Payne v Deer
[1999] QSC 124
•11 June 1999
IN THE SUPREME COURT
OF QUEENSLAND
No. 4877 of 1999
Brisbane
Before Chief Justice P. de Jersey
[Payne v. Deer]
BETWEEN:
JACQUELINE VERONICA PAYNE
Applicant
AND:
STANLEY JAMES DEER
Respondent
JUDGMENT - de JERSEY CJ
Judgment delivered 11 June 1999
On 1 April 1999 the Governor in Council appointed the applicant, Ms Payne, as a stipendiary magistrate. To exercise the powers and functions of that office, she was obliged to take the requisite oath. She did that on 12 April 1999. The respondent is the Chief Stipendiary Magistrate. He has statutory responsibility (s 10(1) Stipendiary Magistrates Act 1991) “for ensuring the orderly and expeditious exercise of the jurisdiction and powers of magistrates courts”. As part of that, he may “determine ... the magistrates who are to constitute magistrates courts at particular places” (s 10(2)(a)). By letter dated 14 April 1999 which he handed to Ms Payne that day, the Chief Magistrate confirmed to her that he had assigned her to the position of stipendiary magistrate at Townsville, to commence at 9am on Friday 7 May 1999. She informed him that she was, at that time, “unable to relocate to Townsville”. The Chief Magistrate did not thereafter vary his direction to her, and Ms Payne has remained in Brisbane, her long term place of residence. Consequently, on 10 May, the Chief Magistrate called on Ms Payne to show cause by 25 May why he should not discipline her by way of reprimand, under s 10(3), for her wilful failure to comply with his direction (sub-s (3)(e)) and for her absenting herself from duty (at Townsville) without leave or reasonable excuse (sub-s(3)(d)). Correspondence ensued. On 26 May 1999 the Chief Magistrate notified Ms Payne that, having failed to show cause, she was disciplined by way of reprimand (s 10(3)) for wilful failure to comply with the direction that she sit at Townsville. On 14 April Ms Payne had indicated to the Chief Magistrate a wish to sit and hear cases in Brisbane, but he had declined to allocate work to her at this centre.
Ms Payne applied to the Supreme Court for a statutory order of review in relation to each of the three decisions by the Chief Magistrate to which I have referred: first, the direction that she sit in Townsville from 7 May 1999; second, that he would not allocate work to her in Brisbane; and third, that she be “disciplined by way of reprimand” (that is the language of the Act).
When the matter first came before me on 31 May, I urged the parties to seek to resolve their differences by negotiation. I observed that the public ventilation of these issues was not good for the administration of justice generally. In resuming the hearing on Friday 4 June, I was assured that a negotiated resolution could not be achieved. The matter must therefore regrettably proceed to the point of judicial adjudication.
As to the first decision directing Ms Payne to sit in Townsville from 7 May, the applicant seeks to characterise it as an “improper exercise of the power” of the Chief Magistrate conferred by s 10(2)(a) of the Stipendiary Magistrates Act. Section 20(2)(e) of the Judicial Review Act 1991 specifies that as an available ground for the judicial review of such administrative decisions. As provided by section 23 of that Act, an “improper exercise of power” may arise where the person exercising the power takes an irrelevant consideration into account (para (a)), fails to take a relevant consideration into account (para (b)), or exercises the power so unreasonably “that no reasonable person could so exercise the power” (para (g))
. 5 Ms Payne further contends that she was not accorded natural justice (s 21(2)(a)), in that she was not given an opportunity to make submissions against the direction when it was proposed. In addition, the requisite procedure was not followed, she asserts, in that the Chief Magistrate “failed to consider whether it was appropriate or practicable to consult with the applicant and or other magistrates before making it”(s 21(2)(b) Judicial Review Act, s 10(2) Stipendiary Magistrates Act)..
The second and third decisions were in a large sense consequential upon the Chief Magistrate’s holding firm to his direction that Ms Payne should sit in Townsville from 7 May 1999, notwithstanding her declining to do so. If the result of this application is an order setting aside the first direction, then the other directions should also consequently be set aside. For the moment, there is no need for me to recapitulate the particular additional points made by the applicant with relation to those subsequent determinations.
