Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode

Oaky Creek Coal Pty Ltd v Brodsky & others

Unreported Citation:

[2017] QSC 188

EDITOR'S NOTE

This decision considers the circumstances in which the Supreme Court exercising its supervisory jurisdiction will grant an order in the nature of certiorari to set aside or quash an order made by the Magistrates Court.  The application for review concerned an order made by consent on an application under s 12 Peaceful Assembly Act 1992 (“PA Act”). The court held that the PA Act required the Magistrates Court to independently consider the exercise of the discretionary power to grant the order.  On the facts, by making the order by consent, the Magistrate failed to independently exercise its discretion and this failure constituted a jurisdictional error.  Accordingly, it was appropriate to grant relief in the form of an order in the nature of certiorari.    

Jackson J

5 September 2017

This matter concerned an application for a statutory order of review or an order in the nature of certiorari to set aside or quash an order made by the Magistrates Court at Rockhampton. [1].  The order was made on an application by the first respondent (the Council) under s 12 of the Peaceful Assembly Act 1992 (the “PA Act”) for an order refusing to authorise the third respondent (the Union) to hold a public assembly.  The applicant had not been a party to that proceeding.  The public assembly was a protest to be run over a period of days organised by the Union in support of a new enterprise bargaining agreement with the applicant. [8]–[10]. The order specified conditions that were to apply to the holding of the protest (the “conditions order”). [2]. 

Briefly, the scheme of the PA Act is as follows. At common law there is a right (or liberty) of peaceful assembly, albeit subject to limits. [34]–[35]. In Queensland, that right was confirmed and extended by ss 5 and 6(1) of the PA Act. [36]. Section 6 confers immunities upon participants in a public assembly, provided the assembly is an “authorised public assembly” within the meaning of s 7. [38]. Relevantly, a public assembly is taken to have been approved if a Magistrates Court has not made an order under s 12 refusing to authorise the holding of the assembly.

Justice Jackson explained that the order of the Magistrates Court was a judicial decision and therefore not amenable to a statutory order of review (see s 4 Judicial Review Act 1991 (the “JRA”)). [47]. However, this did not prevent the Court from making an order in the nature of certiorari under s 41 of the JRA, provided that the error was jurisdictional. [51]–[56].  Although the applicant was not party to the original application, the parties conceded that it had a “special interest in the subject matter of the application” and therefore had standing to bring the application for review. [60]–[62].

The applicant challenged the conditions order on the basis that the PA Act did not authorise the Court to make an order specifying conditions for an assembly to be held for longer than a day. [3]. The applicant relied upon references throughout the Act to “the day on which the assembly is proposed to be held” (emphasis added). [63]. His Honour ultimately rejected that construction on the basis of s 32C of the Acts Interpretation Act 1954 which provides that “words in the singular include the plural”, and which can only be displaced by a contrary intention (s 4). [65]?[71]. His Honour was not satisfied that there was any sufficient contrary intention. [71].

The applicant also challenged the conditions order on the basis that, because the Magistrate made the conditions order by consent, he failed to properly exercise the discretionary power conferred under s 12 PA Act. [87]. His Honour accepted that argument. [88]. The hearing in the present case had lasted two minutes, and “[n]othing was said that indicated that the court had properly instructed itself that, … it was required to exercise an independent discretion”. [95], [99].

His Honour next considered whether this error was jurisdictional. [100]–[103]. On balance, his Honour concluded that the error in this case amounted to a constructive failure to exercise jurisdiction and was, accordingly, jurisdictional error. [102]. In the circumstances, there was no reason for the Court to withhold relief in the form of an order in the nature of certiorari. [109].

The respondents submitted that the effect of an order in the nature of certiorari was to restore the parties to their respective positions before the conditions order was made. [115]. The respondents submitted that the effect of the PA Act was that the assembly would therefore be an authorised assembly within the meaning of s 7 PA Act because no order refusing the holding of the assembly had been made under s 12. [114]–[116]. In contrast, the applicant submitted that the Act should not be read as having this effect. [117].

Justice Jackson ultimately concluded that “it would contravene the limits on the proper role of statutory interpretation” to “refashion the text or meaning of” the Act so as to “avoid the inconvenient operation” of which the applicant complained. [119]. Accordingly, his Honour declared that the public assembly held was an authorised public assembly within the meaning of s 7 of the Act. [121].

J English

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.