to which subdivision 2 or 3 applies.(2)The court may consider a document or evidence to decide whether it is a protected counselling communication.(3)While the court is considering the document or evidence, the court must exclude from the room in which it is sitting—(a) anyone who is not an essential person; and(b) an essential person, if—(i)the counselled person to whom the document or evidence relates asks that the essential person be excluded; and(ii)the court considers excluding the essential person would serve a proper interest of the counselled person.(4)The court may make any other order it thinks fit to facilitate its consideration of the document or evidence.(5)This section applies despite sections 14D and 14F.” This provision sets out a procedure for the court to follow in determining whether material comes within the scope of the privilege where the claim for privilege is challenged. It expressly recognises that the qualified privilege created by s 14F does not prevent the court from considering the document or evidence in determining that issue. Further, the court is empowered to make any other order it thinks fit to facilitate its consideration of the document or evidence. The second provision referred to by the learned District Court judge is s 14N. It provides that the court may make “any order it considers appropriate to limit the extent of the harm likely to be caused to the counselled person by the production of a document, or the adducing of evidence, that is a protected counselling communication relating to the person”.The course of the application for leave to inspect the PCC material On 5 August 2022, the first respondent brought a pre-trial application pursuant to s 590AA of the Criminal Code Act 1899 (Qld) (Criminal Code). That application sought orders that, among other things:(a)pursuant to s 14M of the Act, the chief executive of two relevant government departments produce to the registry of the District Court at Brisbane any records relating to or concerning the applicant, without any redactions pursuant to sexual assault counselling privilege;(b)pursuant to ss 14F and 14G of the Act, the first respondent be given leave to:(i) produce to the court, adduce evidence of or otherwise use a protected counselling communication that may be included in the departmental records; and(ii) otherwise disclose, inspect or copy such protected counselling communication that may be included in the departmental records. On 13 September 2022, orders were made by a different District Court judge, by consent, which among other things:(a)granted leave, purportedly pursuant to s 14M of the Act, to the legal representatives for the first respondent to issue subpoenas for the departmental records;(b)granted leave to the applicant’s legal representatives to inspect, copy and adduce the departmental records produced to the District Court;(c)restrained the parties, apart from the applicant’s legal representatives, from inspecting, copying, adducing, obtaining or otherwise using any of the departmental records produced to the District Court until further order.

Decision

Reasons for decision

I am unable to accept that submission. The JR Act expressly provides that the court may, and in certain cases must, dismiss an application for a prerogative order because provision is made by another law under which the applicant for review is entitled to seek a review of the matter.[73] Although those provisions are expressed not to limit the power in s 48(1)(a) to dismiss an application for review if the court considers it would be inappropriate to grant the application, they indicate that where consideration is to be given to alternative means of correcting the error the focus should be upon the applicant’s entitlement to pursue other rights of review. In the present case, other than the present review application, there is no step which the applicant may take to challenge the making of the impugned direction. I do not consider that the second respondent’s ability to act under s 668A makes it inappropriate to grant relief to the applicant in the circumstances of this case. [73]JR Act, ss 12 and 13.Conclusion The orders I will make are:1.An order in the nature of certiorari is made quashing the direction made by the District Court on 14 April 2023.2.The matter is remitted to the District Court for further consideration.

Ratio Decidendi

Legal Principle Established

The result is that, consistently with the suggestion made by Applegarth J in TRKJ and with the statements of general principle derived from the authorities discussed in [44] to [48] above, the circumstances in which legal representatives for a party to the criminal proceeding may be granted leave to access PCC material for the purpose of assisting the court to determine the matters raised by s 14H is something which, if it is to occur, must be addressed by the legislature. The first respondent submitted that it was regrettable that there wasn’t a greater degree of legislative intervention to improve the practical operation of the SACP provisions after the decision in TRKJ. That submission may be accepted, however it does not alter the limits on the power of the court to permit inspection of PCC material.Consideration of the Human Rights Act 2019 (Qld) The learned District Court judge considered the potential application of the Human Rights Act 2019 (Qld) (HR Act) but accepted the parties’ submission that its operation was excluded because the criminal proceeding in which the application for leave was brought commenced before the commencement of the HR Act.[61][61]HJJ, [51] referring to HR Act, s 108(2)(a). In any event, I accept the submission on behalf of the Attorney-General that, for reasons given by Applegarth J in TRKJ,[62] if the HR Act had applied then, recognising that the SACP provisions balance competing human rights, a requirement that those provisions be interpreted in a way that is compatible with human rights would not have altered the construction identified above. None of the other parties made submissions on the application of the HR Act.[62]TRKJ, 514-7 [163]–[179].This court’s jurisdiction to make an order in the nature of certiorari By s 41 of the Judicial Review Act 1991 (Qld) (JR Act) this court may not issue a prerogative writ of certiorari but may make an order in the nature of that writ that has the same effect. Prior to the enactment of the JR Act, this court could issue a writ of certiorari directed to the District Court in the exercise of its inherent jurisdiction. It also has power under s 29 of the District Court Act 1967 (Qld) (DC Act) to grant such relief where, on the application of an interested person, the court thinks it desirable to do so. Although s 28 of the DC Act provides that a judgment of a District Court judge shall not be removed by writ of certiorari into another court save and except in the manner and according to the provisions of the DC Act, such provision does not prevent this court from making an order in the nature of certiorari to quash an order of the District Court if the ground of judicial review for such an order amounts to jurisdictional error.[63][63]Oaky Creek Coal Pty Ltd v Central Highlands Regional Council [2018] 2 Qd R 149 (Oaky Creek), 162 [48]–[51] citing Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 (Kirk). The content of this court’s inherent jurisdiction to make an order in the nature of certiorari corresponds with the court’s previous jurisdiction to order the issue of a prerogative writ of certiorari. Where available, certiorari is a process by which a superior court supervises the acts of an inferior court. It enables the quashing of the impugned order on a number of grounds including, for present purposes, jurisdictional error.[64][64]Craig v South Australia (1995) 184 CLR 163 (Craig), 174–5; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 462–3 [253]–[254].