Mje v Strofield (Magistrate) - [2021] QSC 126

SUPREME COURT OF QUEENSLAND

CITATION:

MJE v Strofield (Magistrate) & another [2021] QSC 126

PARTIES:
MJE
(applicant)
v
MAGISTRATE COLIN STROFIELD
(first respondent)
COMMISSIONER OF THE QUEENSLAND POLICE SERVICE

(second respondent)

FILE NO/S:

BS No 12264 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 June 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2021

JUDGE:

Martin J

ORDER:
1. The applicant’s applications are dismissed.

2. The applicant pay the second respondent’s costs of the application.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL FUNCTIONS – where the applicant seeks a statement of reasons with respect to decisions of the first respondent – where the applicant seeks the review of decisions of the first respondent and of decisions made on appeal from decisions of the first respondent – where the decisions were not decisions of an administrative character – whether the applications should be dismissed

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISION TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – GENERALLY – where the applicant seeks orders to review some actions by members of the Queensland Police Service – where the applicant seeks orders for statement of reasons for numerous decisions made by members of the Queensland Police Service with respect to the conduct of investigations and of court proceedings – where the decisions of the second respondent are not susceptible to a statutory order of review – where the decisions of the second respondent are not susceptible to a request for a statement of reasons – whether the application should be dismissed

Crimes (Torture) Act 1988
Domestic and Family Violence Protection Act 2012, s 98
Human Rights Act 2019

Judicial Review Act 1991, s 4, s 31, s 32, s 38, s 39, s 48, sch 2 cl 1, sch 2 cl 2

Hinchcliffe v Commissioner of Police of the Australian Federal Police (2001) 118 FCR 308
LBU v Queensland Police Service and Anor [2020] QDC 279
Martin v Nadler [2018] WASC 138
Maxwell v The Queen (1996) 184 CLR 501

SRV v Commissioner of the Queensland Police Service and DTL [2020] QDC 208

COUNSEL:
Applicant appeared for himself
No appearance for the first respondent

M O’Brien for the second respondent

SOLICITORS:
No appearance for the first respondent

Queensland Police Service Legal Division for the second respondent

The applicant (MJE) seeks a number of orders for review of various decisions and that each of the respondents provide statements of reasons pursuant to the Judicial Review Act 1991 (“the JR Act”). The first respondent (Strofield M) has been given leave to withdraw. The second respondent (the Commissioner) seeks an order that the application be dismissed.
MJE has been the subject of orders made under the Domestic and Family Violence Protection Act 2012 (“the DV Act”). He seeks to review decisions of Strofield M and other judicial officers, and he seeks orders that statements of reasons be given by…

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 Mje v Strofield (Magistrate)

Details

AGLC: MJE v Strofield (Magistrate) [2021] QSC 126
Case: [2021] QSC 126
Decision Date: 3 June 2021

CaseChat Overview and Summary

The matter before the court was an application by MJE for statements of reasons in relation to decisions made by Strofield M, a magistrate, and for the review of those decisions and decisions made on appeal by the District Court. The second respondent was the Commissioner of the Queensland Police Service. The court had to determine whether the application should be dismissed because the decisions in question were not decisions of an administrative character and thus not subject to judicial review. The application against Strofield M sought a statement of reasons in relation to decisions made by him, which the applicant believed were decisions of an administrative character. The court considered that the decisions made by Strofield M were of a judicial character, not administrative, and therefore not subject to judicial review or the requirement for reasons under the JR Act. Additionally, the decisions made by the District Court on appeal were also judicial decisions, not administrative, and thus not subject to review under the JR Act. The court found that the application should be dismissed as there was no reasonable basis for it and it was inappropriate for the application to continue. The court also noted that the application did not properly seek reasons under s 38 of the JR Act, which would allow for an order to compel the provision of reasons if the requester was entitled to make the request.

The court concluded that the application was an abuse of process and dismissed it in accordance with s 48 of the JR Act. The court ordered that MJE pay the costs of the second respondent. The reasoning of the court was based on the nature of the decisions in question, which were found to be judicial rather than administrative, and thus not subject to judicial review or the requirement for reasons under the JR Act. The court found that there was no reasonable basis for the application and that it was inappropriate for the application to continue.

Orders

Orders of the court

1. The applicant’s applications are dismissed.

2. The applicant pay the second respondent’s costs of the application.

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

Of overriding importance in this application is s 4 of the JR Act which determines the extent of the powers under the JR Act by reason of the JR Act applying only to decisions of an administrative character:“4 Meaning of decision to which this Act appliesIn this Act—Decision to which this Act applies means—(a)a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion); or(b)a decision of an administrative character made, or proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part)—(i) out of amounts appropriated by Parliament; or(ii) from a tax, charge, fee or levy authorised by or under an enactment.” Section 48(1) of the JR Act provides: “48 Power of the court to stay or dismiss applications in certain circumstances(1)The court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application, if the court considers that – (a) it would be inappropriate – (i)for proceedings in relation to the application or claim to be continued; or (ii)to grant the application or claim; or(b) no reasonable basis for the application or claim is disclosed; or (c) the application or claim is frivolous or vexatious; or (d) the application or claim is an abuse of the process of the court.” The Commissioner sought to demonstrate that no reasonable basis for the application had been disclosed and that it would be inappropriate for the application to continue. It should be noted that s 48 does not apply to orders sought under s 38 of the JR Act – which appears to be the section relied upon by MJE with respect to the statements of reasons. Section 38 of the JR Act provides:“38 Application for order to comply(1) If — (a) a person (the requester) makes a request under section 32 to a person (the decision-maker) for a written statement in relation to a decision; and (b) the decision-maker does not comply with the request, or apply to the court under section 39 in relation to the request, within 28 days after receiving the request; the requester may apply to the court for an order under this section. (2) If the court considers that the requester was entitled to make the request, the court may order the decision-maker to give the statement within a specified period.” A request for reasons may be the subject of an application under s 39 wherein an order is sought that the requester was not entitled to make the request:“39 Application for order that person not entitled to statement(1)If — (a) a person (the decision-maker) receives a request under section 32 from a person (the requester) for a written statement in relation to a decision; and (b) the decision-maker is of the opinion that the requester is not entitled to make the request; the decision-maker may apply to the court for an order under this section declaring that the requester was not entitled to make the request.(2)If the court considers that the requester was not entitled to make the request, the court may, by order, declare accordingly, but otherwise the court must refuse the application. (3) If the court refuses the application, the decision-maker must — (a) prepare the statement to which the request relates; and (b) give it to the requester within 28 days after the court’s decision.”

