DU v Jackson[2023] QSC 185

SUPREME COURT OF QUEENSLAND

1. [1]
   This is an application for leave to commence proceedings following an order pursuant to r 15 of the Uniform Civil Procedure Rules 1999 (UCPR).
2. [2]
   The second respondent has filed a cross application to stay the proceedings pursuant to section 48 of Judicial Review Act 1991 (Qld) (the JR Act), but accepted that that application should only be considered if leave to commence proceedings were granted.

The background to this application

3. [3]
   It is necessary to set out some history of the matter to understand why leave is required.
4. [4]
   The relevant background is:

   1. on 2 March 2022, orders were made in the Southport Magistrates Court under the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act). These were final orders on a police protection notice against the applicant and a refusal of the applicant’s cross-application for a protection order against TU;
   2. on 30 March 2022, the applicant filed a notice of appeal which was heard by Judge Jackson; 
   3. on 16 September 2022, his Honour gave judgment in which he dismissed the appeal for the protection order against the applicant, allowed the cross-application appeal and remitted the matter to the Southport Magistrates Court (the Decision).^[1] The remitted cross-application had not been finalised at the time of hearing this application;
   4. on 14 October 2022, the applicant filed an appeal in the Court of Appeal;
   5. on 15 November 2022, Mullins P struck out the appeal on the basis of lack of jurisdiction;^[2]
   6. on 3 February 2023, the applicant filed an application for special leave to appeal in the High Court;
   7. on 18 May 2023, the High Court dismissed the application;^[3]
   8. on 12 June 2023, the applicant attempted to file an application for review of the Decision (the JR Application);
   9. the Registrar referred the JR Application to Justice Burns pursuant to rule 15 of the UCPR;
   10. on 13 June 2023, Justice Burns directed the Registrar to refuse to issue the JR Application without leave of the Court; 
   11. the applicant was notified of this requirement on 16 June 2023; and
   12. on 30 June 2023, the applicant filed an originating application seeking “leave to issue a prerogative order of review, pursuant to sections 41-47 of the Act”. This leave is opposed by the second respondent.

What is required for the court to grant leave?

5. [5]
   UCPR r 15 provides:

1. If the registrar considers an originating process appears to be an abuse of the process of the court or frivolous or vexatious, the registrar may refer the originating process to the court before issuing it.

2. The court may direct the registrar–

1. to issue the originating process; or

2. to refuse to issue the originating process without leave of the court.

6. [6]
   To obtain leave after a r 15 order, the applicant must demonstrate that the originating process is not vexatious, frivolous or an abuse of process.
7. [7]
   On the question of whether leave should be granted under UCPR r 15, Brown J in McEwan v Merrin (Magistrate)^[4] said:

“[9] In determining whether to grant leave, the question for me is whether the plaintiff sufficiently, in an articulate way set out the nature of the claim and relief sought such that the statement of claim discloses the cause of action identified in the claim. It does not involve an assessment of the prospects of success of the claim or any assessment of the merits of the claim. For the purpose of determining this application the court examines the claim and statement of claim. It is therefore not relevant that I review the affidavit evidence annexing transcripts upon which the plaintiff relies to support her pleased allegations.

[10] It is only in the clearest of cases where on the face of the pleading it discloses no reasonable cause of action which is evident on a review of the face of the pleading that leave will be refused. As to what is required of a pleading, Bowskill J (as she then was) in Equititrust Limited v Tucker and Others stated that:

“….Considerations relevant in deciding if a pleading is deficient include whether it fails to fulfil the function of pleadings, which is to state with sufficient clarity the case that must be met and so define the issues for decision, ensuring procedural fairness; whether it is ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against them; and whether the pleader’s case is not advanced in a comprehensible, concise form appropriate for consideration by both the court, and for the purpose of the preparation of a response.”” (citations omitted)

8. [8]
   I respectfully agree – so far as those statements concern matters commenced by claim and statement of claim. The underlying principle applies here.
9. [9]
   An application for a prerogative order under the JR Act is made by way of an application for review – s 43(1). That application is to be made in Form 56 which requires that the details of the claim be set out and that the grounds of the claim be set out in an accompanying affidavit. Thus, the originating process must identify the orders sought and the grounds relied upon for each order. There is no cause of action to be identified – in the sense used in ordinary civil proceedings – but there is a need to articulate how the grounds advanced can support the making of the order or orders sought.

