Serratore v Director-General Djag - [2013] QSC 328

SUPREME COURT OF QUEENSLAND

CITATION:

Serratore v Director-General DJAG [2013] QSC 328

PARTIES:

CARMELA SERRATORE
(applicant)

v

DIRECTOR-GENERAL THE DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(respondent)

FILE NO/S:

BS 8505 of 2013

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

29 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2013

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. The application is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – GENERALLY – where the respondent made a finding that if the evidence of an allegation were accepted then, on the balance of probabilities, the allegation may be found to be capable of substantiation – where the respondent recommended not to take further action and no further action was taken – whether decision was made under enactment – whether the decision is reviewable

ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REASONS FOR ADMINISTRATIVE DECISIONS – OBLIGATION TO GIVE REASONS – where the respondent made a recommendation and decision not to take further disciplinary action – whether the respondent should be required as a matter of discretion to provide a written statement in relation to the decision made

Acts Interpretation Act 1954 (Qld), s 27B
Judicial Review Act 1991 (Qld), s 4, s 5, s 6, s 7(1)(b), s 20, s 30, 32, s 34, s 38, s 39, s 187
Public Service Act 2008 (Qld), s 187, s 188, s 188A

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, cited
Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321, cited
Griffith University v Tang[2005] HCA 7; (2005) 221 CLR 99, cited
Henderson v Williams, Delegate of Director-General of the Department of Justice and Attorney-General [2006] QSC 306, cited
Nohna v Ahmat [2012] QCA 346, cited
SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26; (2012) 286 ALR 331, cited

COUNSEL:

R Haddrick for the applicant
K Mellifont QC for the respondent

SOLICITORS:

Hall Payne Lawyers for the applicant
Crown Solicitor for the respondent

JACKSON J: Carmela Serratore applies for an order under s 38 of the Judicial Review Act 1991 (Qld) (“JR Act”) that the respondent Director-General give a written statement of reasons in relation to each of two decisions. Under s 32 of the JR Act “if a person makes a decision to which [Part 4] applies a person who is entitled to make an application to the court under section 20 in relation to the decision may request the person to provide a written statement in relation to the decision”. Under s 34, “the statement must contain the reasons for the decision”.[1] Under s 38(1), if a requestor makes a request under s 32 but the decision maker does not comply with the request or apply to the court for an order under s 39 declaring that the requestor was not entitled to make the request, the requestor may apply to the…

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 Serratore v Director-General Djag

Details

AGLC: Serratore v Director-General DJAG [2013] QSC 328
Case: [2013] QSC 328
Decision Date: 29 November 2013

CaseChat Overview and Summary

The parties in this case are Serratore, the appellant, and the Director-General, the respondent. The dispute pertains to the respondent's decision not to take further disciplinary action against the appellant following an investigation into allegations made against the appellant. The court before which this matter was heard is the Federal Court of Australia.

The legal issues before the court were whether the decision made by the Director-General was reviewable, and if so, whether the Director-General was required to provide a written statement of reasons for the decision. The appellant argued that the decision was made under an enactment and therefore subject to judicial review. The respondent contended that the decision was not made under an enactment and therefore not reviewable. Additionally, the appellant argued that the Director-General was required to provide a written statement of reasons for the decision, while the respondent argued that the provision was discretionary and did not apply in this case.

In its reasoning, the court found that the decision made by the Director-General was not made under an enactment and therefore not reviewable. The court held that the Director-General had discretion to decide whether or not to take disciplinary action, and that this decision was not subject to judicial review. The court also found that the provision requiring the Director-General to provide a written statement of reasons for the decision was discretionary, and that the Director-General was not required to provide such a statement in this case.

The order of the court was that the application was dismissed. The appellant's challenge to the decision made by the Director-General was unsuccessful, and the court found that the decision was not reviewable. Additionally, the court found that the Director-General was not required to provide a written statement of reasons for the decision.

Orders

Orders of the court

The order of the court is that:

1. The application is 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

Full text does not contain this section.

CITATION:	Serratore v Director-General DJAG [2013] QSC 328
PARTIES:	CARMELA SERRATORE (applicant) v DIRECTOR-GENERAL THE DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent)
FILE NO/S:	BS 8505 of 2013
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	29 November 2013
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2013
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. The application is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – GENERALLY – where the respondent made a finding that if the evidence of an allegation were accepted then, on the balance of probabilities, the allegation may be found to be capable of substantiation – where the respondent recommended not to take further action and no further action was taken – whether decision was made under enactment – whether the decision is reviewable ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REASONS FOR ADMINISTRATIVE DECISIONS – OBLIGATION TO GIVE REASONS – where the respondent made a recommendation and decision not to take further disciplinary action – whether the respondent should be required as a matter of discretion to provide a written statement in relation to the decision made Acts Interpretation Act 1954 (Qld), s 27B Judicial Review Act 1991 (Qld), s 4, s 5, s 6, s 7(1)(b), s 20, s 30, 32, s 34, s 38, s 39, s 187 Public Service Act 2008 (Qld), s 187, s 188, s 188A Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, cited Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321, cited Griffith University v Tang[2005] HCA 7; (2005) 221 CLR 99, cited Henderson v Williams, Delegate of Director-General of the Department of Justice and Attorney-General [2006] QSC 306, cited Nohna v Ahmat [2012] QCA 346, cited SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26; (2012) 286 ALR 331, cited
COUNSEL:	R Haddrick for the applicant K Mellifont QC for the respondent
SOLICITORS:	Hall Payne Lawyers for the applicant Crown Solicitor for the respondent