It is necessary now that I say more about the facts of the matter. Of particular potential significance is the circumstance that Ms Payne has the primary care of five children, aged respectively 11 years, 8 years, 5 years, 3 years, and 17 months. She is still breastfeeding the youngest child. Three of the children attend primary school. Ms Payne and her husband, from whom she is separated, jointly look after the children, although they are her primary responsibility. Both she and her husband are solicitors. Ms Payne’s professional career has involved her appearing regularly before the Brisbane Magistrates Court, for almost the last 13 years. Both she and her husband have practised and practise substantially in the criminal jurisdiction. While Ms Payne has been at work, she has been assisted in the care of the children by a nanny.
On 26 March 1999 the Attorney General offered Ms Payne an appointment as stipendiary magistrate, requesting an answer by 28 March. On 28 March she accepted the appointment. Three days later, she raised with the Attorney General the question where she might be required to sit. The Attorney General informed her that that was for the Chief Magistrate to determine, but later informed her that the Chief Magistrate “had made a preliminary decision to send (her) to Townsville almost immediately”. She was formally appointed as stipendiary magistrate by the Governor in Council on 1 April. On 6 April the Chief Magistrate informed her that he intended to direct that she sit in Townsville in about a fortnight’s time. I accept that she responded that it would be difficult if not impossible for her to do so because of her personal circumstances and family responsibilities. She wrote to the Chief Magistrate on 8 April asking him to reconsider the course he proposed, and informing him in more detail of her family and other domestic circumstances. The nature of her concern may be better gathered from these paragraphs in that letter:
“As you can see it is entirely impossible for me to relocate my household out of Brisbane without some many months notice and a great deal of planning and organisation.
Indeed, given everything that is involved in relocating a young family including finding suitable accommodation, schools and carers and to avoid the disruption to the school year for my school children (my eldest is in year 7) it is impractical, if not impossible to relocate from Brisbane before the end of the school year. I ask that I not be directed to consider such a move before then.”
On 9 April, having considered the applicant’s letter, the Chief Magistrate informed her that he had not changed his mind. On 12 April he administrated the oath of office to the applicant.
On 12 May the Chief Magistrate provided Ms Payne with a statement of his reasons for the decision that she sit in Townsville from 7 May 1999. The Chief Magistrate, one observes, has responsibility for the administrative affairs of a court comprising as many as 73 magistrates who sit throughout the State, and that is a very large responsibility. As from late March this year, there were vacancies on the bench at Townsville and in Brisbane. The Chief Magistrate determined that Ms Payne should fill the vacancy at Townsville and that another magistrate, Mr Verra, should sit at Brisbane. I may conveniently now set out the relevant part of the document expressing the Chief Magistrate’s reasons and the findings on which they were based:
“EVIDENCE OR OTHER MATERIAL ON WHICH FINDINGS OF FACT WERE BASED.
In arriving at my decision I had before me for consideration the following material.
• A copy of the Stipendiary Magistrates Act 1991
•A copy of the Selection Criteria for Appointment to the position of Stipendiary Magistrate (copy attached).
•Information provided to me by the Attorney General namely that Ms Payne had 5 children
•Information gleaned from a previous expression of interest by Ms Payne for appointment to the position of Stipendiary Magistrate during the tenure of Mr Dean Wells as Attorney General namely that she had responded in writing to criteria No 6 of the “Selection Criteria - Stipendiary Magistrate” with the words “I will have to see you about this at a later time”.
•A statement by the Attorney General Mr Foley, made to me prior to Ms Payne’s appointment, to the effect that she must be prepared to serve anywhere in the State.
•General information regarding Ms Payne and her family namely that she was separated from her husband.
•General knowledge of Ms Payne’s professional experience obtained from her appearances in the Magistrates Court over the years.
•A copy of expression of interest submitted by Mr Verra seeking appointment as a Stipendiary Magistrate setting out his experiences as an Acting Magistrate.