Ratio Decidendi

Legal Principle Established

So far as it is relevant, schedule two provides:“1 Administration of criminal justiceDecisions relating to the administration of criminal justice, and, in particular — (a)decisions in relation to the investigation or prosecution of persons for offences against the law of the State, the Commonwealth, another State, a Territory or a foreign country; and (b) decisions in relation to the appointment of investigators or inspectors for the purposes of such investigations; and (c) decisions in relation to the issue of search warrants under a law of the State; and (d) decisions under a law of the State requiring — (i) the production of documents or things; or (ii) the giving of information; or (iii) the summoning of persons as witnesses.2 Civil proceedings Decisions in relation to the institution or conduct of proceedings in civil courts, including decisions that relate to, or may result in, the bringing of such proceedings for the recovery of the proceeds of crime or the recovery of pecuniary penalties arising from contraventions of enactments, and, in particular — (a)decisions in relation to the investigation of persons for such contraventions or the recovery of the proceeds of crime; and(b)decisions in relation to the appointment of investigators or inspectors the purposes of such investigations; and (c) decisions in relation to the issue of search warrants under enactments; and (d) decisions under enactments requiring — (i) the production of documents or things; or (ii) the giving of information; or (iii) the summoning of persons as witnesses.”The application against the first respondent MJE has, in email correspondence to the Brisbane Magistrates Court, sought a statement of reasons with respect to decisions of Strofield M. That in itself, of course, does not create a right to a statement of reasons. Section 32 of the JR Act provides that if a person makes a decision to which Part 4 applies then a person who is entitled to make an application may request a written statement. MJE also seeks the review of decisions of Strofield M and of decisions made on appeal from his decisions. The decisions made by Strofield M were of a judicial character. They involved, among other things, the exercise of a judicial discretion under, for example, s 98 of the DV Act. They were not decisions of an administrative character. Decisions made by District Court judges in appeals from decisions of Strofield M and another magistrate are not susceptible to review under the JR Act. Apart from those judges not being parties to MJE’s application, the decisions were judicial decisions pursuant to the appellate jurisdiction of the District Court. They were not decisions of an administrative character. I note that the alleged absence of reasons was not a ground upon which MJE sought to appeal the decision of Strofield M. In any event, MJE was not entitled to any such reasons pursuant to the JR Act because they do not fall within the general description of a “decision of an administrative character”.

CITATION:	MJE v Strofield (Magistrate) & another [2021] QSC 126
PARTIES:	MJE (applicant) v MAGISTRATE COLIN STROFIELD (first respondent) COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (second respondent)
FILE NO/S:	BS No 12264 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	3 June 2021
DELIVERED AT:	Brisbane
HEARING DATE:	11 February 2021
JUDGE:	Martin J
ORDER:	1. The applicant’s applications are dismissed. 2. The applicant pay the second respondent’s costs of the application.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL FUNCTIONS – where the applicant seeks a statement of reasons with respect to decisions of the first respondent – where the applicant seeks the review of decisions of the first respondent and of decisions made on appeal from decisions of the first respondent – where the decisions were not decisions of an administrative character – whether the applications should be dismissed ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISION TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – GENERALLY – where the applicant seeks orders to review some actions by members of the Queensland Police Service – where the applicant seeks orders for statement of reasons for numerous decisions made by members of the Queensland Police Service with respect to the conduct of investigations and of court proceedings – where the decisions of the second respondent are not susceptible to a statutory order of review – where the decisions of the second respondent are not susceptible to a request for a statement of reasons – whether the application should be dismissed Crimes (Torture) Act 1988 Domestic and Family Violence Protection Act 2012, s 98 Human Rights Act 2019 Judicial Review Act 1991, s 4, s 31, s 32, s 38, s 39, s 48, sch 2 cl 1, sch 2 cl 2 Hinchcliffe v Commissioner of Police of the Australian Federal Police (2001) 118 FCR 308 LBU v Queensland Police Service and Anor [2020] QDC 279 Martin v Nadler [2018] WASC 138 Maxwell v The Queen (1996) 184 CLR 501 SRV v Commissioner of the Queensland Police Service and DTL [2020] QDC 208
COUNSEL:	Applicant appeared for himself No appearance for the first respondent M O’Brien for the second respondent
SOLICITORS:	No appearance for the first respondent Queensland Police Service Legal Division for the second respondent