Wells v Carmody

Case [2014] QSC 59

SUPREME COURT OF QUEENSLAND

CITATION:

Wells v Carmody and Anor [2014] QSC 59

PARTIES:

DEAN MACMILLAN WELLS

(Applicant)

v

TIMOTHY FRANCIS CARMODY SC (IN HIS CAPACITY AS THE COMMISSIONER IN THE COMMISSIONS OF INQUIRY ORDER (NO 1) 2012 AND THE COMMISSIONS OF INQUIRY AMENDMENT ORDER (NO 2) 2013)

(First Respondent)

and

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(Second Respondent)

FILE NO/S:

6906 of 2013

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

4 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2014

Applicant’s supplementary submission on 27 February 2014

JUDGE:

Martin J

ORDER:

Application dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – MEANING OF DECISION – REPORTS AND RECOMMENDATIONS – where the applicant was a cabinet minister at a time when cabinet determined that certain documents were to be destroyed – where the first respondent held a Commission of Inquiry and found that the actions of the cabinet were “honest but ill-advised” and “fell short of the relevant standard of appropriateness” – whether the first respondent’s finding was a decision to which the Judicial Review Act 1991 applies

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – BIAS – APPREHENSION OF BIAS – where the first respondent held a Commission of Inquiry and made adverse findings in respect of the applicant – where the first respondent had sought amendments to the terms of reference of the Inquiry in order to make investigations resulting in this adverse finding – where the first respondent had sought submissions, in the course of public hearings, on the weight to be accorded to the evidence of interested parties before him – whether the conduct of the first respondent gave rise to an apprehension of bias

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – HEARING – NOTICE TO PERSONS AFFECTED – where the first respondent held a Commission of Inquiry and made adverse findings in respect of the applicant –where the applicant was given notice that an adverse finding might be made, supplied with relevant evidence, and invited to make written submissions – where the applicant made written submissions in response to the first respondent’s invitation – whether the conduct of the first respondent amounted to a breach of the hearing rule

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the first respondent held a Commission of Inquiry and made adverse findings in respect of the applicant – where the findings had a demonstrable basis in the evidence – whether the findings were so unreasonable that no reasonable decision maker could have made them

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 3(3)
Commissions of Inquiry Act 1950

Judicial Review Act 1991, ss 4, 5(e), 6

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57
Associated Provincial…

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Wells v Carmody [2014] QSC 59
Case
[2014] QSC 59
Decision Date

CaseChat Overview and Summary

In the case of Wells v Carmody, the applicant, a former cabinet minister, sought judicial review of findings made by the first respondent, who conducted a Commission of Inquiry. The inquiry found that the actions of the cabinet, including the decision to destroy certain documents, were "honest but ill-advised" and "fell short of the relevant standard of appropriateness." The applicant argued that the Commission's findings were a reviewable decision under the Judicial Review Act 1991, and that the process leading up to the findings was unfair and unreasonable.

The court had to determine whether the Commission's findings constituted a reviewable decision under the Act, whether the conduct of the Commission gave rise to an apprehension of bias, and whether the process leading up to the findings breached the hearing rule. The court found that the Commission's findings were not a reviewable decision under the Act, as they were not a "decision" in the sense of the Act, but rather a finding of fact. The court also found that there was no apprehension of bias, as the Commission's conduct did not give rise to a reasonable apprehension in the mind of an observer that the Commission might not bring an impartial and unbiased mind to the consideration of the matters to be decided. Finally, the court found that the process leading up to the findings did not breach the hearing rule, as the applicant was given notice that an adverse finding might be made, supplied with relevant evidence, and invited to make written submissions.

As a result of the court's findings, the application for judicial review was dismissed. The court held that the Commission's findings were not a reviewable decision under the Act, and that the process leading up to the findings was fair and reasonable. The applicant's challenge to the Commission's findings was therefore unsuccessful.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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