•At the time of writing to Ms Payne on 14 April 1999 confirming my decision of 6 April, I had the following pieces of correspondence:
Letter from Ms Payne dated 8 April 1999
Letter from Ms Payne dated 12 April 1999 (copies attached).
•An awareness that I had reduced the number of Magistrates in Brisbane and that the Brisbane workload had not decreased.
•An awareness that Mr Verra had had almost 2 years actual Bench experience as an Acting Magistrate for the State of Queensland.
•Information that Mr Verra had occupied the position of Clerk of the Court, Charters Towers for more than 10 years.
•Knowledge of the Court at Townsville and the Court circuits worked from Townsville and that with the exception of the circuit to Hughenden/Richmond it was possible to work the circuit Courts and not be absent from Townsville overnight.
•Knowledge that collegiate support would be available to Ms Payne in Townsville
•That it was desirable, as far as was practicable, that a person appointed to the Magistracy from a particular centre not be assigned in the first instance to the Courts in that area.
FINDINGS ON MATERIAL QUESTIONS OF FACT
•Mr Verra had wide experience as a Magistrate compared to Ms Payne.
•That the establishment number of Magistrates for the Brisbane Bench had been reduced.
•That there was no reduction in the work coming before that Court.
•That the Brisbane Bench already had two newly appointed Magistrates in its complement who were not yet “up to speed”.
•That Ms Payne had practised as a Criminal Lawyer for a number of years and appeared regularly in this Court
•That Ms Payne’s estranged husband was a partner in a firm of Solicitors with a large criminal practice and that he and/or other representatives of that firm appeared regularly in this Court.
•That Mr Verra had lived and worked in Charters Towers and Townsville for a number of years.
REASONS FOR DECISION
I made the decision that Ms Payne should be assigned to the position of Stipendiary Magistrate at Townsville and that Mr Verra should be assigned to the position of Stipendiary Magistrate Brisbane:
•For Ms Payne’s and Mr Verra’s personal professional development
•For the orderly and more efficient operation of the Magistrates Court at Brisbane”
Counsel for the applicant, Ms Holmes, began with s 10(2) of the Stipendiary Magistrates Act, which commits to the Chief Magistrate administrative responsibility for “ensuring the orderly and expeditious exercise of the jurisdiction and powers of magistrates courts”, including determining where magistrates should sit, subjecting that “to such consultation with magistrates as the Chief Magistrate considers appropriate and practicable”. Implicitly, she urged, consideration of personal circumstances of magistrates may be appropriate.
Here, consultation was practicable but, she submitted, in no real sense occurred. One of her points was that had the Chief Magistrate consulted properly with Ms Payne, he would have been able to give due consideration to the significance of her personal circumstances. Another was that had he consulted with other magistrates, he could have determined whether there were others prepared to sit in Townsville - as, for example was the case with Mr Glasgow. (The Chief Magistrate has sworn that he did not consider such consultation “necessary”, as he was already apprised of “all matters (he) required to determine where the applicant was best placed for the most efficient running of the courts”.)
And so, Ms Holmes submitted, the Chief Magistrate did not follow the correct procedure, in that he failed to consider the appropriateness of embarking first on a course of consultation. In a consequential way, he denied Ms Payne natural justice, in that he did not seek her views on the course he intended following. Third, his decision was tainted by irrelevant considerations, and vulnerable for the ignoring of relevant matters, especially Ms Payne’s domestic and family circumstances.
On the other hand, the Chief Magistrate contends that the administrative character of the decision he was called upon to make excluded any obligation to accord natural justice in the usual way (Attorney General (NSW) v. Quin (1990) 170 CLR 1, 35-6). In any event, Ms Payne was afforded, and exercised, an opportunity to make representations as to the course he proposed.
Mr G Newton, who appeared for the Chief Magistrate, characterised this application as in reality seeking a “review of the merits” incompatible with judicial review: the essence of Ms Payne’s complaint, he submitted, is that the Chief Magistrate failed to give sufficient weight to her personal circumstances.
