SYO v CMQ[2024] QSC 324

SUPREME COURT OF QUEENSLAND

1. [1]
   On about 4 December 2024, the applicant sought to file in the registry an application for judicial review of a decision made by his Honour Judge Long SC on 5 November 2024.  The decision dismissed applications by the applicant, and a counsellor, seeking to set aside the earlier grant of leave to issue subpoenas to compel production of “protected counselling communications”.  A registrar referred the originating process to the court  under r 15(1) of the Uniform Civil Procedure Rules 1999.  A judge of the court directed the registrar, under r 15(2)(b), to refuse to issue the originating process without leave of the court.
2. [2]
   That direction was communicated to the applicant on 5 December 2024.  On 6 December 2024, Women’s Legal Service, on behalf of the applicant, wrote to the Court, requesting that the direction made under r 15 be set aside under r 667 of the UCPR, on the ground that the direction was made in the absence of the applicant.
3. [3]
   The letter of 6 December 2024 was drawn to my attention on 17 December 2024.   I instructed my associate to respond in the following terms:

“Her Honour understands that last week, [SYO] sought to file an ‘application for review’.  A registrar referred the originating application to the court under r 15(1) of the UCPR.  This procedure is available where the registrar considers an originating process ‘appears to be an abuse of the process of the court or frivolous or vexatious’.  A judge of the court directed the registrar, under r 15(2), to ‘refuse to issue the originating process without leave of the court’.  The effect of this direction is that the applicant must make an application for leave to issue (file) the originating process.   It does not reflect a concluded finding that the originating process ‘is’ frivolous or vexatious.  

The Chief Justice asks me to say that your letter appears proceed on the misunderstanding that the effect of the direction made under r 15(2) is that a judge has made a conclusive finding that the application is frivolous or vexatious.   That is not the case.   The procedure under r 15 does occur without hearing from the applicant – but that is in circumstances where the effect of the direction the court can make under r 15(2) is either that the registrar is to accept the originating process for filing, or is not to accept it unless the applicant obtains leave of the court to file it.

In the circumstances, Bowskill CJ does not consider it appropriate to set aside the direction under r 667 of the UCPR.  However, her Honour would be willing to treat your letter of 6 December 2024 as an application for leave to issue the originating process, and to deal with that application for leave on the papers this week.  No further material will be required.

Please confirm if you agree to the matter proceeding in that way.  Alternatively, if you wish to be heard further about this, and the content of your letter, the matter can be listed before her Honour at any time this week.”

4. [4]
   The applicant’s legal representative responded to say that they were content for the matter to be dealt with in the way I had proposed.
5. [5]
   I am satisfied it is appropriate to give the applicant leave to issue the originating process (that is, to file the application for judicial review), subject to two matters:

   1. it would be appropriate to either remove the named second respondent, or perhaps amend the application to refer to the Director of Public Prosecutions as the second respondent – the Crown (the King) brings the charge against the first respondent, but is not, in my view, an appropriate party to be named as a respondent to an application such as this; and
   2. it is unnecessary to name the judge as a party to the proceeding.^[1]
6. [6]
   Otherwise, whilst at first it appears unusual for a proceeding to name a judge as a respondent, the particular nature of the order which is sought to be challenged is such that judicial review – in the sense of invoking this court’s supervisory jurisdiction over inferior courts and tribunals, to seek an order in the nature of certiorari – is the appropriate course, as opposed to an appeal.  Examples of such cases are referred to in footnote 1.
7. [7]
   The matters set out above, including the grant of leave to file the originating process subject to amendment of the parties, were communicated to the applicant’s legal representative on 17 December 2024.  In response, further submissions were provided by Women’s Legal Service, in relation to the point made in paragraph 5(b) above.  The point made in those further submissions is the applicant accepts it is appropriate that the named judge be removed as a respondent to the applicant, but submits that the “District Court of Queensland” should be named as a respondent.
8. [8]
   In the circumstances, it was appropriate to raise this matter prior to seeking to file the originating application in accordance with the leave granted.  However, given the substance of the matters raised I considered it more appropriate for the further consideration to occur in open court and so listed the matter accordingly, with leave for the applicant’s representative to appear by telephone.  That took place today, 18 December 2024, with Mr Scott KC appearing. 
9. [9]
   Having regard to the authorities which have now been referred to, I accept that, in a case such as this, where relief in the nature of certiorari is sought in relation to an order made by a judge of the District Court, the appropriate party is the “District Court of Queensland”.  The point is made succinctly by Basten JA in Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783 at [13]:

