Stubberfield v Webster [1995] QSC 182

Prior to the introduction of the Judicial Review Act 1991 an application for certiorari in circumstances like the present would almost certainly have been considered inappropriate. Ever since the Magistrates Courts were established in Queensland in 1921, s. 11 of the Magistrates Court Act has provided in substance and still provides:

"11. (1) Subject to this Act, all judgments and orders made by the Court shall be final and conclusive.

(2) Except as provided by this Act, or by or pursuant to any other Act now in force or hereafter to be passed a judgment given by a Court, or an action brought before it or depending therein, shall not be removed by appeal, motion, writ of error or certiorari, or otherwise into another Court."

The Magistrates Court Act contains a regime for appeals which were obviously intended to be the exclusive means by which the judicial decisions of magistrates might be controlled and corrected. Thus s.11AB provides a right of appeal to District Courts. Where the amount involved is $5000 or less, an appeal lies by leave only, which is not to be granted unless a District Court Judge "is satisfied that some important principle of law or justice is involved" (s.11AB(2)(a)). There is a different regime with respect to claims for less than $5000 where a plaintiff specifically elects to have the case heard as an action for a small debt. In such cases there is no appeal process at all. There is also a privative clause but it is not as extensive as s.11. Prerogative review remains available if there was no jurisdiction or if there has been a denial of natural justice. (Magistrates Courts Act s.11AE(1); cf. Small Claims Tribunals Act 1973 ss. 18, 19.)

Curiously the Judicial Review Act seems to have changed the system in a fundamental way, not only for the review of decisions of magistrates but also for review of decisions of the District Court. Under the District Courts Act 1967 there are appeal provisions that are similarly intended to be the exclusive means of correction of error. Under s.27 of the District Courts Act 1967 judgments in that court are not to be "removed by appeal motion writ of error or certiorari or otherwise into another Court, save and except in the manner and according to the provisions of this Act".

The effect of ss.11, 11A and 11AE of the Magistrates Courts Act and s.27 of the District Courts Act has been removed by s.18 of the Judicial Review Act 1991. It provides:

"18 (1) Subject to sub-section 2, this Act has effect despite any law in force at the commencement of this Act;

(2) This Act does not affect the operation of a provision mentioned in Schedule 1."

Schedule 1 lists those statutory provisions which "continue to provide for non-review of decisions". Schedule 1 makes no reference to ss.11, 11AB or 11AE of the Magistrates Court Act, or to s.27 of the District Courts Act, although it may be noted that s.19 of the Small Claims Tribunal Act 1973 is included.

Plainly the object of s.18 is to continue in force only those privative clauses mentioned in Schedule 1. The availability of judicial review of quasi judicial process, when the protection of such process is not preserved under Schedule 1, has been recognised in Westpac Banking Corporation v. Commissioner of Stamp Duties [1994] 1 Qd.R. 99, 106 (review of determinations of Commissioner of Stamp Duties), and Stevenson v. Wenck (No. 390 of 1994, 21 October 1994, Mackenzie J) review of (Land Court decision under the Water Resources Act).

Although it is unlikely that such a result was intended, it is quite clear that under the present law any disgruntled litigant in the Magistrates Court or District Court has the right to bring an application for review seeking a prerogative order under s.43 of the Judicial Review Act.

In cases where a right of appeal exists, such as matters in the Magistrates Court involving over $5000, or matters in the District court involving $10,000 or more, it would seem that applications for prerogative review will invariably be dismissed under s.12(b) of the Judicial Review Act on the ground that adequate provision is made by a law other than the Judicial Review Act under which the applicant is entitled to seek a review of the matter by another court. Jurisdiction to dismiss such an application would also arise under s.13. However the question of dismissal on that ground in cases like the present, where an appeal lies only by leave, is arguable. Quite obviously there is a potential for a flood of applications for judicial review in all claims in the Magistrates Court of $5000 or under, all claims in the District court of $10,000 or under, and all interlocutory orders in either court. There are very many such claims and orders made every day.

Whether the application ought to be dismissed under s.12

This depends upon whether adequate provision is made by the Magistrates Court Act for review of the decision in question. The appeals system under which leave is needed for the bringing of any appeal against a judgment for a small sum has been with us for many years. The desirability of reviews where the cost of the necessary legal resources will generally exceed the amount of the alleged error is clearly questionable. This is especially true of second and third phase litigation such as appeals. I have little doubt that in our present society legislation limiting appeals in such cases is desirable, especially when it gives the appeal court a discretion to hear cases when a special point of principle or justice can be perceived. The monetary level at which such restrictions should be imposed will always be debatable, and that is a matter of policy for parliament.

The present limitations have been in place (with varying monetary amounts) since the initial passage of the Magistrates Courts Acts in 1921. It may be argued that the legislature must have intended to broaden the possibility of review of such matters when it introduced the Judicial Review Act in 1991, but I can find no such intention in the debates or in the EARC reports (primarily "Judicial Review of Administrative Decisions and Actions", December 1990) upon which the legislation was substantially based.

Mr Stubberfield submitted that the necessity of obtaining leave makes the appeal provided by s.11AB(2) an unsatisfactory remedy. He submits it would be difficult to satisfy the District Court that some important principle of law or justice is involved, that sometimes two hearings are necessary, and the applicant is obliged to provide $1600 security or such varied sum as the Registrar orders (s.11AB(3)). But that money is not necessarily lost - it is merely security for whatever he might have to pay the respondent if the appeal is unsuccessful. The security sum would be refundable if the appeal were successful. Of course some or all of it would be lost if leave were not obtained. However he would also be in jeopardy in this court for costs if unsuccessful, and I do not regard the security point as carrying much weight. He also submitted that there is greater delay involved in having an appeal heard in the District Court than in having a judicial review application heard in the Supreme Court. I do not think that temporary situations such as current levels of delay, which may vary from year to year, are particularly relevant in the comparison of the available remedies, at least (as in the present case) when the delay periods are not substantial. Such trends may be reversed over a comparatively short time.

