MJE v Strofield (Magistrate)[2021] QSC 126

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant (MJE) seeks a number of orders for review of various decisions and that each of the respondents provide statements of reasons pursuant to the Judicial Review Act 1991 (“the JR Act”). The first respondent (Strofield M) has been given leave to withdraw. The second respondent (the Commissioner) seeks an order that the application be dismissed.
2. [2]
   MJE has been the subject of orders made under the Domestic and Family Violence Protection Act 2012 (“the DV Act”). He seeks to review decisions of Strofield M and other judicial officers, and he seeks orders that statements of reasons be given by those judicial officers as well by police officers who have been engaged in the proceedings under the DV Act. For the reasons that follow, MJE’s applications must be dismissed.

The events leading up to this application

3. [3]
   On 22 January 2019, an application for a protection order was taken to have been made when a police officer issued a police protection notice (“PPN”) to MJE. 
4. [4]
   On 23 January 2019, Strofield M made a temporary protection order against MJE. Strofield M extended the original temporary order on a further four occasions. MJE appealed from that decision. The notice of appeal was filed about eight months out of time. Rinaudo DCJ refused to extend time for the bringing of the appeal. His Honour held that the PPN was valid and that Strofield M had properly exercised his discretion to issue the temporary protection order. Otherwise, the appeal was dismissed on 24 February 2020.^[1]
5. [5]
   On 2 December 2019, another magistrate made a protection order against MJE in relation to an application brought by the Commissioner. MJE appealed from that decision. Sheridan DCJ dismissed that appeal but allowed his appeal against the magistrate’s refusal to grant a protection order for the benefit of MJE and ordered that a protection order in his favour be made. Those orders were made on 1 September 2020.^[2]
6. [6]
   On 13 November 2020, MJE filed an “Application relating to statement of reasons”. These proceedings were against Strofield M. That application was misconceived from the beginning. It was, in fact, a complaint about the nature of the temporary protection order and the form it took. A lengthy affidavit was filed by MJE in support of his application. He refers in it to his unsuccessful appeal and that he had received information from the Magistrates Court that there were no documents on file that matched the description:

“•  a document that contains Magistrates notes that identify the reasons why a decision was made on 23^rd of January 2019

•  Court records of the handwritten notes under the hand of Magistrate Strofield”

7. [7]
   There was no material in the affidavit which appeared to be consistent with a request for a statement of reasons having been made under s 32 of the JR Act. 
8. [8]
   On 8 January 2021 MJE filed another document which, although headed “Submissions”, identified orders which were being sought. One of those orders was for leave to be granted to change the originating application to one started by way of claim and statement of claim. There are lengthy submissions including references to the Human Rights Act 2019 and the Crimes (Torture) Act 1988. The latter piece of legislation was a Commonwealth statute which was repealed in 2010.
9. [9]
   A further amended application was filed on 8 January 2021. It is not entirely clear, but MJE appears to have sought a further 32 orders including orders that: 

   1. (a)
      “Pursuant to Rule 667(2)(b) and Rule 668(1)(b) of the Uniform Civil Procedure Rules 1999 the Order made by Magistrate Strofield on the 23^rd of January 2019 to make a Temporary Protection Order on an application made on behalf of the Commissioner of the Queensland Police Service to benefit a third party be set aside on the grounds that the representative of the Commissioner of the Queensland Police knowingly presented an application that was produced by way of fraud to which the court presumed to have been an application that was made in accordance with section 105 of the Domestic and Family Violence Protection Act 2012 and that it be directed that the proceedings to be taken, and the questions or issues of fact to be tried or decided, and the inquiries to be made as the court considers just pursuant to Rule 668(3)(a).”
   2. (b)
      “Pursuant to Rule 667(2)(b) and Rule 668(1)(b) of the Uniform Civil Procedure Rules 1999 the Order made in appeal BD3164/19 by Judge Rinaudo DCJ on the 24^th of February 2020 to refuse leave be set aside on the grounds that the order was obtained by the Commissioner of the Queensland Police Service by way of fraud and the legal representative of the Commissioner having deliberately misled the court by false facts and improperly adduced false evidence that the Commissioner of the Queensland Police Service knew to have been fraudulent or false and that newly disclosed evidence that has come to light indicate an error of law and of fact, was present in the matter to which the appeal related to and that it be directed that the proceedings to be taken, and the questions or issues of fact to be tried or decided, and the inquiries to be made as the court considers just pursuant to Rule 668(3)(a).”
   3. (c)
      “Pursuant to Rule 667(2)(b) and Rule 668(1)(b) of the Uniform Civil Procedure Rules 1999 part of the Order made in appeal BD4678/10 by Sheridan DCJ namely the part of the order at 1. The appeal against the grant of the protection order on 2 December 2019, for the benefit of the second respondent, be dismissed. Be set aside on the grounds that the decision in favour of TRA to which the Commissioner of the Queensland Police Service sought the order to benefit was obtained against the Applicant by way of fraud not only by the Commissioner of the Queensland Police Service but also by TRA to whom the order benefitted and that it be directed that the proceedings to be taken, and the questions or issues of fact to be tried or decided, and the inquiries to be made as the court considers just pursuant to Rule 668(3)(a).”
10. [10]
    The further amended application filed on 8 January 2021 does not appear to have been pursued. 
11. [11]
    The Commissioner was later joined as a respondent pursuant to orders made in this court.
12. [12]
    A further amended application was filed on 25 January 2021. It purports to be an application in relation to decisions by Strofield M made at various times between January and June 2019. An example of the uncertainty which attaches to this application is that it is said to be in relation to, among other things, “17^th of June 2019 if any decision was made if any then the reasons for making that decision are sought to be provided that was made in court 25 on 17 June 2019.”
13. [13]
    The application of 25 January 2021 also seeks orders in relation to “decisions” of the Commissioner. It appears to seek statements of reasons of numerous kinds, for example:

