Palmer v Magistrate McKenzie

Case [2025] QSC 127

SUPREME COURT OF QUEENSLAND

CITATION: Palmer v Magistrate McKenzie & others [2025] QSC 127
PARTIES:

CLIVE FREDERICK PALMER
(applicant)
v
MAGISTRATE MCKENZIE
(first respondent)
AND
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(second respondent)
AND
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
(third respondent)
FILE NO: BS 11622 of 2024
DIVISION: Trial Division
PROCEEDING: Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane
DELIVERED ON: 5 June 2025
DELIVERED AT: Brisbane
HEARING DATE: 20 February 2025
JUDGE: Martin SJA
ORDER: THE PARTIES ARE TO BRING IN MINUTES OF ORDER.
CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – JURISDICTION – where the second respondent filed three criminal complaints against the applicant and an associated corporate entity alleging various offences under the Criminal Code Act 1899 and the Corporations Act 2001 (Cth) – where the applicant applied to the Magistrates Court seeking orders that the complaints be summarily dismissed at the pre-committal stage – where the first respondent, exercising federal jurisdiction, heard and dismissed part of the application on the basis that the Justices Act 1886 did not provide the Magistrates Court with jurisdiction to grant the relief sought – where the first respondent’s decision was made under the Justices Act as ‘picked up’ by section 79 of the Judiciary Act 1903 (Cth) to apply in federal jurisdiction – where the applicant applied to the Supreme Court seeking judicial review of the decision in reliance on s 30 of the Judicial Review Act 1991 or s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – where the applicant applies to amend his application to rely upon various provisions of the Judiciary Act, the Constitution of Queensland Act 1867, and the Corporations Act 2001 (Cth) as alternative bases for judicial review – whether s 79 of the Judiciary Act, as applied, operated such that the first respondent’s decision was made under a federal enactment – whether s 9 and s 9A of the ADJR Act deny the Supreme Court of jurisdiction to hear the application – whether a State Magistrate exercising federal jurisdiction is an “officer of the Commonwealth” – whether leave to amend the application should be granted – whether the proceeding should be transferred to the Federal Court of Australia

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 3, s 9, s 9A, s 16
Commonwealth of Australia Constitution Act 1900 (Cth), s 75(iii), s 109
Constitution of Queensland Act 2001 (Qld), s 58
Corporations Act 2001 (Cth), s 1337B, s 1337H, s 1338A, s 1338B, s 1338C
Federal Court of Australia Act 1976 (Cth), s 23
Judicial Review Act 1991 (Qld), s 30, s 43, s 47
Judiciary Act 1903 (Cth), s 39(2), s 39B(1C)(d), s 68, s 79
Justices Act 1886 (Qld), s 22A, s 103B(1)

Attorney-General (Cth) v Huynh (2023) 408 ALR 684; (2023) 97 ALJR 298; [2023] HCA 13, considered
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1, cited
Director of Public Prosecutions (Cth) v Kainhofer

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Details
AGLC
Palmer v Magistrate McKenzie [2025] QSC 127
Case
[2025] QSC 127
Decision Date

CaseChat Overview and Summary

The case of Palmer v Magistrate McKenzie involved a dispute between the applicant, Mr Palmer, and the second respondent who had filed criminal complaints against Mr Palmer and an associated corporate entity. The matter was heard in the Supreme Court, which was asked to review the decision of the first respondent, a Magistrate, who had dismissed part of Mr Palmer's application for the complaints to be summarily dismissed at the pre-committal stage. The crux of the dispute was whether the Magistrates Court had the jurisdiction to grant the relief sought by Mr Palmer and whether the Supreme Court had jurisdiction to review the decision of the Magistrate exercising federal jurisdiction.

The court was required to determine several legal issues, including whether section 79 of the Judiciary Act 1903 (Cth) applied to make the decision of the Magistrate, exercising federal jurisdiction, one made under a federal enactment. Another key issue was whether sections 9 and 9A of the Administrative Decisions (Judicial Review) Act 1977 (Cth) denied the Supreme Court jurisdiction to hear Mr Palmer's application. The court also had to consider whether a State Magistrate exercising federal jurisdiction was an "officer of the Commonwealth" and whether leave should be granted to amend Mr Palmer's application to include additional grounds for judicial review.

The court found that section 9A of the ADJR Act, which specifically limits jurisdiction to review related criminal justice process decisions, applied to the Magistrate's decision. The court held that the decision was indeed a "related criminal justice process decision," and thus, no court had jurisdiction to review it. The court further clarified that a State Magistrate exercising federal jurisdiction becomes part of the Federal Judicature and, as such, is not an "officer of the Commonwealth" within the meaning of the Judiciary Act. Consequently, the Supreme Court was denied jurisdiction to review the decision of the Magistrate. The court refused leave to amend the application and did not transfer the proceeding to the Federal Court of Australia.

ORDERS:
The parties are to bring in minutes of order.

Orders

Orders of the court

THE PARTIES ARE TO BRING IN MINUTES OF ORDER.

