Morrison v Land

[2000] QCA 147

[2000] QCA 147
COURT OF APPEAL

McMURDO P
DAVIES JA
MACKENZIE J

[MORRISON & Ors v LAND & Ors]

No 8042 of 1999

MORRISON & DENISE MARSHALL and
ROY & DESLEY BROWN  Applicants

and

ADRIAN LAND  First Respondent

and

RODERICK JOHN SUTHERS  Second Respondent

and

ANTHONY BRIAN RICE  Third Respondent

BRISBANE

..DATE 27/04/2000

JUDGMENT

THE PRESIDENT:  Mr Skyring seeks leave to be heard in this matter amicus curiae.  He is not a party to the proceedings.  He is a qualified engineer.  He is not a lawyer admitted to practice in Queensland.  He has, it seems, assisted the applicants in preparing their case for Court and now seeks to appear as Mackenzie's friend at the Bar table and to continue to assist them sitting at the Bar table.

Mr Skyring has conducted a deal of litigation before a number of Courts in Queensland in the State and Federal jurisdictions.  He was declared a vexatious litigant under section 3 of the Vexatious Litigant's Act 1981 on 5 April 1995.

Mr Skyring in his submission has shown no reason to justify his appearance before this Court either amicus curiae or acting as Mackenzie's friend to assist the appellants.  I would refuse Mr Skyring's application.

DAVIES JA:  I agree.

MACKENZIE J:  I agree.

...

THE PRESIDENT:  This is an appeal from a decision in the Supreme Court at Maryborough on 12 August 1999 dismissing the appellants' application for judicial review with costs.  The appellants were the defendants in a personal injuries action which proceeded to trial before Justice Byrne in the Supreme Court in Maryborough in March 1999. 

On 15 March 1999 the action settled and a consent order was made by Justice Byrne adjourning the matter to the settlement list and requiring the defendants (the appellants in this appeal) to pay the plaintiffs' costs of the action if not agreed.

The primary Judge held that the relief of the type sought by the appellants under section 43 of the Judicial Review Act 1991 was not available to review a settlement of an action between parties. Prerogative relief was never available as a remedy in such a situation. His Honour regarded the application under the Judicial Review Act 1991 at misconceived in those circumstances and dismissed the application with costs.

One of the appellants' complaints in respect of that order is as to the order for costs which they argue was unlawful under the Magna Carta.  The other complaints of the appellants from their submissions seem to be in effect that they were suborned by their legal representatives into agreeing to the settlement and that the trial Judge erred in not inquiring as to the basis of the settlement before making the consent order.  The written outline of submissions also seems to contain an allegation of fraud against the appellants' former legal representatives.

The giving of advice as to the prospects of success in an action or as to a basis upon which a client might consider settling an action is not a decision to which the Judicial Review Act 1991 applies (see sections 4 and 20 of the Judicial Review Act 1991). It is not a decision in the relevant sense under the Judicial Review Act.

Such advice has no consequences affecting the rights of the client merely by being given. It only has effect if the client makes a decision to accept the advice and act accordingly. That decision is the clients' and is outside the scope of the Judicial Review Act 1991. Nor can the giving of legal advice properly be described as being of an administrative character in the relevant sense. Nor is the rendering of advice to a client a decision made under a statute in the relevant sense under the Judicial Review Act 1991.

A decision of a Supreme Court Judge, furthermore, has never been subject to prerogative writ.  The decision by Justice Byrne to make a consent order cannot be reviewed by prerogative order. 

The learned primary Judge was plainly correct in ruling that no remedy lay to the appellants under the Judicial Review Act 1991. The application under that Act was indeed misconceived and was rightly dismissed.

As have been noted, the appellants also complained that Magna Carta prohibited the primary Judge from ordering them to pay costs.  That argument was rejected in Stanbridge v. The Premier of Queensland, 1995 QSC 201, which reaffirmed the well established principle that Magna Carta can be displaced by local statutes. 

As to costs orders, Magna Carta was replaced in Queensland by section 58 of the Supreme Court Act of 1867 which gave a general power to the Supreme Court to award costs. The corresponding provision now is section 225, Supreme Court Act 1995.

In my view this appeal should be dismissed with costs.

DAVIES JA:  I agree.

MACKENZIE J:  I agree.  Whether the application is viewed as an application for a prerogative order or for judicial review of administrative action it is not viable and I therefore agree.

THE PRESIDENT:  The order is the appeal is dismissed with costs.  Mr Webb?

MR WEBB:  If it please the Court, as mentioned in the outline on behalf of the two respondents I appear, costs are sought on an indemnity basis.

THE PRESIDENT:  Yes. 

MR WEBB:  And I wish to hand up a letter that was forwarded to the appellants in this matter or a copy of that letter.  I apologise, I only have one such letter.

THE PRESIDENT:  Yes.  That will be Exhibit 1.

MR WEBB: The reason that I tendered the letter was that it raises a further matter not mentioned in the outline for seeking indemnity costs. That's the continued involvement of Mr Skyring in the matter, given the history which has been canvassed well and truly before this Court most recently by Mr Justice Douglas when he refused an application for leave under the Vexatious Litigants Act.

Viewed in totality, therefore, it's my submission there's absolutely no cogent reason advanced for bringing this appeal and continuing with it as it does indeed increase the costs to a person who obtained the benefit of a settlement to which the appellants by their counsel and solicitor agree, and it would be unjust, in my submission, if the respondents in those circumstances were obliged to bear all of their costs being those costs above and beyond costs on the standard basis. 

The application is made pursuant to rule 704 of the Uniform Civil Procedure Rules. I really can add nothing further.

THE PRESIDENT:  In the circumstances the order is as stated.  The appeal is dismissed with costs on the ordinary basis to be assessed.

‑‑‑‑‑