What orders were sought?

10. [10]
    The JR Application sought the following orders:

    1. a declaration that the District Court Proceeding was conducted unlawfully;
    2. an order of certiorari to quash the Decision on the basis of:
       1. (i)
          jurisdictional error;
       1. (ii)
          bad faith or fraud;
       1. (iii)
          error of law on the face of the record; and
       1. (iv)
          ancillary to a declaration;
    3. an order of mandamus, compelling Judge Jackson to allow the appeal, then dismissing the protection order application or orders of similar effect; and
    4. a declaration that the circumstances of the District Court Proceeding breached section 31(1) of the Human Rights Act 2019 (Qld).
11. [11]
    The accompanying affidavit does not provide grounds for the first, third or fourth of the orders sought. It purports to provide grounds relevant to certiorari. It includes a sixth ground not directed to any of the orders sought and a seventh ground concerning delay.
12. [12]
    The absence of grounds for the first, third or fourth orders sought means that the JR Application is, to that extent, vexatious.
13. [13]
    There were two matters which were ventilated in submissions:

    1. whether there is any satisfactory explanation for the delay in attempting to file the JR Application; and
    2. whether the JR Application and the accompanying affidavit disclose any jurisdictional error sufficient to support an order of certiorari.

There has been substantial delay

14. [14]
    The Decision was delivered on 16 September 2022. The applicant sought to file the JR Application on 12 June 2023.
15. [15]
    The JR Act requires any application for certiorari regarding judgments to be made within 3 months from the day the judgment was issued. See s 46.  The JR Application was 178 days out of time. 
16. [16]
    The applicant offered two explanations for the delay. They are:

    1. the applicant relied on submissions made on behalf of the second respondent in the Court of Appeal to the effect that DVFP s 169(2) meant that the Decision was not justiciable and that that caused the applicant to believe that judicial review did not apply; and
    2. advice received by LawRight caused the applicant to believe the Decision could not be judicially reviewed.
17. [17]
    The first explanation is not a satisfactory justification for the delay. These were submissions made by an opposing party in litigation. Further, the submissions were made with respect to whether the Court of Appeal had jurisdiction to hear an appeal and not whether judicial review was available.
18. [18]
    The second explanation is also unsatisfactory. The email from LawRight which the applicant relied on in support of this submission is dated 22 December 2022. That is 7 days after the limitation period expired. The email contains the following:

“We must advise that if the Queensland Court of Appeal (and other Federal Courts) have stated it has no jurisdiction to hear an appeal of this type, this is almost certainly the case, and the District Court’s protection order decision will stand.”

19. [19]
    The email simply advises that if the Court of Appeal states that it has no jurisdiction to hear an appeal “of this type”, then the Court of Appeal is likely to be correct. So much can be accepted. It did not relate to any rights which might be available under the JR Act.
20. [20]
    The court can extend time under s 46 but consideration should not be given to that, or the effect of delay, until a decision is made about granting leave to issue the originating process. 

What grounds will support an order for certiorari?

21. [21]
    A court of limited jurisdiction (such as the District Court) will fall into jurisdictional error:

    1. if it mistakenly asserts or denies the existence of jurisdiction; or
    2. if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such a court does not commit jurisdictional error whenever it addresses the wrong issue or asks itself the wrong question.^[5] 
22. [22]
    The applicant submitted that there were five grounds for jurisdictional error. They are:

