Scott v. Pham

[2007] QSC 7

SUPREME COURT OF QUEENSLAND

[2007] QSC 007

CIVIL JURISDICTION

BYRNE J

No BS11170 of 2006

NICHOLAS ALEXANDER SCOTT	Applicant
and
DR SEAN PHAM OF THE ARTHUR GORRIE CORRECTIONAL CENTRE	Respondent

BRISBANE

..DATE 12/01/2007

ORDER

HIS HONOUR: The applicant is a prisoner. He has applied for an order (presumably pursuant to section 38 of the Judicial Review Act 1991) seeking a statement of the respondent's reasons for declining to refer the applicant to a named specialist medical practitioner.

The respondent is a doctor who has been appointed under section 283 of the Corrective Services Act 2006 by the Chief Executive of the Department of Corrective Services for the prison at which the applicant is detained.

The matter came before the Court recently for directions when Ms Heyworth-Smith for the respondent foreshadowed an intention to bring an application to dismiss the applicant's application on the footing that it was inevitably doomed to failure.  Such an application has been brought today.  The first question is whether it ought to succeed. 

There will be no obligation on the part of the respondent to provide reasons unless a number of criteria are satisfied. These include, by reason of the combined operation of sections 32 and 4 of the Judicial Review Act, that the respondent's decision to decline to give the referral was a decision of an administrative character made under an enactment.

For the purposes of her application today seeking to have the principal application of the applicant summarily terminated, Ms Heyworth-Smith is content to accept that the decision by the respondent to decline to refer the applicant to the named specialist was a "decision" within the meaning of section 4 of the Judicial Review Act, and more than that: a decision "of an administrative character" also.

It is contended for the respondent, however, that the decision cannot be said to have been made "under an enactment" within the meaning of that expression in section 4.

Three statutory provisions have been pointed to by the applicant in his attempt to show that there is at least an arguable case that the respondent's refusal to provide the referral was a decision "made under an enactment". He relies on sections 3, 266 and 284 of the Corrective Services Act.

Section 3 states, and in very general ways, the purpose of corrective services. And Subsection 2 records that the Act "recognises that every member of society has certain basic human entitlements, and that, for this reason, an offender's entitlements, other than those that are necessarily diminished because of imprisonment ... should be safeguarded." That is one of the provisions upon which the applicant relies.

Section 266 deals with an obligation on the part of the Chief Executive of the Department of Corrective Services to establish programs or services. These obligations include (see subsection 1(a)) programs or services for the medical welfare of prisoners.

Section 284 deals with the functions of a medical practitioner appointed as the respondent has been under section 283. Section 284 provides:

"A doctor appointed under section 283 must -

(a)  examine and treat prisoners at the prison for which
     the doctor is appointed; and

(b)  establish a record of the examinations carried out
     and treatment given by the doctor, or at the
     doctor's direction, to prisoners at the prison for
     which the doctor is appointed; and

(c)  report and make recommendations to the chief
     executive about a prisoner's medical condition when
     required to do so by the chief executive; and

(d)  perform any other function the doctor is required

by the chief executive to perform but that the doctor is qualified to perform."

In Griffiths University v Tang (2005) 221 CLR 99, Gummow, Callinan & Heydon JJ said at paragraph 89:

"The determination of whether a decision is "made ... under an enactment" involves two criteria:  first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.  A decision will only be "made ... under an enactment" if both these criteria are met.  It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise.  Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question.  Affection of rights or obligations derived from the general law or a statute will suffice."

None of the three statutory provisions relied on is sufficient to establish that the pertinent decision not to refer the applicant to the specialist practitioner of his choice was "made ... under an enactment". 

That decision was neither required nor authorised by any of the provisions of the Corrective Services Act relied on.

Section 3 is not the source of any relevant burden or authority. It is very generally expressed and identifies objectives sought to be achieved by corrective services.

The reference to safeguarding entitlements cannot be regarded as establishing, either expressly or impliedly, a requirement or authority to bring into existence the kind of referral to a medical practitioner sought. Much the same is true of section 266. It is concerned with the obligation of the Chief Executive to establish programs or services and says nothing about the function of a medical practitioner in treating a prisoner patient.

Section 284 is more explicit, but none of the subsections which specify the functions of a doctor appointed for the section 283 has any bearing on the decision to decline to provide the referral. Such a decision is not concerned with examination or treatment of prisoners at the prison. It is not concerned with establishing a record of examinations carried out. It is not connected with reports to the Chief Executive. And, there being no evidence that the Chief Executive required the respondent to perform any function in relation to referrals, subsection (d) has no possible application either.

No other statutory provision or material was referred to by the applicant to suggest that the absence of a referral to the medical practitioner conferred, altered or otherwise affected the legal rights or obligations of anyone.  

In the result, therefore, neither of the two criteria, both of which are required to be established before a "decision" is "made...under an enactment", is satisfied.

The applicant's application therefore has no prospect of success and ought to be summarily terminated.

...

HIS HONOUR:  The two conditions have been satisfied:  there has been a complete lack of success and, on the face of the application, no reasonable basis was shown for it.  There will therefore be an order as per draft.

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