TRKJ v Director of Public Prosecutions (Qld); Kay v Director of Public Prosecutions (Qld)

In the case of TRKJ v Director of Public Prosecutions (Qld); Kay v Director of Public Prosecutions (Qld), the applicants sought leave under Section 14H of the Evidence Act 1977 (Qld) to subpoena, produce, inspect, copy, and use protected counselling communications. The applicants argued that the judge had failed to inspect the relevant documents when deciding whether to grant leave, and questioned whether an implied power exists for the court to inspect the documents when deciding an application for leave. The applicants also argued that the failure to inspect the documents amounted to a constructive failure to exercise jurisdiction, a misapprehension of power, or was otherwise a jurisdictional error.

The court considered the arguments and concluded that an implied power does indeed exist for the court to inspect the documents when deciding an application for leave. The court noted that Section 14M of the Act confers an express power on the court to consider a document or evidence to decide whether it is a protected counselling communication, and that this provision does not preclude the court from reviewing the material in the determination of an application for leave. The court also noted that the scope of Section 14H(2)(h) of the Act is wide enough to permit consideration of the material that is the subject of the application for leave.

The court dismissed the application and found that the judge did not err in failing to inspect the documents when deciding whether to grant leave. The court concluded that the existence of an implied power to consider and inspect documents for the purpose of determining an application for leave was not displaced by the provisions of Section 14M of the Act. The court also found that the failure to inspect the documents did not amount to a constructive failure to exercise jurisdiction, a misapprehension of power, or was otherwise a jurisdictional error.