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  • Unreported Judgment

Ogawa v Briggs

 

[2008] QSC 18

SUPREME COURT OF QUEENSLAND 

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

DELIVERED EX TEMPORE ON:

25 January 2008

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

25 January 2008

JUDGE:

Wilson J

ORDER:

That the application for the statutory orders of review and orders of review and the amended application made by Ms Ogawa in proceeding BS495 of 2008 be dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – PARTICULAR CASES – the applicant sought judicial review of a number of decisions pertaining to legal aid funding for her defence of criminal charges in the District Court: the decision to terminate her aid; the decision of the second respondent confirming that decision; and the subsequent decision to grant aid on conditions – whether the decisions were made under an enactment

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISCRETION NOT TO ENTERTAIN APPLICATION – GENERALLY – the decision to cancel the applicant’s legal aid was made in October 2007 – the application was filed on 17 January 2008 and made returnable on Friday 25 January 2008 – the District Court trial to which the legal aid funding pertained was listed to start on Monday 28 January 2008 – whether the application was frivolous or vexatious – whether the application should be allowed to proceed

Judicial Review Act 1991 (Qld) s 48

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

COUNSEL:

The applicant appeared on her own behalf

D Shepherd for the first, second and fourth respondents

C E Chapman for the third respondent

SOLICITORS:

The applicant appeared on her own behalf

Legal Aid Queensland for the first, second and fourth respondents

C W Lohe, Crown Solicitor for the third respondent

[1] Wilson J:  This is the first return date of an application for judicial review made by Megumi Ogawa.  Ms Ogawa has appeared self-represented by telephone.  English is not her first language.

[2] The application is not supported by affidavit material or full submissions but Ms Ogawa did provide a bundle of documents which have been marked as an exhibit.

[3] She is the defendant in criminal proceedings listed for trial in the District Court next week.  She seeks judicial review of decisions relating to the grant of legal aid for her representation in those proceedings.

[4] Mr Shepherd of counsel appeared for the first, second and fourth respondents who are respectively an internal review officer in the employ of Legal Aid Queensland, an external review officer engaged by Legal Aid Queensland, and the Chief Executive Officer of Legal Aid Queensland.

[5] Ms Chapman appeared for the third respondent who is a District Court Judge who has refused to adjourn the criminal proceedings.  Ms Chapman indicated that her client would abide the order of the Court.

[6] The applicant seeks to review a decision of the fourth respondent made on 23 January 2008 to revoke a decision not to grant aid and to substitute a decision to grand aid on certain conditions.  Further, she seeks to review a decision of the second respondent not to grant aid, and to review a decision of the first respondent in preparing and presenting the brief to the second respondent.  She is seeking statutory orders of review and prerogative orders.

[7] There is a cross-application by the first, second and fourth respondents to stay or dismiss the application pursuant to s 48 and/or Part 1, Division 3 of the Judicial Review Act 1991 (Qld).

[8] The history of the matter, briefly, is that aid was granted to the applicant.  She transferred solicitors several times.  The last solicitors who were acting for her were Boe Lawyers.  Legal Aid had agreed to the transfer of the file to Boe Solicitors on condition that, if Ms Ogawa failed to accept the advice of her legal representative, her grant of aid would be terminated and there would be no further transfers of her case.

[9] On 23 August 2007 Boe Lawyers sent a facsimile to Legal Aid Queensland advising that Ms Ogawa had “indicated that she was no longer prepared to instruct [them] to act for her”, and that they had sought and had been granted leave to withdraw from the District Court.  They advised that Ms Ogawa had “indicated to the Court that she was attempting to obtain funding for legal representation through the Department of Education” and asked that her matter be adjourned.  They further advised that a District Court Judge had listed the matter for trial as number one hearing in the week commencing 28 January 2008.

[10] On 9 October 2007 Legal Aid wrote to Ms Ogawa saying as follows:

 

“We regret to advise that legal aid has been refused in relation to Crime Other.

