DU v Jackson (DCJ)

The appellant brought an appeal against a decision made in the Trial Division refusing leave to issue an originating application for judicial review pursuant to r 15 Uniform Civil Procedure Rules 1999 (“UCPR”). A preliminary question which arose was whether the appeal was brought by way of rehearing or an appeal in the strict sense. Justice Dalton (with Bond JA giving separate but concurring reasons) held that the appeal was brought as an appeal in the strict sense in circumstances where the decision was interlocutory. Justice Dalton (with Bond JA giving separate but concurring reasons) allowed the appeal on the merits. The appellant had an arguable case in relation to a ground of review he had not identified in the originating application before the primary judge. Whilst this ground of review was identified belatedly, it would have been apparent on the material that was before the primary judge, and as such, it was appropriate for leave to be granted but the resulting proceeding be stayed until the appellant files an amended originating application relying on this ground of review only. Justice Williams dissented on both the preliminary question and the disposition of the appeal.

Bond, Dalton JJA, and Williams J

21 June 2024

Background

The Magistrates Court made a protection order for the benefit of an aggrieved individual under the Domestic and Family Violence Protection Act 2012 (the “DFVP Act”). [13]. The protection order named the appellant as the respondent. [13]. The appellant had opposed the protection order being made and unsuccessfully cross-applied for a protection order against the aggrieved individual. [13]. The appellant appealed to the District Court. [13]. The District Court allowed his appeal, however, only to the extent that the Magistrates Court had refused his cross-application for a protection order: see DU v TG [2022] QDC 247 (per Jackson KC DCJ). [13]. An order was made by the District Court remitting the cross-application to the Magistrates Court to be redetermined according to law. [13]. The appellant appealed to the Court of Appeal, however, his appeal was struck out as incompetent: see DU v TG [2022] QCA 225 (per Mullins P). [14]. The appellant applied for special leave to the High Court, however, special leave was refused: see DU v TG [2023] HCASL 79 (per Gageler and Jagot JJ). [14].

The most recent development in the appellant’s litigation was filing an originating application for judicial review of the decision which had been made by the District Court (the “originating application”). [15]. The originating application named Jackson KC DCJ as the first respondent and the Commissioner of Police as the second respondent. [15]. The registry having considered that the originating application appeared to be an abuse of process, frivolous or vexatious, referred it to the court pursuant to UCPR r 15(1). [15]. An order was made directing the registry to refuse to issue the originating application without leave of the court pursuant to UCPR r 15(2)(b). [15]. The appellant, accordingly, filed an application for leave for the originating application to be issued. [16]. The application for leave was refused: see DU v Jackson (DCJ) [2023] QSC 185 (per Martin SJA). [16]. The appellant applied for leave to appeal this decision in the Court of Appeal. [11]. Consistent with the Hardiman principle, the first respondent did not participate in the hearing of the application or the appeal save as to the question of costs. [12].

Whether the appeal was an appeal by way of rehearing or an appeal in the strict sense

A preliminary question which arose was whether the primary judge’s decision was final or interlocutory, the determination of which, clarified the nature of the appeal brought by the appellant for the purpose of UCPR r 765. [22]. If the primary judge’s decision was other than a final decision, the appeal was an appeal in the strict sense: see UCPR r 765(2). [22]. However, if the primary judge’s decision was a final decision, the appeal was by way of rehearing: see UCPR r 765(1). [22]. It was held that the primary judge’s decision was interlocutory, and as such, the appeal had been brought by way of an appeal in the strict sense: see [1]–[6] (per Bond JA) and [23]–[46] (per Dalton JA); cf. [114]–[146] (per Williams J dissenting). To the extent De Innocentis v Brisbane City Council [1999] QCA 404; [2000] 2 Qd R 349 and Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262 suggested the contrary, the reasoning in these cases was plainly wrong and should not be followed: see [2] (per Bond JA) and [24]–[42] (per Dalton JA); cf. [126]–[131], [145] (per Williams J dissenting).

Whether the primary judge erroneously refused the application for leave

The primary judge approached the appellant’s application for leave on the basis that it was only in the clearest of cases that leave could be refused to issue an originating application of the kind filed by the appellant on the basis that it discloses no reasonable basis to judicially review a decision. [1], [6] (per Bond JA); [50]–[51] (per Dalton JA); [117]–[118] (per Williams J). For leave to be granted to issue the originating application, it had to disclose a ground of review, or grounds of review, and sufficiently articulate the nature of the ground or grounds and how the ground or grounds were said to support the making the order or orders sought. [1], [6] (per Bond JA); [50]–[51] (per Dalton JA); [117]–[118] (per Williams J). All members of the Court of Appeal agreed that the appellant could not demonstrate that the primary judge had fallen into error in concluding that the originating application before his Honour disclosed no reasonable basis to judicially review the District Court’s decision: see [1], [6] (per Bond JA); [54]–[66] (per Dalton JA); [167]–[171], [191], [199], [205], [212], [217], [219]–[220] (per Williams J).

However, in oral argument, the appellant identified a new ground of review which had not been disclosed in the originating application before the primary judge, namely, that when the first respondent heard his appeal to the District Court, his Honour did not conduct the appeal as an appeal by way of rehearing (the “new ground of review”). [67]. Whilst the new ground of review had not been disclosed in the originating application before the primary judge, it would have been apparent on the material that was before the primary judge: see [6], [69]–[71]. Justice Dalton held that the new ground of review was arguable, indeed, her Honour was prepared to conclude that it was likely that the way the first respondent conducted the appeal amounted to a jurisdictional error which could give rise to declaratory relief or relief in the nature of certiorari. [72]–[93]. Justice Bond agreed that the new ground of review was arguable, but preferred not to express a conclusion about whether it had any merit. [7]–[8]. Justice Williams, dissenting, disagreed that the new ground of review was arguable. [221]–[239].

Disposition

The application for leave to appeal was allowed, the appeal was allowed, the order of the primary judge refusing leave to issue the originating application was set aside, and in lieu thereof, leave was granted to issue the originating application but the resulting proceeding be stayed until the appellant files an amended originating application relying on the new ground of review only. [10], [105].

D Kerr of Counsel