Pauga v Chief Executive of Queensland Corrective Services

Counsel for the Third to Seventh Respondents: The Third to Seventh Respondents did not appear

Counsel for the Eighth Respondent: Mr M McKechnie with Ms G Devereaux

Solicitor for the Eighth Respondent: Commonwealth Attorney-General's Department

Counsel for the First Intervener: The First Intervener did not appear

Counsel for the Second Intervener: Ms S Spottiswood

Solicitor for the Second Intervener: Crown Law

AND: CHIEF EXECUTIVE OF QUEENSLAND CORRECTIVE SERVICES First Respondent

BRISBANE MAGISTRATES COURT Second Respondent

TINA PREVITERA (and others named in the Schedule) Third Respondent ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA First Intervener ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Second Intervener

order made by: COLVIN J DATE OF ORDER: 5 April 2022

1. The second respondent be removed as a party to the proceedings.
2. There be liberty to any party to apply for any order as to the costs of and incidental to the inclusion of the second respondent as a party. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Pauga was committed to prison on 9 July 2021. The magistrate who issued the warrant purported to do so under s 19 of the Extradition Act 1988 (Cth). Mr Pauga disputes the validity of the warrant of commitment. He claims that he is being unlawfully detained. He seeks an order that he be released from custody or, in the alternative, the issue of a writ of habeas corpus. Part of the case that Mr Pauga seeks to advance is to the effect that after his arrest he was not lawfully remanded in accordance with the provisions of the Extradition Act. He says that any remand was required to be ordered by a magistrate acting administratively as a persona designata and not judicially. He says that in the events which occurred after his arrest he was dealt with by court proceedings and by the exercise of judicial power rather than administratively. 2 As part of his application, Mr Pauga contends that even though orders were made by magistrates for him to be remanded in custody, the documents that were subsequently issued were issued by officers of the Brisbane Magistrates Court and the issue of those documents were not the acts of the magistrates (irrespective of whether orders were made by them acting as personae designate). In written submissions it was said that the relevant 'materials' in the present case 'constitute the records of the Brisbane Magistrates Court by virtue of orders under sign and seal of the Registrar (which are not conceived or acknowledged to be orders of the Magistrate) and orders through the Form 44 documents'. It will be necessary in due course to refer to these documents. At this point it is sufficient to note that for the purpose of advancing his claim concerning the authority with which the documents were issued, Mr Pauga has named the Brisbane Magistrates Court as the second respondent to his application. For the purposes of other aspects of his case, he has also named each of the relevant magistrates as individual respondents. 3 The Attorney-General of Queensland has intervened in the proceedings to assist the Court concerning the status of the second respondent as named and whether the Brisbane Magistrates Court can be named as a party to the proceedings. It is accepted by both Mr Pauga and the Attorney-General that there are Magistrates Courts in Queensland and that there is statutory provision for those Magistrates Courts to convene within districts. It is also common ground that the Magistrates Courts of Queensland have not been constituted as a single court of record as has been done in other States of Australia. 4 The application in this matter was listed for final hearing commencing on 14 March 2022. The hearing was adjourned to a date to be fixed: Pauga v Chief Executive of Queensland Corrective Services (No 2) [2022] FCA 252. At the time that the adjournment was ordered, the issue whether the Brisbane Magistrates Court should be removed as a party was listed for determination on 16 March 2022 instead of being deferred with all other issues to be considered at the adjourned hearing.