 

Legal aid has been refused for the following reasons:

 

We advise that your grant of legal aid is now cancelled as this office has been informed that you have not complied with the conditions of your grant of legal aid namely:

 

You were advised that this office will no longer approve for a transfer of solicitors, therefore your grant of aid has now been terminated.

 

You have a right to appeal to an External Review Officer.”

[11] The letter went on to advise how that right might be exercised.

[12] There was a review by an external review officer, namely, the second respondent.  He confirmed the decision to cancel the aid on 11 January 2008.

[13] On 23 January 2008 the fourth respondent determined to grant aid subject to certain conditions.  Some of those conditions are acceptable to Ms Ogawa and some are not.

[14] Mr Shepherd, who appeared on behalf of the first, second and fourth respondents, submitted that the decision of 23 January 2008 made the earlier decisions otiose.  I do not accept this.  If they were reviewable, strictly they remain so. 

[15] Mr Shepherd went on to submit, in reliance on the decision of the High Court in Griffith University v Tang[1] that, while a decision to grant or refuse aid is one made under an enactment, once aid has been granted subject to conditions those conditions govern the relationship between Legal Aid and the legally assisted person and the decision to cancel the aid is one made under the terms of that relationship rather than under an enactment. This leads to the conclusion that a statutory order of review would not be available in relation to the decision to cancel the aid.  I accept that submission as being correct.

[16] Mr Shepherd conceded that the decision of 23 January is one under an enactment.

[17] But of course Ms Ogawa has sought not only a statutory order of review but also orders prerogative in nature.  Under s 48 of the Judicial Review Act the Court may stay or dismiss an application for a statutory order of review or an application for a prerogative order if it considers it would be inappropriate for the proceedings to be continued or to grant the application, or if no reasonable basis for the application or claim is disclosed, or if the application or claim is frivolous or vexatious, or if the application or claim is an abuse of the process of the Court.

[18] With respect to the decision to cancel the aid and insofar as there is an application for prerogative orders, Mr Shepherd submitted that I should dismiss the application pursuant to s 48 because, in all the circumstances, it is inappropriate and frivolous and vexatious.  He submitted that the whole purpose of the applications is to achieve a delisting of the criminal trial in the District Court and that the claims made against the first and second and also the fourth respondents are simply ancillary to that purpose.  He said in his written submissions:

 

“If she wanted legal assistance in her District Court trial she had it.”

[19] I have considered the history of the grant of aid and the transfer of the file to a number of solicitors as set out in the affidavit of Ms Wilkinson.  I have also considered the condition which was placed upon the final transfer to Boe Lawyers.  I have come to the conclusion that, in light of that history, an inference can and should be drawn that the purpose of this application is to interfere with the listing in the District Court and that, accordingly, it is frivolous and vexatious and it would be inappropriate to allow it to proceed.  I say that both with respect to the application for prerogative orders in relation to the decision to cancel the aid and in relation to the applications for a statutory order of review and for prerogative orders affecting the decision of 23 January.

[20] Further, in relation to the decision of 23 January, there is another mechanism for review, namely, under the procedures set up under the Legal Aid Queensland Act, s 21.  It follows that under s 13 of the Judicial Review Act the application for a statutory order of review in relation to that decision of 23 January must be dismissed.

[21] In all of the circumstances, I am prepared to make an order in terms of paragraph 1 of the cross-application.

[22] The order will be as follows:

 

1) I order that the application for the statutory orders of review and orders of review and the amended application made by Ms Ogawa in proceeding BS495 of '08 be dismissed.

[23] I am not prepared to make an order for costs in all the circumstances.

Footnotes

[1] (2005) 221 CLR 99.

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Editorial Notes

  • Published Case Name:

    Ogawa v Briggs & Ors

  • Shortened Case Name:

    Ogawa v Briggs

  • MNC:

    [2008] QSC 18

  • Court:

    QSC

  • Judge(s):

    Wilson J

  • Date:

    25 Jan 2008

Litigation History

No Litigation History

Appeal Status

No Status