Mr Newton also challenged whether Ms Payne genuinely intends ever acceding to a direction to sit in Townsville, even if deferred. I return to this question later.
Finally, Mr Newton suggested that Ms Payne sought a primacy for her personal considerations which was incompatible with the proper discharge of the Chief Magistrate’s very broad responsibility, as may be gathered from this passage in the written submissions:
“It is clear that the respondent has broad obligations in the proper administration of the magistrates courts. There are 73 sitting magistrates, and those obligations involve many factors which might be regarded by him as of more significance than the personal circumstances, however personally meritorious, of Ms Payne. The respondent does, however, depose to his knowledge of Ms Payne’s personal circumstances ... in essence, the respondent had two positions to fill - one in Townsville and one in Brisbane. The respondent deposes to his reasons for preferring Mr Verra SM over Ms Payne for the Brisbane position, namely Mr Verra was much more experienced. Also, the respondent sought to avoid the possibility of conflicts arising as a consequence of Ms Payne’s extensive criminal practice in Brisbane before the Magistrates Court ...”
I have sought in the preceding paragraphs to summarise the principal contentions made on the parties’ behalf. The summary does not cover all matters which were raised in the written material and were the subject of oral submissions before me. I have taken all of those matters into account, but I have attempted to summarise in the preceding paragraph those principally relevant to my resolution of the matter.
It must plainly be acknowledged that the process of judicial review of administrative decisions set up by the Judicial Review Act does not authorise the court to conduct its own review of the merits of those decisions. Compare Attorney General (NSW) v. Quin, supra, and Black v. Deer, Supreme Court of Queensland, No. 20 of 1995, Williams J, unreported 27 November 1995. Mr Newton rightly emphasised that. Obviously, were the position otherwise, the orderly management of the Magistrates Court contemplated by s 10 of the Stipendiary Magistrates Act would become an impossibility. That is why, during the oral submissions, I invited Ms Holmes to focus on the question whether the making of the decision amounted to “an improper exercise of the power” (s 20(2)(e) Judicial Review Act), such that it could not reasonably have been made (s 23(g)).
I should say that without going through the points one by one, I was not persuaded that the Chief Magistrate took irrelevant considerations into account, or such as would invalidate the decision; or that his failure to consult further with Ms Payne or other magistrates, as contemplated by s 10(2) of the Stipendiary Magistrates Act, meant that he had not followed the “procedures ... required by law”, within the meaning of s 21(2)(b) of the Judicial Review Act, or denied her natural justice, as referred to in sub-s (2)(a). It fell very much within the Chief Magistrate’s administrative discretion to decide how much consultation, being practicable, was “appropriate” (s 10(2)), and I do not consider his approach susceptible of challenge on that account.
The issue remains, however, whether the Chief Magistrate could on any reasonable basis have determined that Ms Payne, with her particular domestic and family responsibilities, should be required, within about a month of her appointment, to leave her home town Brisbane and take up residence on an apparently longer term basis in Townsville. There is no doubt that the Chief Magistrate could require Ms Payne to serve in Townsville. If it matters, she is to be taken as having accepted the appointment knowing that she might be required to serve anywhere in the State. The issue is, however, whether, with her particular - and to this stage for a Magistrate, unusual personal circumstances, she could reasonably have been required to move to Townsville so comparatively soon after her appointment, an appointment of which she had no prior substantial notice. Looking objectively at that decision, is it “so devoid of any plausible justification that no reasonable (person) could have reached” it? (Compare Bromley London Borough Council v. Greater London Council [1983] 1 A.C. 768, 821; Prasad v. Minister for Immigration and Ethnic Affairs (1985) 65 A.L.R. 549, 561).
I have reached the conclusion that to require Ms Payne to sit in Townsville, as from about a month after her appointment, was a decision which could not reasonably have been made (s 23(g) Judicial Review Act). It therefore involved “an improper exercise of power” (s 20(2)(e)), and should be set aside, and in consequence, so should the second and third determinations challenged on this application.