“It is not insignificant in relation to the available relief that the second respondent to the application was named as Justice Latham. In relation to judicial review proceedings the decision-maker is properly named as a party who must be bound by the judgment of the court. However, unless the decision-maker acts as an individual, the responsible body should be named and not the individual. That principle applies to office-holders generally and not only courts and tribunals: Brown v Rezitis (1970) 127 CLR 157 at 169 per Barwick CJ; Kerr v Commissioner of Police [1977] 2 NSWLR 721 at 724-725 per Moffitt P (Hope and Samuels JJA agreeing); Re Ruddock; Ex parte Reyes [2000] HCA 66; (2000) 75 ALJR 465 at [25]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at [43] per McHugh J; Police Integrity Commission v Shaw [2006] NSWCA 165; (2006) 66 NSWLR 446 at [43]. An application for an inquiry under Pt 7 of the Appeal and Review Act is, as appears below, made ‘to the Supreme Court’ and any direction or referral made upon considering the application is also made ’by the Supreme Court’: s 78(1) and s 79(1) set out at [15] below. It is therefore appropriate that the second respondent not be named as an individual judge, but as the Supreme Court of New South Wales.”

10. [10]
    In the context of an application for a writ of certiorari addressed to a particular named judge of the Federal Circuit Court of Australia, Perram J in CQX18 v Minister for Home Affairs [2019] FCA 386 said, at [3]–[4]:

“Judge Street should be removed as a respondent. Whilst understandable, because Judge Street is the judge who exercised the jurisdiction of the Federal Circuit Court in the case at hand, the naming convention adopted by the Applicant is not appropriate. This proposition is derived from s 8(4) of the Federal Circuit Court of Australia Act 1999 (Cth) (‘Federal Circuit Court Act’) which provides that the Federal Circuit Court ‘consists’ of its Chief Judge and the other Judges holding office ‘from time to time’. Consequently, it has no separate legal personality from its Chief Judge and the other Judges of whom it entirely and only exists. No question of whether the Court is an officer of the Commonwealth therefore arises because ‘the Court’ is merely a useful shorthand for ‘The Chief Judge of the Federal Circuit Court and the Judges from time to time holding office in that Court’ all of whom are officers of the Commonwealth amenable to relief under s 39B of the Judiciary Act 1903 (Cth).

This is certainly the procedure adopted in relation to other inferior tribunals which are said to ‘consist’ of their members. Thus the proper respondent in an application for writs of certiorari and prohibition against the former Refugee Review Tribunal is ‘The Refugee Review Tribunal’ and not the Tribunal member making the decision: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 at 310 [43] per McHugh J, 325 [91] per Gummow J, 341 [153] per Kirby J, and 347 [180] per Hayne J. The same is true of the Fair Work Commission: Deva v University of Western Sydney [2011] FCA 199 at [23]; see also the comprehensive review of the authorities in this intriguing area by Flick J in Warrell v Fair Work Commission (No 2) [2013] FCA 402 at [3]. The slight twist here perhaps is that the Federal Circuit Court is an inferior court and not an inferior tribunal but, at least for present purposes, that distinction is immaterial (cf Craig v South Australia [1995] HCA 58; 184 CLR 163 at 176-177 [11]). Accordingly, there is no reason for Judge Street to be an individual respondent to the application for relief.”^[2]

11. [11]
    I can see no reason to conclude the position is any different where relief “in the nature of” certiorari is sought, under s 41 the Judicial Review Act 1991 (Qld), as opposed to an application for a writ of certiorari under the Commonwealth law.
12. [12]
    A judge does not make a decision in their personal capacity, but rather as a member of a court.  The members of the District Court are the District Court judges, and the District Court is constituted by any one of its members (s 5 of the District Court of Queensland Act 1967).  That it is the Court, not an individual judge, who exercises power is confirmed by s 69 of that Act, which provides that “the District Court has…” the powers and authorities set out in s 69(1), the power to grant relief of the kind specified in s 69(2) and may grant orders of the kind specified in s 69(3).
13. [13]
    That the Court which made the order subject of the application for review (but not the individual judicial officer) needs to be named as a party was confirmed by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [91] per Gummow J, with whom Kirby J (at [153]) and Hayne J (at [180]) agreed; see also at [43] per McHugh J.^[3]  That is because the proceeding seeks a particular remedy – quashing an order – which is directed at the Court.  Whilst it is conventional for the decision-maker (the Court) in such circumstances to take no active role in the proceedings, and to effectively indicate its consent to any order the (reviewing) Court might make, save as to costs, it remains the case that in order to be properly constituted, the decision-maker (the Court) must be named.
14. [14]
    It does appear, from the two published decisions referred to in footnote 1, that this procedural matter may have been overlooked in previous proceedings; as it was when the applicant first sought to file the originating application in the present case and when I first considered the grant of leave to do so.  However, the point having now been raised and addressed by reference to a consistent line of authority, I am persuaded that the grant of leave should be on the basis of the amendments referred to in paragraph 5 above and the addition of the District Court of Queensland as a respondent.