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

While s 9 is directed to denying State courts any jurisdiction to review decisions made under Commonwealth legislation, s 9A of the ADJR Act is more focussed and applies specifically to criminal proceedings and to all courts:“9ALimitation of jurisdiction to review related criminal justice process decisions(1)Subject to subsection (2), at any time when: McKenzie M’s decision was a “decision in connection with the … committal for trial” of Mr Palmer[16]. The words “in connection with” have “… a wide connotation, requiring merely a relation between one thing and another. They do not necessarily require a causal relationship between the two things … They may be used to describe a relationship with a contemplated future event …”.[17] Thus, the matter before McKenzie M was a “related criminal justice process decision” and “no court has jurisdiction to hear, continue to hear or determine an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision.”[18][16]This was accepted by Mr Palmer in the written submissions filed on his behalf.[17]Our Town FM Pty Ltd v Australian Broadcasting Tribunal (No 1) (1987) 16 FCR 465[18]Administrative Decisions (Judicial Review) Act 1977 (Cth) s 9A(1)What is the effect of the principle in Kirk v Industrial Court (NSW)? Mr Palmer has raised a constitutional question about the validity of s 9A of the ADJR Act. (The argument was later extended to include s 9.) In the notices issued by Mr Palmer under s 78B of the Judiciary Act he formulated the proposition in this way – if it is contended that, by reason of s 9A of the ADJR Act, the Supreme Court is usurped of jurisdiction to review the Magistrate’s decision then, to that extent, he argues that, in reliance on Kirk v Industrial Court (NSW), s 9A is limited in its application to “decisions” made within the limits of power, that is, those not attended by jurisdictional error. In Kirk the High Court considered, among other things, the supervisory jurisdiction of the Supreme Court of New South Wales. In that regard, the relevant legislation was the Industrial Relations Act 1996 (NSW). Section 179 of that Act provided that a decision of the Industrial Court “is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal”. The provision extended to proceedings for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, injunctions, declaration or otherwise. It did not apply to the exercise of a right of appeal to a Full Bench of the Industrial Court. The High Court held that legislation which would take from the Supreme Court of a State the power to grant relief on account of jurisdictional error was beyond State legislative power, whereas legislation which denied the availability of relief for non-jurisdictional error of law appearing on the face of the record was not beyond power.[19] [19](2010) 239 CLR 531 at [100], [113]

Ratio Decidendi

Legal Principle Established

Bell, Gageler, Keane, Nettle and Gordon JJ concluded their decision in Rizeq in the following way:“[103] Within the limits of State legislative capacity, State laws apply in federal jurisdiction as valid State laws unless and to the extent that they are rendered invalid by reason of inconsistency with Commonwealth laws. What State laws relevantly cannot do within the limits of State legislative capacity is govern the exercise by a court of federal jurisdiction. A State law can determine neither the powers that a court has in the exercise of federal jurisdiction nor how or in what circumstances those powers are to be exercised. A State law cannot in that sense “bind” a court in the exercise of federal jurisdiction, and that is the sense in which that word is used in s 79 of the Judiciary Act. The operation of s 79 is limited to making the text of the State laws of that nature apply as Commonwealth law to bind a court in the exercise of federal jurisdiction.[104] Section 114(2) of the Criminal Procedure Act, governing what is to be taken to be the verdict of a jury, is a useful illustration. Its application to a Western Australian court exercising federal jurisdiction is beyond the competence of the Parliament of Western Australia. Consistently with the prescription in s 7 of the Interpretation Act 1984 (WA) that every written law of Western Australia is to be construed “subject to the limits of the legislative power of the State”, s 114(2) is properly interpreted as applying to a Western Australian court only when exercising Western Australian jurisdiction. The text of s 114(2) is applied, as Commonwealth law, to a Western Australian court when exercising federal jurisdiction through the operation of s 79 of the Judiciary Act, except as otherwise provided by the Constitution or by some other Commonwealth law. That is what occurred in the trial of Mr Rizeq, there being no provision of the Constitution or of other Commonwealth law preventing it.[105] Section 6(1)(a) of the Misuse of Drugs Act, in contrast, is a law having application independently of anything done by a court. It is squarely within State legislative competence and outside the operation of s 79 of the Judiciary Act. It applied in the trial of Mr Rizeq as Western Australian law just as it applied to him before any court was called upon to exercise jurisdiction in relation to the charges brought against him.” (emphasis added) The effect of investing a State court with federal jurisdiction was described in this way by Kiefel CJ:“[5] A State court invested with federal jurisdiction, while acting in that capacity, becomes part of the Federal Judicature. Chapter III provides for an “integrated national court system”. …[8] A legislative grant of federal jurisdiction simply means that authority is given to a court to hear and determine a matter.…[9] Federal jurisdiction, understood as the authority conferred upon a court to adjudicate a matter, is to be distinguished from the law that that court applies in the exercise of that jurisdiction. In Anderson v Eric Anderson Radio & TV Pty Ltd, Kitto J explained that the conferral of federal jurisdiction merely provided a different basis for the authority of a court to enforce whatever law is applicable to the matter before it. It does not change the law the court enforces in adjudicating upon that matter. It follows that the fact that a court is exercising federal jurisdiction says nothing about the laws to be applied in a particular case.…[11] The federal jurisdiction that a State court is given to hear and determine a matter must also be distinguished from provisions made by statute which provide a court with powers it may exercise in the hearing and determination of a matter, and in otherwise regulating the proceedings before it.” (citations omitted)