    1. His Honour acted in bad faith on two occasions by concealing or not allowing exculpatory evidence (grounds 1 and 6 in the accompanying affidavit);
    2. His Honour made an incorrect statement regarding a DVFP s 151 application made during the Magistrates Court hearing, which the second respondent did not correct (ground 2);
    3. section 41 of the DVFP Act requires both an originating application and a cross-application for a protection order to be heard and determined at the same time (ground 3); and
    4. His Honour fabricated statements to bolster the Decision (ground 4).
23. [23]
    There was a sixth ground (ground 5) which was unrelated to any basis for certiorari. The ground was bizarre – an assertion that “the courts endorsed the aggrieved stating that she was thinking about raping and killing children, and any reaction to it was domestic violence.” No attempt was made to show how this perverse argument related to the decision.
24. [24]
    The first challenge was that his Honour disregarded matters required to be taken into account and instead concealed exculpatory evidence (grounds 1 and 6 in the accompanying affidavit). The applicant made submissions (both orally and in the accompanying affidavit) regarding exchanges between the applicant and Judge Jackson which were said to be examples of this. However, the exchanges relate to the cross-application appeal and not the original application appeal.
25. [25]
    These exchanges do not demonstrate exculpatory evidence being concealed. Judge Jackson kept pointing out to the applicant that the submissions and evidence were not relevant to the question of whether the Magistrate made an error as to the law or facts which were relied upon to make the protection order against the applicant.
26. [26]
    The second challenge was that his Honour stated during the hearing that a DVFP s 151 application which was granted in the Magistrates Court proceeding was not dismissed and the second respondent, knowing that this statement was false, did not correct his Honour.
27. [27]
    During the hearing, the applicant said that “the section 151 application was withdrawn and dismissed by the prosecution.” His Honour merely corrected the applicant by stating that the prosecution could withdraw an application, but not dismiss it. Only the court could dismiss an application.
28. [28]
    The Verdict and Judgment Record contains a notation that the Magistrate dismissed the original s 151 application. Whether his Honour knew that is not clear, but it is irrelevant. At most it might demonstrate that his Honour misapprehended the disposition of that matter in the Magistrates Court. It does not support a conclusion that there was jurisdictional error.
29. [29]
    The third jurisdictional challenge was a submission that DVFP s 41C(2) required the judge to hear and determine both the original application and the cross application or to have both applications remitted to the Magistrates Court.
30. [30]
    The applicant relied on the High Court decision of Stanley v Director of Public Prosecution (NSW)^[6] in support of this submission. However, Stanley does not assist the applicant.
31. [31]
    In Stanley, the majority judgment found that, as the District Court of New South Wales is an inferior court of limited jurisdiction, the District Court judge was required (in those circumstances) to undertake an assessment mandated by s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).^[7] This mandatory assessment did not occur, thus the judgment was unsupported as the orders were made outside the jurisdiction of that court. 
32. [32]
    Section 41C(2) of the DVFP requires a court to hear the original application and cross application together but to also consider whether it necessary to make arrangements for the safety, protection or wellbeing of the person most in need of protection in the relevant relationship.
33. [33]
    This requirement is only in respect to an original application, a cross application or in a variation to the protection order. It does not refer to appeals, even though appeals can be conducted by way of a rehearing.^[8]  
34. [34]
    The Decision dealt with an appeal from an originating application and a cross-application. Section 41C(2) is not relevant to an appeal.
35. [35]
    Section 169 of the DVFP provides:

    1. In deciding an appeal, the appellate court may:
       1. (i)
          confirm the decision appealed against; or
       1. (ii)
          vary the decision appealed against; or
       1. (iii)
          set aside the decision and substitute another decision; or
       1. (iv)
          set aside the decision appealed against and remit the matter to the court that made the decision
    2. the decision of the appellate court upon an appeal shall be final and conclusive.
36. [36]
    There is no requirement to remit both matters.
37. [37]
    The decision by Judge Jackson to remit the cross application was made clear at the start of the District Court hearing and was consented to by the second respondent. His Honour confirmed the original application for a protection order against the applicant. These were both within the District Court’s jurisdiction.
38. [38]
    The effect of the applicant’s position would be for both matters to be remitted despite one being confirmed on appeal (which is to be final and conclusive). This position would amount to an abuse of process. His Honour made this issue clear to the applicant during the hearing of the Decision when the applicant first made the submission.   
39. [39]
    The fourth jurisdictional challenge was an allegation that Judge Jackson fabricated a statement to bolster the Decision. The allegation is based on an excerpt from the Decision and the applicant’s assertion that his Honour lied to bolster the Decision. That assertion is entirely without foundation and is scandalous.
40. [40]
    The JR Application and its accompanying affidavit demonstrate no grounds upon which an order for certiorari might be made. It is vexatious and an abuse of process.

Application for Permanent Stay

41. [41]
    As leave has not been granted, the second respondent’s cross-application to permanently stay the proceedings pursuant to s 48 of the JR Act need not be considered.  Similarly, the issue of delay need not be considered as there is no proceeding on foot under the JR Act.

Orders

42. [42]
    The applicant and second respondent made submissions as to costs only in respect to the application for a permanent stay. No submissions were made with respect to the application for leave.
43. [43]
    I make the following order: leave to issue proceedings is refused.
44. [44]
    I will hear the parties as to costs.