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Morrison Construction v Commissioner of Police Service & Ors

 
Unreported Citation: [2020] QSC 191
EDITOR'S NOTE

This case considered whether the jurisdiction of the Supreme Court had been impliedly excluded by a regime concerning the return of property in the possession of police in the Police Powers and Responsibilities Act 2000. Brown J considered that clear words would be needed to exclude the Supreme Court’s jurisdiction, which was not the case here. Further, the PPRA regime had not impliedly excluded the Supreme Court’s jurisdiction because there were a number of indications that it did not confer an exclusive jurisdiction on the Magistrates Court.

Brown J

26 June 2020

Background

In late 2019 the applicant found money on a building site which it owned. The money was originally handed into the police. In January 2020, the applicant commenced a proceeding in the Supreme Court, seeking a declaration that it was the lawful owner of the money and entitled to it. [1]. At a directions hearing, Dalton J stayed the proceedings so that, amongst other things, the parties could consider whether the Supreme Court had jurisdiction to hear the matter. [3].

By this application the applicant sought to have the stay vacated. It argued that the Supreme Court did have jurisdiction in the matter. [4]. The Queensland Police Service (“QPS”), and another respondent who claimed to be entitled to the money, argued that the matter fell within the exclusive jurisdiction of the Magistrates Court under the Police Powers and Responsibilities Act 2000 (“PPRA”). [5].

The PPRA regime / the exclusivity argument

The PPRA contains a number of provisions in Pt 3 of Ch 21 which deal with property which comes into the possession of police officers in the course of their duties. [8]. Relevantly, pursuant to s 693 a person who claims to have an interest in property in the possession of police may apply to the Magistrates Court for an order that it be returned to them. [13]. Section 694 provides for an application to be made by a police officer to the Magistrates Court where there is a dispute between two or more persons who claim to be the owner of the property. [14].

The question for the Court was whether the PPRA regime excluded the jurisdiction of the Supreme Court to hear this matter. The QPS submitted that the applicant’s proceedings would “undermine” the regime in the PPRA, and that the proceedings should be struck out so that it could proceed to commence a proceeding under s 694 PPRA in the Magistrates Court. [18]. The eighth respondent contended that the PPRA regime provided an “exclusive process for dealing with property in the possession of the police service” and thereby impliedly excluded the jurisdiction of the Supreme Court. [19].

Whether the PPRA regime excluded the Supreme Court’s jurisdiction

Brown J observed that in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, Gibbs J had stated that “the right of a subject to apply to the court for a determination of his rights will not be held to be excluded except by clear words”. [21].

The PPRA regime contained no express statutory provision excluding the jurisdiction of the Supreme Court, nor expressly providing that it conferred exclusive jurisdiction on the Magistrates Court. Accordingly, any exclusion of the Supreme Court’s jurisdiction could only be implied. [26]. In her Honour’s view, the PPRA regime did not impliedly exclude the Supreme Court’s jurisdiction for a number of reasons, including that:

  • The PPRA’s Explanatory Memorandum indicated that it consolidated precursor provisions in the Justices Act 1886. In McCullough v Otto [1996] QCA 507, the Court of Appeal found that the precursor regime “did not create an exclusive jurisdiction”. [33.3].
  • The PPRA regime contemplated that the relevant property may be given to a person who was not “the true owner”. Clear words would have been required if the legislative intent was to preclude the true owner from asserting legal rights to the return of the property thereafter. This indicated that the PPRA regime did not create an exclusive jurisdiction. [33.5].
  • The provisions in the PPRA were not broad enough to cover all potential actions that may be taken to recover possession of the property. For instance, a party may seek to recover property which has been seized unlawfully by police. The PPRA did not cover that circumstance, further indicating that it did not create an exclusive jurisdiction. [33.7]. 

Although her Honour concluded that the PPRA regime did not exclude the jurisdiction of the Supreme Court in matters seeking the return of property in the possession of police (such as in the present proceedings), she considered that the existence of the regime was relevant to whether “declarations should be made, as opposed to can be made”. [34].

In the result, her Honour vacated the stay on the proceedings. [37].

W Isdale