    1. (a)
       “Statement of Reasons to include why the Second Respondent failed to correct the First Respondent and not draw his attention to the fact that the first application had been finalised and no longer was relevant.”
    2. (b)
       “Statement of Reasons to include the decision made on 19 August 2019 when the matter was set for hearing in Court 25 that the Second Respondent failed to make the Applicant aware that the matter termed “Young v Black”.”
    3. (c)
       “Statement of Reasons to include why the Second Respondent partook in the concealment of the swapping of the affidavit contained in the appeal file of BD 4678/19 and the 8 photographs contained in the court file that were annexed tothe affidavit of the alleged Aggrieved to the police application for a Protection Order with a version of the Affidavit that a clear attempt to sign and stamp it exactly the same was made however the witness to the oath signature was left out so as to ensure that the alleged Aggrieved was not held accountable to perjury or criminal charges due to the clear and evident lies and manipulation of facts.”
14. [14]
    On 25 January 2021, MJE filed a further amended application. The further amended application seeks, among other things, an order requiring Strofield M and the Commissioner to provide him with a statement of reasons for various decisions made or alleged to have been made. It is impractical to set out all the orders sought, but the nature of them can be discerned from these examples:

    1. (a)
       “On the 23^rd of January 2019 Magistrate Colin Strofield made the decision to make a Temporary Protection Order that name to myself as the Respondent and a TRA as the Aggrieved – In the making of this order Magistrate Colin Strofield failed to provide any reasons for his decision to make a Temporary Protection Order nor did he consider whether the limbs of section 45 of the DFVPA Act 2012 had been met prior to the making of the order, he was required to, but failed to, review the application made by police to assess whether it was a valid application for a protection order as on the face of the PPN neither sections 101 or 101A had been circled which should have indicated that PPN may not have been issued accordingly under the DFVPA Act and if it had been properly reviewed by Magistrate Strofield or had there been reasons for making the decision that he had made in the transcripts the reasons to which he had decided to make the Temporary Protection Order are known.”
    2. (b)
       “Pursuant to section 21 of the Judicial Review Act that an order be made to review the drafting and filing of the court order and of the Protection Order issued by a Judge Sheridan in Appeal BD4678/19 that the Second Respondent had confirmed to the registrar was correctly made when it wasn’t as it contained the following issues:

       1. Wrong Court listed that issued it – Magistrates Court when it was District Court.
       2. States “it is ordered without admissions that:” when it had to state “It is ordered that:” – Due to Domestic violence having been proven to have occurred.
       3. The conditions of the order are listed in a way that they appear to have been a copy and paste exercise to which it would be possible if there wasn’t words misspelt such as the word “devise” instead of “device”
       4. At the end of the order it states “UNLESS OTHERWISE ORDERD THE

ORDER CONTINUES IN FORCE TO AND INCLUDING 01/12/2024” when it should say “THE ORDER WILL CEASE ON 1/12/2024”

3. (c)
   “Why the decision was made on the 22^nd of January 2019 to issue a Police

Protection Notice that had not met the requirements of sections 100, 101 or 101A of the Domestic and Family Violence Protection Act 2019;”