The relevant legislative provisions 5 There are three enactments in Queensland that deal with the constitution of Magistrates Courts and the appointment of magistrates and other officers of Magistrates Courts. They are the Justices Act 1886 (Qld) (1886 Act); the Magistrates Courts Act 1921 (Qld) (1921 Act); and the Magistrates Courts Act 1991 (Qld) (1991 Act). 6 By the terms of Schedule 1 to the Acts Interpretation Act 1954 (Qld), the term 'Magistrates Court' means a Magistrates Court established under the 1886 Act and the term 'magistrate' means a magistrate appointed under the 1991 Act. 7 The 1886 Act provides for the Magistrates Courts as formerly established in Queensland to continue in existence and for each Magistrates Court 'to have and use a seal with the words "Magistrates Court of Queensland"' and also that each Court may have other seals 'required for the business and administration of the court': s 22. The 1886 Act also provides for the appointment of districts 'for the purposes of Magistrates Courts' and the appointment of places for holding Magistrates Courts within districts: s 22B(1). It provides that '[t]wo or more Magistrates Courts may be held at the same place': s 22B(2). Therefore, it is not the case that the legislation contemplates a single Magistrates Court in each district. The 1886 Act also provides for the appointment of a clerk of the court at one or more places who may discharge the functions of that office at each place for which the clerk is appointed: s 22C. There may also be a principal clerk of courts 'appointed for all Magistrates Courts in Queensland': s 22D(3). Complaints are heard and determined by 'a Magistrates Court': s 27. Although a Magistrates Court may be required to be constituted by two or magistrates, 'when a magistrate is present at a place appointed for holding Magistrates Courts and is available to constitute any such court to be held at that place the court shall be constituted by the magistrate alone': s 30(2). 8 The 1921 Act provides that a clerk of court under the 1886 Act 'is the registrar of each Magistrates Court held at each place for which the clerk is appointed': s 3. The principal clerk of courts is the principal registrar: s 3A. A registrar of a Magistrates Court may delegate the registrar's functions to an appropriately qualified public service employee: s 3B. Section 14 of the 1921 Act provides: Each Magistrates Court shall be a court of record, and the judgment thereof may be set up as a defence in any action brought in any court of law in Queensland. 9 Section 16 provides: Every action within the jurisdiction of a Magistrates Court for hearing and determination shall be heard and determined by a magistrate sitting alone provided that, where the rules permit, an action may be heard and determined by a registrar, not being a police officer, who shall, subject to and in accordance with the rules, have the jurisdiction and powers a magistrate has for the purpose. 10 The 1991 Act provides for the appointment of magistrates by the Governor in Council 'for transacting the business of the Magistrates Courts': s 5(1). As to those appointments, s 5(3) provides: The appointment of a magistrate must state and has effect to decide - (a) the place where the magistrate is first to constitute a Magistrates Court appointed under the Justices Act 1886, section 22B (1)(c) and the period, not longer than 1 year, the magistrate is to constitute a Magistrates Court at the place; and (b) the place, which may be the place mentioned in paragraph (a), where the magistrate is next to constitute a Magistrates Court and the period, not longer than 5 years, the magistrate is to constitute a Magistrates Court at the place. 11 The 1991 Act has numerous provisions that that refer to a magistrate constituting a Magistrates Court at a particular place: e.g. s 5(4), s 5(5), s 12(2)(a), s 21, s 22 and s 23. 12 There is also provision in the 1991 Act for the appointment of a Chief Magistrate and a Deputy Chief Magistrate. The Chief Magistrate 'is responsible for ensuring the orderly and expeditious exercise of the jurisdiction and powers of Magistrates Courts': s 12(1). The Chief Magistrate decides the magistrates 'who are to constitute the Magistrates Court at particular places appointed under the [1886 Act]' (s 12(2)(a)) and gives 'directions about the practices and procedures of Magistrates Courts' (s 12(2)(b)). Every magistrate must comply with every reasonable direction or requirement given or made to the magistrate by the Chief Magistrate: s 41(1). 13 The 1991 Act establishes an advisory committee to make, in conjunction with the Chief Magistrate, a transfer policy for magistrates and to make transfer recommendations: s 16. 14 There is a provision in s 8 of the 1991 Act that makes clear that a magistrate may exercise jurisdiction, powers and functions 'throughout the state': s 8. There is also provision for the appointment of judicial registrars: s 53. A judicial registrar is an officer of the Magistrates Courts (s 53E) and may constitute a Magistrates Court in certain instances (s 53G) and can make decisions that are taken to be a decision of a magistrate for certain purposes (s 53L). 15 Regulations cited as the Justices Regulation 2014 (Qld) have been made under the 1886 Act. They specify in Schedule 1 the names of districts appointed for the purposes of Magistrates Courts and the areas of districts for which appointment is made: s 17(1). The Schedule refers to the 'Brisbane Magistrates Court District' and specifies the names and areas of divisions within that district: s 17(1)(c). It also specifies 'the places appointed for holding Magistrates Courts in the districts and divisions'. The Schedule specifies in item 4(1) that there is a district named the 'Brisbane Magistrates Court District'. It says that the area of the district is the City of Brisbane. It specifies the Central division of the Brisbane Magistrates Court District. 16 These provisions identify the districts (and divisions) to which magistrates may be appointed in accordance with the provisions that have been described. They do not constitute a court to be known as the Brisbane Magistrates Court. Rather, as has already been observed, Magistrates Courts are constituted by magistrates in particular places all over Queensland. When constituted they are separate courts. There may be a number of such courts convened in Brisbane at any time. 17 Further, the Chief Magistrate is not appointed as the senior magistrate of a single court that is constituted throughout the State. The provisions concerning the appointment to that office maintain the characteristic of Magistrates Courts in Queensland as being constituted by a magistrate or magistrates in a place. 18 Therefore, there is no Court recognised or established by the relevant statutory provisions that is described as the Brisbane Magistrates Court.