I take this view because the circumstances relevant to Ms Payne’s five children, she being their primary carer, in this particular case “overwhelmed” the other aggregation of relevant circumstances which influenced the Chief Magistrate, to the point where the circumstances relating to her children necessarily excluded, as plainly unreasonable, any requirement that she move to Townsville so comparatively soon after her appointment. The Chief Magistrate was obliged to recognise that his new magistrate came to the court with particular personal responsibilities which should be expected to endure. As I have said, to this stage in the history of the court, those responsibilities, being tied to the Magistrate as the primary care giver, would appear to be unusually substantial. They have a significance which would apply equally were the Magistrate, as primary care giver, a male, an aspect to which I will briefly return. Of course Ms Payne must be required to carry out a full workload. Of course she must contemplate the possibility that she may properly be required to serve outside Brisbane. But if the proper consideration of her particularly substantial family responsibilities reasonably necessitates her being given, say, some months in Brisbane, before removing her children with her to Townsville, some months in which she can terminate current arrangements here and establish the necessary new arrangements there, then she must first be allowed that period in Brisbane. This will presumably necessitate some rearrangement in the disposition of other magistrates. But there is no indication in the material that securing that, although it may be difficult, will be impossible. I repeat that had the new magistrate been a male, separated from his spouse, a male with primary responsibility for the day-to-day care of a number of children, similarly to Ms Payne, then one would properly approach the matter in a similar way.
This should clearly be understood. As the matter was presented to me, Ms Payne must be prepared to sit in Townsville, if the Chief Magistrate so directs, the only issue being when. Her maternal responsibilities and consequently the interests of her children, bear potentially very importantly on that issue of timing, but they cannot warrant the indefinite deferment of her serving - like other magistrates - out of Brisbane. Many other different considerations may also bear on determining where a magistrate might have to sit. In some cases, even serious and exceptional maternal responsibilities like these may not justify any substantial period of serving in a newly appointed magistrate’s home town before being moved. It is also right to say, as Williams J observed in Black, supra, that “it is necessary, in the interests of the administration of justice in the Magistrates Courts, for the Chief Stipendiary Magistrate to have a wide discretion as to when and where particular magistrates should be transferred”. That observation applies equally to the place of initial serving.
But in this particular case, the material does not suggest any other particular, cogent reason why, in light of the family considerations to which I have referred, at least some months must not have been allowed to Ms Payne before her being required to move. I say “must” because this process was not in this court in the end a question of weighing considerations, and therefore should not be characterised as having involved a review “on the merits” - such as this court may not conduct under this legislation. None of the other relevant considerations being of predominant significance, this extremely weighty consideration did, as I have said elsewhere, “overwhelm” the others and, on any reasonable view, compelled the conclusion that Ms Payne must before moving have been allowed a period substantially in excess of a month to rearrange affairs with relation to the interests of her five young children. And that does not detract from the promotion of the overall objective of the orderly management of the court. That objective would ordinarily be thwarted by the natural preoccupation of a magistrate in these circumstances, while supposedly advancing the interests of justice through dealing with matters in court, with being necessarily burdened at the same time by the critically important need to fix up unresolved arrangements relating to the settling in of her children to a new environment following a hasty extraction from their old one.
I should in fairness to the Chief Magistrate record my own assessment that he approached this difficult matter in a conscientious and careful way, the process being flawed only, albeit importantly, through his failure to pay appropriate regard to Ms Payne’s maternal responsibilities and, as part of that, the position of her five young children. The case has attracted a lot of public attention. I have of course determined it only on the evidence given before me. I will however mention having read, in the newspaper, of a suggestion that the Chief Magistrate may possibly have been influenced against Ms Payne by her being a woman, and of Aboriginal descent. What follows is perfectly clear: the evidence before this court suggested not the merest ground for thinking that the Chief Magistrate may have been influenced in any such improper way.