4. (d)
   “Why on the 14^th of June 2019 the Second Respondent made the decision to seek to have the DV offences sent to Goondiwindi Magistrates Court if the Applicant was contesting the charges knowing that the Applicant could not afford to travel to Goondiwindi and also would contravene bail conditions if he did travel to Goondiwindi for court when QPRIME occurrence lists the alleged offences as having been committed in Brisbane and not Goondiwindi;”
5. (e)
   “Why the Second Respondent refuses to properly investigate the conspiracy to bring false accusations and conspiracy to murder allegations that the Applicant is the victim of.”
6. (f)
   “Statement of reasons are sought for why police have refused to investigate properly the following Conspiracy allegations against TRA whom is actively conspiring to get me framed for crimes I didn’t commit to be killed in jail”

15. [15]
    The material relied upon by MJE is strewn across a number of documents including the amended application. There are allegations of substantial criminality or negligence made against members of the Queensland Police Service and against various Magistrates. Some of the matters raised are completely unrelated in a legal or factual sense to the applications heard under the DV Act. The material filed contains lengthy references to decisions which are of no relevance to these proceedings and to actions taken by MJE which appear to have no relevance to these proceedings.
16. [16]
    There are frequent references to MJE’s belief that TRA is planning to have him killed. The submissions upon which MJE relies is peppered with statements of no assistance such as: “The wicked flee when no man pursueth, but the righteous are as bold as a lion.”^[3]
17. [17]
    On 3 February 2021, a further application was filed in which MJE seeks leave to amend various documents and for the lengthy exhibits in another affidavit to be considered as supporting material. It is incomprehensible.

The application to dismiss

18. [18]
    Of overriding importance in this application is s 4 of the JR Act which determines the extent of the powers under the JR Act by reason of the JR Act applying only to decisions of an administrative character:

“4  Meaning of decision to which this Act applies

In this Act—

Decision to which this Act applies means—

1. (a)
   a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion); or
2. (b)
   a decision of an administrative character made, or proposed to be made, by, or by an officer or employee of, the State or a State authority or local government authority under a non-statutory scheme or program involving funds that are provided or obtained (in whole or part)—

   1. out of amounts appropriated by Parliament; or
   2. from a tax, charge, fee or levy authorised by or under an enactment.”

19. [19]
    Section 48(1) of the JR Act provides: 

“48  Power of the court to stay or dismiss applications in certain circumstances

1. (1)
   The court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application, if the court considers that – 

1. (a)
   it would be inappropriate –

1. (i)
   for proceedings in relation to the application or claim to be continued; or 
2. (ii)
   to grant the application or claim; or

2. (b)
   no reasonable basis for the application or claim is disclosed; or 
3. (c)
   the application or claim is frivolous or vexatious;

or 

4. (d)
   the application or claim is an abuse of the process of the court.”

20. [20]
    The Commissioner sought to demonstrate that no reasonable basis for the application had been disclosed and that it would be inappropriate for the application to continue.
21. [21]
    It should be noted that s 48 does not apply to orders sought under s 38 of the JR Act – which appears to be the section relied upon by MJE with respect to the statements of reasons. 
22. [22]
    Section 38 of the JR Act provides:

“38  Application for order to comply

1. (1)
   If — 

   1. (a)
      a person (the requester) makes a request under section 32 to a person (the decision-maker) for a written statement in relation to a decision; and 
   2. (b)
      the decision-maker does not comply with the request, or apply to the court under section 39 in relation to the request, within 28 days after receiving the request; the requester may apply to the court for an order under this section. 
2. (2)
   If the court considers that the requester was entitled to make the request, the court may order the decision-maker to give the statement within a specified period.”

[23] A request for reasons may be the subject of an application under s 39 wherein an order is sought that the requester was not entitled to make the request:

“39  Application for order that person not entitled to statement

1. (1)
   If — 

   1. (a)
      a person (the decision-maker) receives a request under section 32 from a person (the requester) for a written statement in relation to a decision; and 
   2. (b)
      the decision-maker is of the opinion that the requester is not entitled to make the request; the decision-maker may apply to the court for an order under this section declaring that the requester was not entitled to make the request.
2. (2)
   If the court considers that the requester was not entitled to make the request, the court may, by order, declare accordingly, but otherwise the court must refuse the application. 
3. (3)
   If the court refuses the application, the decision-maker must — 

   1. (a)
      prepare the statement to which the request relates; and 
   2. (b)
      give it to the requester within 28 days after the court’s decision.”

24. [24]
    The reasons which might support an order under s 39(2) were ventilated completely in the written submissions and in argument. The Commissioner, in the submissions made on her behalf, sought orders dismissing all of the applications. In doing so reliance was placed, so far as the request for reasons was concerned, on s 31 of the JR Act. It provides:

“31  Decision to which part applies

In this part — 

decision to which this part applies means a decision that is a decision to which this Act applies, but does not include — 

1. (a)
   a decision that includes, or is accompanied by a statement, giving the reasons for the decision; or 
2. (b)
   a decision included in a class of decisions set out in schedule 2.”

