Connolly v Spence, Minister for Police [2005] QCA 255

Court of Appeal (Qld)|2005-07-22|Before: de Jersey CJ, McMurdo P and Keane JASeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made

[2] The application sought an order under s 38 of the Judicial Review Act 1991 (Qld) for the provision of reasons. Section 38 relates back to s 32, which applies only where a relevant "decision" has been made, that is, a decision of an administrative character under an enactment (s 4). There was no such decision here.

[3] The applicant had called on the respondent to intervene in a police investigation, failing which he sought her reasons for not doing so (letter of 2 July 2004). There is, as I have said, no evidence of any decision: all that happened was that the respondent failed to respond to the applicant's demand.

[4] Sometimes a failure to make a decision can lead to an order under s 22. That provision was not relied on. In any case, s 22 concerns a decision, to which the Judicial Review Act applies, which a respondent is duty-bound to make. Decisions relating to the administration of criminal justice - for example, on the part of a Police Minister, whether or not to intervene in the criminal justice process - are expressly beyond the purview of the Judicial Review Act (s 31, Schedule 2).

[5] The primary Judge's dismissal of the application was on any tenable view plainly right; and the costs consequence equally plainly right.

[6] McMURDO P: I agree with Keane JA that the application for an extension of time to apply for leave to appeal should be refused with costs.

[7] The applicant sought to review a decision which was not a reviewable decision under the Judicial Review Act 1991 (Qld) ("the Act"). The applicant, who represents himself in this application, seems to accept that the learned primary judge was right to refuse the application for judicial review. He handed to this Court a copy of a letter sent by him to the Legal Services Commissioner complaining that he brought the primary application only on the advice of a Mr Bell, who is not a practising legal practitioner, and that he now believes that advice was wrong. The applicant wants only to challenge in this Court the unfavourable costs order made against him at first instance. The learned primary judge was entitled under s 50(b) of the Act to conclude that the primary application, which was wholly unsuccessful, did not disclose a reasonable basis for its being made. It follows that his Honour was entitled to exercise his discretion to order the applicant pay the costs of his unsuccessful application for judicial review. Even without considering the obstacle that the applicant has not obtained the primary judge's leave to appeal from an order as to costs only under s 253 Supreme Court Act 1995 (Qld), because there is no prospect that the applicant would be successful in any appeal against the costs order made, it would be futile to grant the application for an extension of time to apply for leave to appeal.

[8] KEANE JA: Mr Connolly seeks an extension of time within which to appeal against an order for costs made against him upon the dismissal of an application by him for orders pursuant to s 38 of the Judicial Review Act 1991 (Qld). It seems that he also seeks leave to appeal against that order, leave being required pursuant to s 253 of the Supreme Court Act 1995 (Qld).

[9] In my opinion, Mr Connolly's applications must be refused. In order to explain my reasons for this conclusion, it is necessary to refer briefly to the circumstances which have given rise to these applications.

[10] On 5 October 2004, Mr Connolly applied, pursuant to s 38 of the Judicial Review Act, to have the respondent answer a request for a statement of reasons in respect of the absence of a response by the respondent to the applicant's letter of 2 July 2004. That letter asked the respondent to take immediate action in respect of Mr Connolly's complaint of inadequate or improper police investigation in respect of a domestic violence complaint brought against Mr Connolly.

[11] The learned primary judge who heard and determined the application concluded that any decision by the respondent not to respond to Mr Connolly's request was not a decision to which Part 4 of the Judicial Review Act applied because it was not a decision to which that Act applied at all, the decision not being made "under an enactment" within the meaning of s 4 of that Act. Accordingly, the learned primary judge dismissed Mr Connolly's application.

[12] Mr Connolly does not seek to appeal against the dismissal of his substantive application. Rather he seeks to appeal against the costs order which the learned primary judge then made. That order was made pursuant to s 50 of the Judicial Review Act and, in particular, s 50(b). The learned primary judge concluded that, in addition to the circumstance that Mr Connolly was wholly unsuccessful in obtaining the relief which he sought, there was no reasonable basis for making the application.

[13] As I have said, Mr Connolly does not seek to challenge on appeal the dismissal of his application by the learned primary judge, but he does seek to challenge the correctness of that decision as part of his challenge to the conclusion that there was no reasonable basis for his application. In that regard, in my opinion, the learned primary judge was clearly correct in taking the view that the non-response by the respondent to Mr Connolly's letter did not involve a decision under an enactment. Even without the benefit of the decision of the High Court in Griffith University v Tang,[1] it was clear that Mr Connolly's application for judicial review was misconceived. A decision is a "decision under an enactment" for the purposes of the Judicial Review Act only if it is one for the making of which a statute either expressly or impliedly provides and to which the statute gives legal force or effect.[2] The decision not to respond to Mr Connolly's correspondence was not one for which any statute provided or to which any statute gave legal force or effect. While the decision not to respond meant that Mr Connolly did not obtain whatever benefit he was seeking, it brought about no change in relation to his legal rights.

[14] The decision in Griffith University v Tang,[3] fully confirms the correctness of the decision of the learned primary judge. Mr Connolly's attempt to rely upon this decision was, unfortunately, quite misconceived.

[15] It appears that Mr Connolly has been prompted, to some extent at least, to pursue a challenge to the order for costs made against him upon the dismissal of his application under s 38 of the Judicial Review Act by a concern on his part as to the quantum of the costs which the respondent seeks to recover pursuant to that order. Concerns as to whether those costs are excessive or unreasonable are matters for the officers of the court responsible for the assessment of the proper quantum of those costs.[4] Such concerns give no basis for an appeal against a judge's decision to award costs.

[16] The appeal for which Mr Connolly requires an extension of time has no prospects of success. It would be futile to grant the application for an extension of time. That conclusion affords a sufficient basis to dismiss each of Mr Connolly's applications and makes it unnecessary to consider whether Mr Connolly's applications were doomed to fail in any event because of his failure to obtain leave to appeal against an order "as to costs only" within the meaning of s 253 of the Supreme Court Act 1995 (Qld).

[17] In that latter regard, however, it is clear that the leave required by that section must be obtained from the judge who has made the order as to costs which is sought to be challenged.[5] It would not be open to this Court, even if it were otherwise disposed to do so, to grant Mr Connolly leave to appeal so as to remove the obstacle to a competent appeal posed by s 253 of the Supreme Court Act 1995 (Qld).

[18] For this reason as well, both applications must be dismissed.

[19] I would dismiss Mr Connolly's applications for an extension of time within which to appeal and for leave to appeal. I would order that Mr Connolly pay the respondent's costs to be assessed on the standard basis.

[2] Chittick v Ackland [1984] FCA 29; (1984) 1 FCR 254 at 264; ANU v Burns (1982) 43 ALR 25 at 32; ANU v Lewins (1996) 68 FCR 87 at 103.

[3] Griffith University v Tang [2005] HCA 7 at [89]; [2005] HCA 7; (2005) 213 ALR 724 at 745.

[4] Dudzinski v Kellow [1999] FCA 1665; Q110 of 1999, 23 November 1999 at [4].

[5] See Supreme Court Act 1995 (Qld), s 254; MAM Mortgages Ltd (in liquidation) v Dascam Pty Ltd [2002] QCA 187; Appeal No 5364 of 2001, 31 May 2002 at [3]; Emanuel Management Pty Ltd (in liquidation) & Ors v Foster's Brewing Group Limited & Ors [2003] QSC 484; SC No 3723 of 1999, 17 December 2003 at [11].

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