The documents alleged to be documents of the Brisbane Magistrates Court 19 Mr Pauga's substantive application focusses upon documents that have been issued following hearings concerning his extradition that have taken place before magistrates. It seeks orders quashing documents of three kinds that are said to be documents issued by the Brisbane Magistrates Court: (1) a bench charge sheet; (2) documents headed 'Form 44 Verdict and Judgment Record'; and (3) various documents recording orders made in a matter between the Commonwealth Attorney-General and Mr Pauga. Each of the documents is said to form part of the record for the purposes of certiorari. In addition to a contention being advanced to the effect that the documents are not a lawful basis for his detention, Mr Pauga also seeks relief quashing the documents. 20 The identification of the Brisbane Magistrates Court as a party is said to be supported by the contents of the above documents as well as certain evidence that Mr Pauga proposes to lead on the substantive application concerning building signage, the arrangements for the registry, the publication of court lists and the form of documentation issued to parties to court proceedings. 21 Reliance is proposed to be placed upon the contents of the documents and the other evidence to support the proposition that the Brisbane Magistrates Court exists as a court whose actions are amenable to judicial review proceedings of the kind commenced in this Court.

Mr Pauga's proposed case against the Magistrates Court of Brisbane 22 The submissions advanced for Mr Pauga to support the naming of the second respondent as the Brisbane Magistrates Court were put on the basis that it was not appropriate to identify the relevant party the subject of Mr Pauga's application as some form of words such as the Magistrates Courts of Queensland or a Magistrate as the Magistrates Court of Queensland. A description of that kind was said to be inappropriate to identify the respondent to whom Mr Pauga seeks to have this Court direct relief by way of certiorari. Precisely why that is so was, with due respect to counsel, difficult to understand. It seemed to be because the contention to be advanced is that the three types of documents in respect of which relief is sought were neither the documents of the magistrates acting as personae designata nor the documents of those magistrates as a Magistrates Court of Queensland. Rather, they were the documents of the officers of some other court being the Brisbane Magistrates Court. 23 Accordingly, this is not a case in which there is common ground about the identity of the court that the applicant seeks to join and the dispute is confined to the proper name of that court. Any such debate would be entirely arid because all concerned would understand the court in respect of which relief was sought. Rather, the submissions for Mr Pauga maintained that the record that was to be quashed was the record of a court that was not a Magistrates Court of Queensland constituted by a particular magistrate. Rather, the claim made appeared to be to the effect that an officer of some other court that existed and included the acts of registrars and bench clerks had been responsible for the issue of the three types of documents. It was said that the court had some form of origin in unspecified acts of the Executive. It was then said that as the documents had that character their issue was not by actions undertaken for the purposes of the Extradition Act and therefore did not provide proper authority for the detention of Mr Pauga.

No Brisbane Magistrates Court of the kind alleged 24 Having regard to the legislation that has been enacted in Queensland and the absence of any coherent identification of the means by which the court claimed to be the Brisbane Magistrates Court could be and was established, there is no room for the possibility that there may be a magistrates court that is not a Magistrates Court of Queensland. All magistrate courts in Queensland are constituted by magistrates. Certain actions of registrars can, by express legislative provision, take effect as if they were the actions of a magistrate court constituted by magistrates. However, no de facto Magistrates Court of a different kind may be brought into existence. The evidence to be relied upon by Mr Pauga to support his claim against the Brisbane Magistrates Court is not a means by which he can establish the existence of a court with that name in respect of which the actions of officers other than magistrates may be said to be the actions of the court. 25 I note, in any event, that the three types of documents the subject of the claim are expressed in terms that are consistent with the legislation concerning the Magistrates Courts of Queensland. They are headed 'In the Magistrates Court of Queensland at Brisbane'. The seal used on them is 'Magistrates Court Brisbane', not Brisbane Magistrates Court. A seal of that kind is contemplated by the 1886 Act. It indicates the place of the Magistrates Court of Queensland. There is also reference at the point where the seal is affixed to many of the documents to 'Registrar, Brisbane Magistrates Court'. However, in context, that language is explicable by the fact that each registrar is a registrar of the Magistrates Courts at a particular place and the district and divisional structure concerning the places where Magistrates Courts may be convened. 26 The claim that the documents were issued judicially could not be aided by the joinder of a court that does not exist. 27 For those reasons, it has not been demonstrated that the Brisbane Magistrates Court is a court that exists and there is no basis for the joinder of a court with that name to the proceedings. The case having been articulated on the basis that the Brisbane Magistrates Court was not intended to be a way of naming a Magistrates Court of Queensland, the appropriate order is for the second respondent to be removed as a party.

