Nona v Barnes - [2012] QSC 35

SUPREME COURT OF QUEENSLAND

CITATION:

Nona and Anor v Barnes [2012] QSC 35

PARTIES:

GEORGE NONA
(First Applicant)

and

LILY-ANNIE AHMAT
(Second Applicant)

v

MICHAEL BARNES
(Respondent)

FILE NO/S:

BS 8503 of 2011

DIVISION:

Trial Division

PROCEEDING:

Judicial Review

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

29 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2011

JUDGE:

McMurdo J

ORDER:

Application dismissed.

Order as to costs to be determined.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – MEANING OF DECISION – where the applicant challenges the respondent’s failure to refer its findings to the Director of Public Prosecutions – where the applicant sought reasons why no referral was made – whether the coroner made a decision as defined by the Act requiring him to publish reasons for that decision

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Coroners Act 2003 (Qld)

Judicial Review Act 1991 (Qld)

Attorney-General (Cth) v Queensland (1990) 25 FCR 125

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Evans v Friemann

Griffith University v Tang (2005) 221 CLR 99

Legal Aid Commission of Western Australia v Edwards (1982) 61 FLR 419

Salerno v National Crime Authority (1997) 75 FCR 133

COUNSEL:

PJ Davis SC with AD Scott for the applicants

M Hinson SC for the Attorney-General

SOLICITORS:

Bottoms English Lawyers for the applicants

R Marsh (Crown Law) for the respondent

Crown Solicitor for the Attorney-General

This case arises from an inquest conducted by the respondent, the State Coroner, into the deaths of several persons in the loss of a vessel, the Malu Sara, in the Torres Strait in 2005. One of the deceased persons was a brother of the present applicants and they were legally represented at the inquest. The coroner published his findings in February 2009.

The applicants make no complaint, at least at present, about the coroner’s findings. Their complaint is that he did not send information, obtained in the course of his investigations, to the Director of Public Prosecutions (DPP), or at the least, that he did not properly consider whether he should do so. By these proceedings, they seek a statement of the respondent’s reasons for what the application, as filed, described as “the decision by the … respondent to not give information obtained while investigating the deaths of [the deceased] to any prosecuting authorities under s 48(2) of the Coroners Act 2003 (Qld)”.

The Coroner does not actively defend the proceedings. The Attorney-General has intervened to do so, pursuant to s 51 of the Judicial Review Act 1991 (Qld) (“the JRA”).

The application is resisted by two arguments. The first is that there is no entitlement to a statement of reasons, pursuant to s 38 of the JRA, because there was no “decision” in the sense in which that word is used in the section. As is common ground, the word “decision” in s 38 takes its meaning from the definition of “decision to which this…

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 Nona v Barnes

Details

AGLC: Nona v Barnes [2012] QSC 35
Case: [2012] QSC 35
Decision Date: 29 February 2012

CaseChat Overview and Summary

In the Federal Court of Australia, Nona brought an application against Barnes, the respondent, seeking judicial review of a decision by Barnes, as the coroner, not to refer certain findings to the Director of Public Prosecutions. The dispute centred on the coroner's decision to not refer particular findings to the Director, and Nona sought reasons for this decision. Nona argued that the coroner's failure to refer the findings amounted to a reviewable decision under the Judicial Review Act.

The central legal issue before the court was whether the coroner's decision not to refer findings to the Director of Public Prosecutions constituted a decision that required the coroner to provide reasons under the Judicial Review Act. Specifically, the court needed to determine if the coroner's decision to not refer was a decision that was subject to the Act's requirement for the publication of reasons. If such a decision was made, the coroner would be obligated to provide reasons for the decision.

The court held that the coroner's decision not to refer the findings to the Director of Public Prosecutions did not constitute a decision that required the publication of reasons under the Judicial Review Act. The court found that the coroner's decision was not a decision of an administrative character, and therefore, it did not fall within the scope of decisions that required reasons to be provided. Consequently, the application for judicial review was dismissed, and the court ordered that the application be dismissed with no order as to costs at this stage of the proceedings.

Orders

Orders of the court

Application dismissed.

Order as to costs to be determined.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Nona and Anor v Barnes [2012] QSC 35
PARTIES:	GEORGE NONA (First Applicant) and LILY-ANNIE AHMAT (Second Applicant) v MICHAEL BARNES (Respondent)
FILE NO/S:	BS 8503 of 2011
DIVISION:	Trial Division
PROCEEDING:	Judicial Review
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	29 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2011
JUDGE:	McMurdo J
ORDER:	Application dismissed. Order as to costs to be determined.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – MEANING OF DECISION – where the applicant challenges the respondent’s failure to refer its findings to the Director of Public Prosecutions – where the applicant sought reasons why no referral was made – whether the coroner made a decision as defined by the Act requiring him to publish reasons for that decision Administrative Decisions (Judicial Review) Act 1977 (Cth) Coroners Act 2003 (Qld) Judicial Review Act 1991 (Qld) Attorney-General (Cth) v Queensland (1990) 25 FCR 125 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Evans v Friemann Griffith University v Tang (2005) 221 CLR 99 Legal Aid Commission of Western Australia v Edwards (1982) 61 FLR 419 Salerno v National Crime Authority (1997) 75 FCR 133
COUNSEL:	PJ Davis SC with AD Scott for the applicants M Hinson SC for the Attorney-General
SOLICITORS:	Bottoms English Lawyers for the applicants R Marsh (Crown Law) for the respondent Crown Solicitor for the Attorney-General