There was a suggestion during the hearing that Ms Payne may be equivocal as to serving in Townsville, at any time. On my questioning Ms Holmes, counsel confirmed that the issue was only one of timing. Following my request at the directions hearing that the parties conscientiously seek to resolve the matter between themselves, the solicitors for the Chief Magistrate on 2nd June 1999 requested Ms Payne to nominate a time when she would practicably be able to commence at Townsville, if she differed from their suggestion, which was that she might consider taking up the appointment in Townsville from the commencement of the second school term, 5 July 1999. Although in her direct communications with the Chief Magistrate, Ms Payne had suggested the end of this year as a suitable time for her commencement in Townsville, she (through her solicitors) in response to the Chief Magistrate’s request as part of that process of negotiation, while describing commencement on 5 July as “unrealistic”, declined to nominate any alternate time for her commencement in Townsville. This not surprisingly fuelled a concern that she was perhaps coyly declining to say anything which might subsequently be seen as involving a concession of an obligation to sit out of Brisbane. I was therefore reassured at the hearing when her counsel acknowledged, in effect, that Ms Payne herself acknowledged that potential obligation. It is however unfortunate that she did not, responsively to the Chief Magistrate’s reasonable approach, nominate an alternative time, because had she done so, that may possibly have led to a resolution of the matter which, in the public interest, would have been far preferable to this very public compulsory adjudication. This aspect of the matter may become relevant to any disposition of the costs of the application.
I order that the following decisions of the respondent be set aside:
that the applicant sit as a Stipendiary Magistrate at Townsville from Friday 7 May 1999;
that the applicant not be allocated work in the Magistrates Court at Brisbane;
that the applicant be disciplined by way of reprimand.
I remit to the respondent for further consideration, according to law, the determination of the place at which the applicant is to constitute a Magistrates Court and the allocation of work to her.
I will hear submissions on the question of costs, if the parties wish.
IN THE SUPREME COURT
OF QUEENSLAND
No. 4877 of 1999
Brisbane
Before Chief Justice P. de Jersey
[Payne v. Deer]
BETWEEN:
JACQUELINE VERONICA PAYNE
Applicant
AND:
STANLEY JAMES DEER
Respondent
de Jersey CJ
Judgment delivered 11 June 1999
ORDERS
THE FOLLOWING DECISIONS OF THE RESPONDENT ARE SET ASIDE:
THAT THE APPLICANT SIT AS A STIPENDIARY MAGISTRATE AT TOWNSVILLE FROM FRIDAY 7 MAY 1999;
THAT THE APPLICANT NOT BE ALLOCATED WORK IN THE MAGISTRATES COURT AT BRISBANE;
THAT THE APPLICANT BE DISCIPLINED BY WAY OF REPRIMAND.
REMIT TO THE RESPONDENT FOR FURTHER CONSIDERATION, ACCORDING TO LAW, THE DETERMINATION OF THE PLACE AT WHICH THE APPLICANT IS TO CONSTITUTE A MAGISTRATES COURT AND THE ALLOCATION OF WORK TO HER.
CATCHWORDS: ADMINISTRATIVE LAW - JUDICIAL REVIEW - whether improper exercise of power warranting judicial review of respondent's decisions under Judicial Review Act 1991 - whether the respondent exercised the power so unreasonably "that no reasonable person could so exercise the power" pursuant to s.23(g) Judicial Review Act - applicant appointed Stipendiary Magistrate - respondent, Chief Stipendiary Magistrate, directed applicant to sit in Townsville within one month and one week of her appointment - applicant primary carer of 5 children - applicant refused to follow direction of respondent and was disciplined by way of reprimand.
Judicial Review Act 1991 ss 20(2)(e), 21(2), 23
Stipendiary Magistrates Act 1991 s 10
Attorney General (NSW) v. Quin (1990) 170 CLR 1
Black v. Deer (Supreme Court of Queensland, No.20 of 1995, unreported 27/11/95)
Bromley London Borough Council v. Greater London Council [1983] 1 AC 768
Prasad v. Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549
Counsel:Ms C.E. Holmes, with Mr P. Callaghan for the applicant.
Mr G. Newton for the respondent.
Solicitors:Boe and Callaghan for the appellant.
McCullough Robertson for the respondent.
Hearing Date: 4 June 1999
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