Arguments by reference to legal personality 28 As there was significant reference by the Attorney-General to the authorities concerned with whether a party must be shown to have a separate legal personality in order to be named as a party to legal proceedings, I indicate my view that those authorities must be placed in the particular legal circumstances where judicial review is sought of action by a court, judge or officer of a court. In such cases, even though the Court is not a natural person or an artificial person, it is a juridical entity that may still be named as a party. It is common for such a course to be followed: see, for example, Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531; Jago v District Court of New South Wales (1989) 168 CLR 23; CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia [2008] FCAFC 162; (2008) 170 FCR 426; Little v Registrar of the High Court (1990) 24 FCR 391; and Palmer Leisure Coolum Pty Ltd v Magistrates Court of Queensland [2019] QSC 8. The precise form in which that may be appropriate will depend upon the circumstances.

Further submissions 29 After the hearing concerning the status of the claim against the Brisbane Magistrates Court, Mr Pauga sought to advance further written submissions. No objection was raised by the Attorney-General. Precisely what is sought to be raised by the further submissions is, with due respect, obscure. 30 The submissions referred, without explanation, to various statutory provisions. Nothing in the provisions identified detracts from the analysis of the legislative provisions already recorded in these reasons. 31 In addition, for the first time, submissions were advanced referring to a list of cases in which reference had been made in some way to the Brisbane Magistrates Court. Two categories were identified: (a) those in which 'Brisbane Magistrates Court' was said to have been used to identify a court; and (b) those in which 'Brisbane Magistrates Court' was said to have been used in 'the headnote'. 32 As to (a), nine cases were identified, the earliest being in 1993 and the latest in 2020. As no submission was advanced as to the alleged significance of the use of the name in each case it has been necessary to refer to the identified paragraphs to determine whether they have any significance for present purposes. A consideration of eight of those cases shows that there are occasions when the Court of Appeal in Queensland has referred to the Brisbane Magistrates Court in the course of reasons that have no regard to the appropriateness of that term as a description of the magistrates court to which reference is being made by the Court. There is no legal significance to the use of such terminology in that manner. It is a form of expression that is apt to describe a Magistrates Court of Queensland that is convened in Brisbane. In none of those cases was it maintained (as it is here) that there was a court that was not a Magistrates Court of the kind described in the relevant legislation that was the Brisbane Magistrates Court. 33 As to the ninth case, it was the decision in Jones Leach Lawyers Pty Ltd v Crosby (No 1) [2020] QMC 14 at [10]. The identified paragraph forms part of the reasons where the magistrate is reciting the history in a case in which a party has applied for a review of a costs assessment. In the course of the narrative there is a reference to an application and affidavit being emailed 'to the Brisbane Magistrates Court'. It is a term that is used to differentiate certain actions from those taken in the 'Gatton Magistrates Court'. 34 As to (b), eighteen cases were identified between 2006 and 2018. Having regard to those decisions, what is described as the 'headnote' is in fact part of the heading used for written reasons by the magistrate in each case. All of the reasons are headed 'Magistrates Court of Queensland'. They have provision for the identification of the division, the originating court and where the reasons were delivered. In various instances the term 'Brisbane Magistrates Court' is used in the heading next to one or more of these descriptions. A cursory examination of the published reasons for decision of the Magistrates Court of Queensland shows that there is no consistency in such usage and there is frequent use of the place name to indicate the court or where the reasons were delivered. In short, there is nothing to indicate any legal significance to such usage for present purposes. 35 It was also submitted that 'various usages and names are applied to the court in Powell v Chief Executive Officer of Customs [2006] QDC 184'. It was pointed out that 'Brisbane Magistrates Court' was used at [18]. However, early in the reasons in that case, McGill DCJ said (at [2]): Ordinarily the Magistrates Court at Brisbane would not have jurisdiction to try a summary offence alleged to have occurred in Sydney. Prima facie a complaint for a simple offence or breach of duty is to be heard and determined at a place appointed for holding magistrates courts within the district within which the offence or breach of duty was committed. However, the offence charged was an offence against Commonwealth law and hence one in respect of which the jurisdiction of the Magistrates Court in Brisbane depended on Commonwealth legislation. 36 Plainly, in context, there is no significance being given to the terminology Brisbane Magistrates Court. It is a way of referring to the Magistrates Court that had been convened in accordance with the legislation. 37 It was also submitted that various Magistrates Courts were identified in Department of Transport and Main Roads v Blenner's Transport Pty Ltd [2015] QMC 9 at [12]. In that paragraph of the reasons, the Magistrate set out a list provided by the complainant of breaches alleged to have been committed 'in different court districts'. Under the heading 'Court' the table lists the names of various districts. The application made was for all proceedings to be heard in Brisbane. The transfer application was refused. The decision is entirely consistent with the district arrangements concerning Magistrates Courts in Queensland. 38 Beyond listing the above cases, the supplementary submissions provided no indication of the significance that was sought to be drawn from such references. No point was sought to be made by reference to them. It is unsurprising that terminology such as Brisbane Magistrates Court may be used in such contexts. It is a convenient way to refer to a Magistrates Court of Queensland that is convened in Brisbane. 39 The Court should not have been burdened with having to consider these patently irrelevant materials, especially by way of application to adduce further submissions after the hearing concerning the status of the Brisbane Magistrates Court had been concluded. The question whether there is a distinct court, separate from the Magistrates Courts of Queensland that is known as the Brisbane Magistrates Court could never turn upon such references.