25. [25]
    So far as it is relevant, schedule two provides:

“1  Administration of criminal justice

Decisions relating to the administration of criminal justice, and, in particular — 

1. (a)
   decisions in relation to the investigation or prosecution of persons for offences against the law of the State, the Commonwealth, another State, a Territory or a foreign country; and 
2. (b)
   decisions in relation to the appointment of investigators or inspectors for the purposes of such investigations; and 
3. (c)
   decisions in relation to the issue of search warrants under a law of the State; and 
4. (d)
   decisions under a law of the State requiring — 

1. (i)
   the production of documents or things; or 
2. (ii)
   the giving of information; or 
3. (iii)
   the summoning of persons as witnesses.

“2  Civil proceedings 

Decisions in relation to the institution or conduct of proceedings in civil courts, including decisions that relate to, or may result in, the bringing of such proceedings for the recovery of the proceeds of crime or the recovery of pecuniary penalties arising from contraventions of enactments, and, in particular — 

1. (a)
   decisions in relation to the investigation of persons for such contraventions or the recovery of the proceeds of crime; and
2. (b)
   decisions in relation to the appointment of investigators or inspectors the purposes of such investigations; and 
3. (c)
   decisions in relation to the issue of search warrants under enactments; and 
4. (d)
   decisions under enactments requiring — 

1. (i)
   the production of documents or things; or 
2. (ii)
   the giving of information; or 
3. (iii)
   the summoning of persons as witnesses.”

The application against the first respondent

26. [26]
    MJE has, in email correspondence to the Brisbane Magistrates Court, sought a statement of reasons with respect to decisions of Strofield M. That in itself, of course, does not create a right to a statement of reasons. Section 32 of the JR Act provides that if a person makes a decision to which Part 4 applies then a person who is entitled to make an application may request a written statement.
27. [27]
    MJE also seeks the review of decisions of Strofield M and of decisions made on appeal from his decisions. The decisions made by Strofield M were of a judicial character. They involved, among other things, the exercise of a judicial discretion under, for example, s 98 of the DV Act. They were not decisions of an administrative character.
28. [28]
    Decisions made by District Court judges in appeals from decisions of Strofield M and another magistrate are not susceptible to review under the JR Act. Apart from those judges not being parties to MJE’s application, the decisions were judicial decisions pursuant to the appellate jurisdiction of the District Court. They were not decisions of an administrative character.
29. [29]
    I note that the alleged absence of reasons was not a ground upon which MJE sought to appeal the decision of Strofield M. In any event, MJE was not entitled to any such reasons pursuant to the JR Act because they do not fall within the general description of a “decision of an administrative character”.
30. [30]
    This part of the application must fail as the relief sought is outside the compass of the JR Act. 

The application against the second respondent

31. [31]
    The application by MJE is unclear in many respects. His written submissions extend over some 75 pages and he has filed over 1000 pages of other material.
32. [32]
    The briefest expression of his application is that he seeks orders to review some actions by members of the Queensland Police Service and for statements of reasons for numerous decisions made by members of the Queensland Police Service with respect to the conduct of investigations and of court proceedings.
33. [33]
    It is a well-established principle that the conduct of police investigations, particularly decisions by police whether or not to prosecute, are not susceptible to a statutory order of review and, thus, they are not susceptible to a request for a statement of reasons.^[4] As Gaudron and Gummow JJ said in Maxwell v The Queen:^[5]

“The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.”

34. [34]
    I need not decide whether the investigations by the police and the actions they took under the DV Act were of an exclusively criminal or civil nature. They fall within either clause 1 or clause 2 of Schedule 2 of the JR Act. Some could be categorised as being decisions relating to the administration of criminal justice and some could be categorised as decisions in relation to the institution or conduct of proceedings in civil courts.
35. [35]
    Further, MJE has not demonstrated that he has made the necessary requests of the Commissioner which would enliven Part 4 of the JR Act. I see no point in allowing this application to proceed. It is little more than an attempt to rehash arguments which failed (twice) in the District Court and to advance allegations which are scandalous. There is no basis upon which MJE could succeed even if he had made requests in accordance with the JR Act. The various applications for statements of reasons fail at the outset.

Conclusion and order

36. [36]
    All of MJE’s applications are dismissed.
37. [37]
    The Commissioner has sought her costs of the application. Given the circumstances referred to above, I order that the applicant pay the second respondent’s costs of the application.