Gapes v Queensland[2023] QCA 45

SUPREME COURT OF QUEENSLAND

THE COURT:  Ms Gape’s application for judicial review was dismissed below pursuant to s 13, Judicial Review Act 1991 (Qld).  Section 13 obliged the Court to dismiss her application because it was satisfied a provision is made by another law entitling the applicant to seek a review of the matter by “another court or a tribunal, authority or person” and that “having regard to the interests of justice”, it should do so.

Section 13 is evidently calculated at summarily dismissing applications which will consume the resources of the Court unnecessarily on account of another path of review having been available.  That same consideration likely informs why s 15 of the Act requires the applicant to seek this Court’s leave to bring an appeal against the decision below.  It has been said circumstances warranting a grant of leave to appeal may include the need to determine an important point of principle or prevent substantial injustice – see, for example, Hayes v Surfers Paradise Rock and Roll Café Pty Ltd [2011] 1 Qd R 346 at 355 and Commissioner of State Revenue v Harrison [2019] QCA 50 at [15], [66].  However, s 15 does not prescribe the circumstances in which leave should be given, and the decision whether to grant leave will necessarily turn upon the nature of the case.

The nature of this case involves no important point of principle.  Given it was a summary dismissal, the determinative consideration is whether there exists a reasonable argument the learned primary Judge erred in summarily dismissing the matter and thus depriving Ms Gapes of a full hearing.  However, that consideration alone would not be determinative, and it would also be relevant to consider whether there existed a reasonable basis for the application below.  The latter consideration is relevant because even if his Honour erred, there is no utility in granting leave to appeal in respect of an application for which there is no reasonable basis, a feature returned to below.

The respondent below discerned the following four decisions were the purported subjects of the review and identified the following other paths to review them:

1. decisions of the RSPCA of 4 and 5 March 2022 to issue animal welfare directions, in respect of which there should have been an application for an internal review prior to an appeal in the Magistrates Court or now a review in QCAT per sections 193, 199 and 198A, Animal Care and Protection Act 2001 (Qld);
2. decisions of the RSPCA of 8 and 9 March 2022 to seize property, in respect of which there should have been an application for internal review prior to an appeal then being pursued in the Magistrates Court per sections 193 and 199, Animal Care and Protection Act;
3. decisions of the Department of Environment and Science of 11 March 2022 to suspend the appellant’s mother’s specialised licence, in respect of which there could have been an application to the Chief Executive for internal review prior to applying to QCAT for a review per sections 378 and 379, Nature Conservation (Animals) Regulation 2020 (Qld); and
4. decisions of the Department of Agriculture and Fisheries of 13 April 2022 to forfeit seized animals, in respect of which there should have been an application for internal review prior to an appeal then being pursued in the Magistrates Court per sections 193 and 199, Animal Care and Protection Act.

It is not apparent how Ms Gapes could have had standing in respect of the third-mentioned decision.  Further, to discern those decisions were the targets of the application required scrutiny of the affidavits filed by Ms Gapes.  They were not discernible on the face of the application.

In any event, ignoring those problems and accepting those decisions were discernible as the decisions the subject of the application, it was open to the learned primary judge to conclude, as he did, that they were reviewable by another path.  His Honour went on to conclude in the light of that and what he described as the incoherence of the argument advanced by the applicant that the continuation of the application was not in the interests of justice.

The submissions of the applicant have not identified a reasonable argument that the learned primary judge erred in concluding there was another path of review or that having regard to the interests of justice, the application should be dismissed, nor is such an argument identifiable from the materials.

A challenging aspect of that consideration is that the application below lacked particularity and alignment with the legal criteria for statutory review.  It was instead advanced, as was the present application, as if judicial review is akin to a roving investigation of multiple and broadly cast grievances.  It is not.  That problematic aspect was the foundation below for an alternative application for summary dismissal pursuant to s 48 of the Act, on the grounds the application disclosed no reasonable basis, was frivolous or vexatious and was an abuse of the Court’s process.  It is sufficient to observe for present purposes that there could only have been one potential error in proceeding to determine the matter by reference to the availability of alternative paths to review.  That would have been that the nature of the review sought was too obscure to sensibly discern the basis for it and thus to assess the existence of alternative review paths.  But if so, there should have been a s 48 dismissal because the application disclosed no reasonable basis.  That flaw arose from the applicant’s materials, which materials were also inadequate to establish her various complaints.

In short, whether s 13 or s 48 was the more correct pathway, the application was properly destined for summary dismissal below.  Leave should not be given to allow a misconceived attempt to use the Court’s processes and resources, properly terminated below, to live on in this Court.

Applications were filed in this application on 1 November 2022 and 8 March 2023.  One was to stay a different proceeding, seemingly a prosecution described as “RSPCA vs Sonya Gapes”.  Another was an attempt to have this Court rehear what appears to have been a prosecution described as “R v Sonya Lesley Gapes” and to stay “all parties and matters in the Townsville Courthouse”.  If it be the case that Ms Gapes thinks she has been the victim of perjury and wishes to assert she has been wrongly convicted of some offence, then her remedy is to appeal such conviction.

Finally, one of the applications also appears to have been advanced as if it was an application to adduce further evidence in this appeal.  No legitimate basis has been identified for that to occur.

The orders are:

1. The applications filed within this application on 1 November 2022 and 8 March 2023 are refused.
2. Application for leave to appeal refused with costs.