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Bowyer v de Jersey

 

[2018] QCA 56

COURT OF APPEAL

SOFRONOFF P

Appeal No 2201 of 2018

SC No 9899 of 2017

ROBERT ANTHONY BOWYER

Applicant

v

HIS EXCELLENCY THE HONOURABLE

 

PAUL DE JERSEY AC

 

GOVERNOR OF QUEENSLAND

First Respondent

THE HONOURABLE YVETTE D’ATH

 

AS ATTORNEY-GENERAL AND MINISTER

 

FOR JUSTICE FOR THE STATE OF QUEENSLAND

Second Respondent

BRISBANE

WEDNESDAY, 28 MARCH 2018

JUDGMENT

SOFRONOFF P:  This is an application for an extension of time within which to appeal.  The respondents are his Excellency the Governor of Queensland and the Attorney-General of Queensland.  The applicant accepts that the Governor ought to be struck out as a party but, in the result, it is not necessary to take that step.  An extension of time is needed because the order from which an appeal would be brought was pronounced on 15 November 2017 and no appeal was filed within the time allowed by the rules.  The applicant has explained that the delay was caused by his inability, through no fault of his own, to obtain a transcript of the proceedings at first instance and, it seems, a copy of the learned trial judge’s reasons.

He has therefore satisfactorily explained his delay.  However, an application for an extension of time requires an applicant to do two things: the first is to explain the delay.  The second is to show that an appeal would have some prospect of success.  The application for extension of time itself specifies no grounds for why an extension should be granted.  That is a minor point because the applicant has filed an outline of argument.  It’s sufficient in order to explain the nature of the appeal that would be brought to refer to the first paragraph of that outline which is, itself, broken up into four subparagraphs.  The paragraph provides as follows:

“The current academic paradigm is that the Queensland Constitution Act 1867 is uncontrolled with the Queensland Parliament holding an innate sovereign power of amendment.  As referenced to by the respondents, constitutional Professor Gerard Carney quoted this section of the Lord Chancellor Birkenhead’s findings in the case, McCawley v The King [1920] AC 691;  28 CLR 106 UKPC.

(Lord Birkenhead) ‘The legislature of Queensland is the master of its own household, except as so far as its powers have in special cases been restricted”.

Professor Carney makes the supposition that the ‘special case’ wasn’t anything to do with the Queensland Constitution Act 1867 on which his Lordship was deliberating.

(Carney G.) ‘However the basis for that restriction was not stated in McCawley’s case but the most obvious basis would have been the proviso to Section 5 of the Colonial Laws Validity Act’.

The Lord Chancellor Birkenhead did actually go on to unequivocally state the special restriction which was placed in Section 9 of the Queensland Constitution Act 1867.

(Lord Birkenhead) “The next section which requires examination is Section 9 which required a two-thirds majority of the Legislative Council and of the Legislative Assembly precedent of validity of legislation altering the constitution of the Legislative Council.  We (full bench Privy Council) observe, therefore, the Legislature in this isolated section carefully selecting one special and individual case in which limitations are imposed upon the power of the Parliament of Queensland to express and carry out its purpose in the ordinary way by a bare-majority”.

The necessity for Judicial Review legal opinion is to remove the ambiguity that exists between Professor Carney et al academic conjecture, and the actual reference by Lord Birkenhead.  This will provide legal certainty that the Legislative Council was either lawfully abolished or otherwise and only then could the people begin the fight for the just return of the legislative council and constitutionally compliant elections.”

This morning Mr Bowyer handed up an outline of oral submissions in which he has set out his attempt to vindicate what he has seen as the negligent operation of a dam operated by the Queensland Mines Department.  He has taken various steps to attempt to interest the State’s politicians in the issue but with no success.  He now seeks to proceed in this Court by way of appeal from the decision of Lyons SJA dismissing his application for judicial review.  At the heart of that application for judicial review, as Mr Bowyer explained this morning, was the validity of the writs which the Governor issued for the election that was held recently.  The question that would arise as a collateral question in such a review was whether those writs should have made provision for elections to the Legislative Council.  That issue would raise for consideration by the court whether the Legislative Council had been validly abolished when that happened early in the last century.

The validity of the writs and the grounds for attacking them, which I have sought to explain, do not reveal any ground of appeal that could possibly succeed.  The draft notice of appeal sets out the proposed grounds as following:

“1. The Judge made orders that were not based on the allegations made in the application and a disclaimer to such was presented in Document 3.

2. There are errors are in law.

3. The judge did not read all of the document relied upon as evidence.

5. The Privy Council in the Ranasinghe 1964 case, setting paramount precedence, was not cited be Her Honour.

6. Natural justice has been denied by the introduction of political bias”

The last of these grounds is in its present form a ground that might be valid, however, there is nothing in the material on the application for an extension of time which supports it.  The other grounds do not raise any arguments that have any legal meaning.  They are, in a legal sense, incoherent and incompetent.

For these reasons, the appeal that the applicant would wish to institute if an extension of time were granted would have no prospects of success and for that reason the application for an extension of time is dismissed.

Anything further?

MR KEYES:  No, your Honour.  The respondents seek no costs for this application.

SOFRONOFF P:  Adjourn the Court.

Close

Editorial Notes

  • Published Case Name:

    Bowyer v De Jersey

  • Shortened Case Name:

    Bowyer v de Jersey

  • MNC:

    [2018] QCA 56

  • Court:

    QCA

  • Judge(s):

    Sofronoff P

  • Date:

    28 Mar 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment SC9899/17 (No Citation) 15 Nov 2017 Application for judicial review dismissed: Lyons SJA.
Notice of Appeal Filed File Number: Appeal 2201/18 28 Feb 2018 -
Appeal Determined (QCA) [2018] QCA 56 28 Mar 2018 Application for extension of time refused: Sofronoff P.

Appeal Status

{solid} Appeal Determined (QCA)