Footnote concerning relevance of contentions concerning Brisbane Magistrates Court 40 Finally, I note, with due respect to those acting for Mr Pauga, that the reason for the insistence upon pursuing a claim against the Brisbane Magistrates Court is not apparent. It is common ground that the actions in the present case are to be justified, if at all, as actions of magistrates acting personae designata. The principal respondents answering the present application in this Court are the Chief Executive of Queensland Corrective Services as the party responsible for holding Mr Pauga in custody and Samoa as the party who is seeking the extradition of Mr Pauga. The magistrates who have been joined have all indicated that they will abide the outcome (although it has been necessary for them to appear in order to address matters concerning various interlocutory orders that have been sought against them). 41 In supporting the lawfulness of the detention of Mr Pauga, the respondents rely upon actions which they say accord with the requirements of the Extradition Act. Indeed, it is solely by reference to the provisions of the Extradition Act that the detention of Mr Pauga is sought to be justified. It follows that if the relevant instruments which are relied upon to justify the detention of Mr Pauga do not conform to the requirements of the Extradition Act in a manner that affects their validity and the ongoing lawfulness of the detention of Mr Pauga depends upon the validity of that instrument then the lawfulness of the detention of Mr Pauga will not be established. To the extent that the claim made by Mr Pauga is that the acts were judicial in character then in order to determine that claim it would appear to be unnecessary to determine whether they were the acts of something called the Brisbane Magistrates Court or the acts of a Magistrates Court of Queensland. To the extent that they are said to be something else, their character has not been articulated. 42 None of the respondents seek to justify the detention of Mr Pauga on the basis that there is an order made by or a document issued by something called the Brisbane Magistrates Court. Mr Pauga himself seeks relief quashing the relevant documents. So, even though he would attribute them to something that he says is the Brisbane Magistrates Court he would deny their validity. Precisely what is the significance of seeking to attribute the documents to something called the Brisbane Magistrates Court has not been articulated and is not readily evident given the relief that is sought. In any event, for reasons that have been given, there is no such court that is separate and distinct from a particular Magistrates Court that may be convened in Brisbane by a duly appointed magistrate for that district. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.

SCHEDULE OF PARTIES SAD 135 of 2021 Respondents Fourth Respondent: PAUL BYRNE Fifth Respondent: ANTONY GETT Sixth Respondent: ROSEMARY GILBERT Seventh Respondent: BELINDA MERRIN Eighth Respondent: SAMOA