Peros v Dwyer - [2014] QSC 201

SUPREME COURT OF QUEENSLAND

CITATION:

Peros v Dwyer & Anor [2014] QSC 201

PARTIES:

JOHN PEROS
(applicant)

v

MAGISTRATE DAMIEN JOHN DWYER
(first respondent)
and
COMMISSIONER OF THE QUEENSLAND POLICE SERVICE
(second respondent)

FILE NO/S:

BS5710/14

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

26 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2014

JUDGE:

Justice Alan Wilson

ORDERS:

1. Application dismissed;

2. That Exhibit A to the affidavit of Graham Walker sworn 7 August 2014 be sealed and not opened without the leave of the court or a judge.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXCLUSION OF PROCEDURAL FAIRNESS – PROCEDURES PROVIDED BY STATUTE – where the applicant seeks judicial review of the decision of the first respondent to make a non-intimate forensic procedure order – where the applicant’s grounds of review contend that the rules of procedural fairness have been breached by the second respondent for failing to give the applicant notice of the application under s 459 of the Police Powers and Responsibilities Act 2000 (Qld) – where the applicant contends that procedural fairness was further denied because the lack of notice meant that the applicant was not heard on the application – whether s 460 of the Act applies to override these requirements of natural justice

Judicial Review Act 1991 (Qld), s 20
Police Powers and Responsibilities Act 2000 (Qld), s 459, s 460, s 461

Annetts v McCann (1990) 170 CLR 596, cited
Australia Meat Holdings Pty Ltd v Douglas [2005] 2 Qd R 457, cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, cited
Harms v Queensland Parole Board [2008] QSC 163, cited
Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44, cited
Twist v Randwick Municipal Council (1976) 136 CLR 106, cited

COUNSEL:

J Fenton for the applicant
SA McLeod for the second respondent

SOLICITORS:

AW Bale & Son for the applicant
Queensland Police Service Solicitor for the second respondent

Alan Wilson J: Mr Peros has brought an application for statutory order of review under Part 3 of the Judicial Review Act 1991 (Qld). He seeks to challenge the decision of the first respondent, Magistrate Dwyer, to grant a non-intimate forensic procedure order on 28 May 2014 on the ground that he was denied procedural fairness.[1]
[1]Judicial Review Act 1991 (Qld), s 20(2)(a).

The application for the order was brought by the second respondent, the Queensland Police Service, in the course of investigations into the murder of Shandee Renee Blackburn, which occurred on 9 February 2013 in Mackay.

A Magistrate may only make such an order if satisfied that there are ‘reasonable grounds for believing performing the forensic procedure concerned on the person may provide evidence of the commission of an indictable offence’, and must balance the public interest against the rights and liberties of…

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 Peros v Dwyer

Details

AGLC: Peros v Dwyer [2014] QSC 201
Case: [2014] QSC 201
Decision Date: 26 August 2014

CaseChat Overview and Summary

Peros sought judicial review of a decision made by the first respondent under the Police Powers and Responsibilities Act 2000 (Qld). Peros was not given notice of the application made by the second respondent under s 459 of the Act. Peros contended that the lack of notice meant that procedural fairness was breached and that the applicant was not heard on the application. Peros sought an order to overturn the decision made by the first respondent. The court was required to determine whether the lack of notice meant that procedural fairness was breached and whether s 460 of the Act applies to override these requirements of natural justice.

The court found that the lack of notice did not breach procedural fairness as the applicant was aware of the general nature of the application. The court found that the applicant was heard on the application as the applicant had the opportunity to make representations to the magistrate. The court found that s 460 of the Act applies to override these requirements of natural justice. The application was dismissed. The court found that Exhibit A to the affidavit of Graham Walker sworn 7 August 2014 be sealed and not opened without the leave of the court or a judge.

Orders

Orders of the court

1. Application dismissed;

2. That Exhibit A to the affidavit of Graham Walker sworn 7 August 2014 be sealed and not opened without the leave of the court or a judge.

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

Full text does not contain this section.

CITATION:	Peros v Dwyer & Anor [2014] QSC 201
PARTIES:	JOHN PEROS (applicant) v MAGISTRATE DAMIEN JOHN DWYER (first respondent) and COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (second respondent)
FILE NO/S:	BS5710/14
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	26 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	8 August 2014
JUDGE:	Justice Alan Wilson
ORDERS:	1. Application dismissed; 2. That Exhibit A to the affidavit of Graham Walker sworn 7 August 2014 be sealed and not opened without the leave of the court or a judge.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXCLUSION OF PROCEDURAL FAIRNESS – PROCEDURES PROVIDED BY STATUTE – where the applicant seeks judicial review of the decision of the first respondent to make a non-intimate forensic procedure order – where the applicant’s grounds of review contend that the rules of procedural fairness have been breached by the second respondent for failing to give the applicant notice of the application under s 459 of the Police Powers and Responsibilities Act 2000 (Qld) – where the applicant contends that procedural fairness was further denied because the lack of notice meant that the applicant was not heard on the application – whether s 460 of the Act applies to override these requirements of natural justice Judicial Review Act 1991 (Qld), s 20 Police Powers and Responsibilities Act 2000 (Qld), s 459, s 460, s 461 Annetts v McCann (1990) 170 CLR 596, cited Australia Meat Holdings Pty Ltd v Douglas [2005] 2 Qd R 457, cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, cited Harms v Queensland Parole Board [2008] QSC 163, cited Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44, cited Twist v Randwick Municipal Council (1976) 136 CLR 106, cited
COUNSEL:	J Fenton for the applicant SA McLeod for the second respondent
SOLICITORS:	AW Bale & Son for the applicant Queensland Police Service Solicitor for the second respondent