Ogawa v. Briggs & Ors - [2008] QSC 18

SUPREME COURT OF QUEENSLAND

CITATION:

Ogawa v Briggs & Ors [2008] QSC 18

PARTIES:

MEGUMI OGAWA
(applicant)
v
MARK BRIGGS
(first respondent)
EXTERNAL REVIEW OFFICER
(second respondent)
SENIOR JUDGE SKOIEN
(third respondent)
LEGAL AID QUEENSLAND
(fourth respondent)

FILE NO:

BS495 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED EX TEMPORE ON:

25 January 2008

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

25 January 2008

JUDGE:

Wilson J

ORDER:

That the application for the statutory orders of review and orders of review and the amended application made by Ms Ogawa in proceeding BS495 of 2008 be dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – PARTICULAR CASES – the applicant sought judicial review of a number of decisions pertaining to legal aid funding for her defence of criminal charges in the District Court: the decision to terminate her aid; the decision of the second respondent confirming that decision; and the subsequent decision to grant aid on conditions – whether the decisions were made under an enactment

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISCRETION NOT TO ENTERTAIN APPLICATION – GENERALLY – the decision to cancel the applicant’s legal aid was made in October 2007 – the application was filed on 17 January 2008 and made returnable on Friday 25 January 2008 – the District Court trial to which the legal aid funding pertained was listed to start on Monday 28 January 2008 – whether the application was frivolous or vexatious – whether the application should be allowed to proceed

Judicial Review Act 1991 (Qld) s 48

Griffith University v Tang (2005) 221 CLR 99, applied

COUNSEL:

The applicant appeared on her own behalf
D Shepherd for the first, second and fourth respondents
C E Chapman for the third respondent

SOLICITORS:

The applicant appeared on her own behalf
Legal Aid Queensland for the first, second and fourth respondents
C W Lohe, Crown Solicitor for the third respondent

Wilson J: This is the first return date of an application for judicial review made by Megumi Ogawa. Ms Ogawa has appeared self-represented by telephone. English is not her first language.

The application is not supported by affidavit material or full submissions but Ms Ogawa did provide a bundle of documents which have been marked as an exhibit.

She is the defendant in criminal proceedings listed for trial in the District Court next week. She seeks judicial review of decisions relating to the grant of legal aid for her representation in those proceedings.

Mr Shepherd of counsel appeared for the first, second and fourth respondents who are respectively an internal review officer in the employ of Legal Aid Queensland, an external review officer engaged by Legal Aid Queensland, and the Chief Executive Officer of Legal Aid Queensland.

Ms Chapman appeared for the third respondent who is a District Court Judge who has refused to adjourn the criminal proceedings. Ms Chapman indicated that her…

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 Ogawa v. Briggs & Ors

Details

AGLC: Ogawa v Briggs [2008] QSC 18
Case: [2008] QSC 18
Decision Date: 25 January 2008

CaseChat Overview and Summary

In the matter of Ogawa v Briggs & Ors, the applicant, Ms Ogawa, sought judicial review of several decisions concerning the funding of legal aid for her defence against criminal charges in the District Court. Specifically, she sought review of the decision to terminate her legal aid, the confirmation of that decision by the second respondent, and the subsequent decision to grant aid on conditions. The primary question for the court was whether these decisions were made under an enactment, thus falling within the scope of judicial review legislation.

The court had to consider whether the decisions to terminate and subsequently to grant conditional legal aid were indeed made under an enactment. Ms Ogawa argued that the Legal Aid Commission's decisions were subject to judicial review as they were made under the Legal Aid Act. The respondents contended that the decisions were not subject to review because they did not fall within the definition of a decision made under an enactment. The court examined the nature of the decisions and whether they were made pursuant to the authority granted by the Legal Aid Act.

In determining that the decisions were not subject to judicial review, the court found that the Legal Aid Commission did not act under the authority of the Legal Aid Act when it decided to terminate and subsequently grant conditional legal aid. The court concluded that these decisions were not made under an enactment, and therefore did not fall within the scope of judicial review. Additionally, the court found that the application was filed very close to the commencement of the District Court trial, which was deemed to be an attempt to delay the proceedings. The court dismissed the application as frivolous and vexatious, and refused to allow it to proceed.

The court ordered that the application for statutory orders of review and orders of review, as well as the amended application made by Ms Ogawa, be dismissed. This outcome reflected the court's view that the decisions in question were not subject to judicial review, and that the application itself was not made in good faith.

Orders

Orders of the court

That the application for the statutory orders of review and orders of review and the amended application made by Ms Ogawa in proceeding BS495 of 2008 be dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Ogawa v Briggs & Ors [2008] QSC 18
PARTIES:	MEGUMI OGAWA (applicant) v MARK BRIGGS (first respondent) EXTERNAL REVIEW OFFICER (second respondent) SENIOR JUDGE SKOIEN (third respondent) LEGAL AID QUEENSLAND (fourth respondent)
FILE NO:	BS495 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED EX TEMPORE ON:	25 January 2008
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	25 January 2008
JUDGE:	Wilson J
ORDER:	That the application for the statutory orders of review and orders of review and the amended application made by Ms Ogawa in proceeding BS495 of 2008 be dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – PARTICULAR CASES – the applicant sought judicial review of a number of decisions pertaining to legal aid funding for her defence of criminal charges in the District Court: the decision to terminate her aid; the decision of the second respondent confirming that decision; and the subsequent decision to grant aid on conditions – whether the decisions were made under an enactment ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISCRETION NOT TO ENTERTAIN APPLICATION – GENERALLY – the decision to cancel the applicant’s legal aid was made in October 2007 – the application was filed on 17 January 2008 and made returnable on Friday 25 January 2008 – the District Court trial to which the legal aid funding pertained was listed to start on Monday 28 January 2008 – whether the application was frivolous or vexatious – whether the application should be allowed to proceed Judicial Review Act 1991 (Qld) s 48 Griffith University v Tang (2005) 221 CLR 99, applied
COUNSEL:	The applicant appeared on her own behalf D Shepherd for the first, second and fourth respondents C E Chapman for the third respondent
SOLICITORS:	The applicant appeared on her own behalf Legal Aid Queensland for the first, second and fourth respondents C W Lohe, Crown Solicitor for the third respondent