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  • Unreported Judgment

Ward v Brown

 

[2007] QSC 21

 

SUPREME COURT OF QUEENSLAND

  

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

16 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2007

JUDGE:

Mackenzie J

ORDER:

Application dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – GENERALLY – where applicant incarcerated – where applicant sought reasons for decision not to release psychologists’ reports – whether the memorandum conveying the decision was a “decision made under an enactment” for the purposes of the Judicial Review Act 1991 (Qld)

Judicial Review Act 1991 (Qld) s 4, s 32(1), s 34

Griffith University v Tang (2005) 221 CLR 99, applied

Hockey v Yelland (1984) 157 CLR 124, cited

Public Service Board (NSW) v Osmond (1986) 159 CLR 656, cited

COUNSEL:

Applicant in person

M D Plunkett for the respondent

SOLICITORS:

Applicant in person

Crown Solicitor for the respondent

[1] MACKENZIE J:  This is an application for an order that the respondent provide reasons under s 32(1) of the Judicial Review Act 1991 in relation to a request for certain information principally concerning examinations of the applicant by psychologists.

 

[2] There seems to be a long history in that the application has been generated by a request for certain information that the applicant wishes to use for the purposes of advancing another application (against a different office holder) for judicial review.  That was commenced on 20 January 2006 with the objective of requiring the expunging of allegedly inaccurate and misleading material from files held by the Department of Corrective Services about the applicant. 

 

[3] At an early stage of that application, the Chief Justice made an order for the respondent office holder to that application to supply documents to the FOI manager of the Department to allow a decision to be made expeditiously about release of the documents under the Freedom of Information Act 1992.  Problems were discerned about the form of the FOI application and a request for reasons for refusing to supply the information was made by the applicant.

 

[4] On 1 August 2006, the General Manager, Wolston Correctional Centre, who is the respondent to the present application, sent a memorandum to the applicant, the relevant portions of which are:

 

“By letter dated 18 April 2006 you sought a list of the “details of interviews or assessments, the purpose of such interviews or assessments and the name of the psychologist or counselor (sic) conducting such interviews or assessments from 18 June 1999 to 25 February 2002. 

 

You say the purpose is for the preparation of subpoena and argument for a matter currently before the Court in respect to the continued use by both the Department and particularly this centre of inaccurate material and misrepresentation of fact in the preparation of reports.”

 

[5] After reciting the terms of the Chief Justice’s order, the letter continued:

 

“I am aware that each of those documents was provided to the Manager, Freedom of Information, Department of Corrective Services who wrote to you on 15 March 2006.  In his letter the Manager set out what he perceived were your allegations concerning the alleged inaccuracies with respect to the SOTPWS, the Sinclair statement and the Sky statement.  You were asked to confirm that those represented a summary of your concerns. 

 

Your request for information is beyond the scope of what was before the Court and what was referred to the Freedom of Information manager.  It seems you are embarking on a wide ranging fishing expedition.  The terms of your request would include any interviews you have had with any counselor (sic) or psychologist over about three (3) years.

 

Over the period of your incarceration you can only be described as a prodigious writer of letters.  Centre files relating to you are voluminous because of this.  Although you say in your letter of 30 April 2006 that all you sought was dates, names and purpose, it is clear that you are in fact seeking copies of all documentation.  Yet you also acknowledge that reference to possibly two interviews is all that is necessary for Mr Thomas’ purposes.

 

The high level of centre resources that would need to be utilized to identify and provide you with the information sought is not justified.  I therefore decline to provide you with the information sought by you in your letter dated 18 April 2006.  A different outcome would be likely if your request were reasonable. 

 

A statement of reasons will not be provided to you as no decision of an administrative character has been made under an enactment by me.”

[6] The applicant responded, saying, inter alia, that the purpose of the request was so that he could isolate relevant documents, taking issue with the assertion that he was on a “fishing expedition” and contesting the assertion that what he had sought was beyond what was before the Court and referred to the FOI manager.  He referred to what he perceived to be a climate of obstruction and to representations made to Official Visitors.  He also suggested that reliance on the resource implications involved in his application was wrong. 

 

[7] The applicant produced an email from the Chief Inspector, Department of Corrective Services, describing the applicant’s position as a “Catch 22” situation in that he had been told that the documents could not be provided because of the lack of particularity in his application, when no one would tell him the dates of reports to enable him to select those he wanted.  Associated intra-departmental emails also produced by the applicant show reluctance of the Wolston Correctional Centre staff to trawl through the files to identify documents and resistance at FOI level to providing a list.  This resulted in the Chief Inspector being critical of the stance taken.  The letter which is the subject of the present application post-dates the Chief Inspector’s observations by about two weeks. 

 

[8] The administrative course that the matter has taken and the irritable atmosphere it has not surprisingly caused is a diversion from the point in issue.  The issue is whether there is an obligation to give reasons (assuming the letter of 1 August 2006 does not itself constitute sufficient reasons). 

 

[9] Section 32(1) of the Judicial Review Act is as follows:

 

“(1)If a person makes a decision to which this part 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.”

 

[10] Section 34 provides that the statement must include the reasons for the decision.  Section 4 defines “decision to which this Act applies” as a “decision of an administrative character made…under an enactment…”.

 

[11] The applicant submitted that the information conveyed in the letter of 1 August 2006 was a “decision made under an enactment”.  The decision, it was said, had been made in exercise of the General Manager’s management powers under the Corrective Services Act and that therefore it was properly described as a “decision made under an enactment”. 

 

[12] The respondent submitted that there was nothing in the Correctives Services Acts 2000 or 2006 or the Freedom of Information Act 1992 or any other statute that required the General Manager to provide the information sought.  A public officer has no general duty at common law to give reasons for a decision (Hockey v Yelland (1984) 157 CLR 124; Public Service Board (NSW) v Osmond (1986) 159 CLR 656). 

 

[13] In Griffith University v Tang (2005) 221 CLR 99 the majority in the High Court said that the determination of whether a decision is “made under an enactment” involves two criteria.  The first is that the decision must be expressly or impliedly required or authorised by the enactment.  Secondly the decision must itself confer, alter or otherwise affect existing or new legal rights or obligations derived from the general law or statute.  It is a necessary conclusion from that statement of principle that the letter of 1 August 2006 does not have the character of a decision made under an enactment.  The application is therefore dismissed. 

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Editorial Notes

  • Published Case Name:

    Ward v Brown

  • Shortened Case Name:

    Ward v Brown

  • MNC:

    [2007] QSC 21

  • Court:

    QSC

  • Judge(s):

    Mackenzie J

  • Date:

    16 Feb 2007

Litigation History

No Litigation History

Appeal Status

No Status