Comparison of the two remedies is very difficult, if not impossible, because I am not comparing like with like. In some respects the present remedy would seem preferable from an applicant's point of view, mainly because (apart from the present point) it is brought by right and not by leave. Whether it is a cheaper or speedier remedy I have considerable doubt. On the other hand the present remedy is plainly inferior inasmuch as it is confined to review for jurisdictional error, which has a very limited scope, falling well short of the rehearing that would be expected if leave were obtained to appeal. Many of the points which Mr Stubberfield seeks to raise upon this review are plainly not points that go to jurisdiction. Among those is his complaint that he was refused leave to read an affidavit or to refer to it for the purposes of refreshing his memory when he was giving oral evidence. One has only to read the application for review in order to see that what Mr Stubberfield really wants is a full appeal capable of reviewing the evidence, various rulings, and several aspects of the reasons for judgment.

Had Mr Stubberfield taken the matter to the District Court, a good argument was available to him that an important principle of law was involved. The case raises quite acutely the right of solicitors to deliver a bill at the same time insisting on the right to deliver a further higher bill if the original one is not paid within a stated time. The authorities tend to suggest that if a solicitor does this, and later produces a higher bill in taxable form, the amount recoverable under it is limited to the amount demanded in the first bill (Re Thompson (1885) 30 Ch.D. 441; Re Carven [1845] EngR 881; (1881) 8 Beav 436; re Holroyde & Smith (1881) 43 L.T. 722; re Edwin Sutherland & Co's Bill of Costs [1971] Qd.R. 318, 324, 330). However the statements in the cases are not entirely consistent in relation to the circumstances in which a condition attached to an initial bill may relieve a solicitor from the usual consequences of its delivery. I apprehend the rendering of lump-sum bills containing conditions of this kind to be a fairly widespread practice, and the question whether such a condition is a "fair condition" within the meaning of re Thompson has never been clearly pronounced upon. In my view the present decision was capable of raising an important question of law or justice.

Mr Stubberfield obviously made his decision to apply for judicial review immediately the decision was given, if not before. He informed the magistrate of this intention immediately upon the delivery of judgment, indicating that he did not need the leave of the District Court as he could ask for judicial review in the Supreme Court. In my view, Mr Stubberfield cannot improve his position by now pointing out that he has lost the opportunity to appeal to the District Court, that the only remedy he has left is the remedy in this court and by alleging that it would therefore be unfair to withhold the present remedy from him. It was his deliberate decision. The question is whether it was a correct one.

Reference was made by Mr Stubberfield to R v. Mackay; ex parte Cassaniti [1993] 2 Qd.R. 95. The decision reviewed in that case was given before the commencement of the Judicial Review Act. It is an instance in which the court granted certiorari with respect to a decision of a small debts court. Mr Stubberfield submitted that it is in point because "the same rights of appeal by leave applied as in the subject case", and "the court determined the matter on the merits making the order sought". Neither of these propositions is correct. There was at that time, and still is, no possibility of appeal from a decision of a small debts court, whether by leave or otherwise. (S.11(6) of the Magistrates Courts Act as it then was, and now s.11AE(1)). The only avenue of review of small debts court decisions was by prerogative writ in cases of "no jurisdiction" or "denial of natural justice." Mackay's case is merely an example of the correction of such errors by prerogative writ when no other remedy was open.

R. v. The Judge of the District Court at Brisbane and Davies; ex parte Allen [1969] Qd.R. 114 is a better example from Mr Stubberfield's point of view, because it affords an instance, prior to the introduction of the Judicial Review Act, where the Full Court granted certiorari to quash an order of the District Court which had sentenced the applicant to three months' imprisonment in circumstances where he had not been properly served with the necessary process. Two points should be noticed in this decision. Firstly the Court read down the privative clauses (ss.27 and 28 of the District Courts Act) holding them not to take away the right to prerogative writs in such a case. Secondly the Court granted the remedy notwithstanding the existence of an avenue of appeal by leave to the Full Court. This question was not dealt with by Hanger J (with whom Mack CJ agreed). It is mentioned only by W.B. Campbell J under dealt with the question in the following sentence:

"Although s.92(2) of the District Courts Act of 1967 may entitle the prosecutor to seek leave of the Supreme Court to appeal to the Full Court I do not consider that this probable alternative remedy is, in the circumstances, sufficient justification for a refusal to issue certiorari."

The "circumstances" to which his Honour was referring included a manifest jurisdictional breach and the imposition on appeal of a three months imprisonment upon a traffic offender who had been fined $15 at first instance. It is hardly surprising that the Court saw fit to grant a prerogative remedy in those circumstances. Indeed, in similar circumstances it is likely that any court would be minded to exercise its discretion to grant relief in this way. The circumstances of the present case are in my view distinguishable.

It seems to me that the present situation is one in which adequate provision is made by another law, namely the Magistrates Court Act, under which the applicant was entitled to seek a review of the matter by another court. The requirements of s.12 of the Judicial Review Act 1991 are satisfied and the appropriate course is to dismiss the application.

I would add that the requirements for dismissal under s.13(b) are also satisfied, and there is no sufficient reason "having regard to the interests of justice" why the requisite dismissal should not follow. Quite apart from the statutory provisions, the existence of an appeal procedure is relevant to the exercise by this court of its discretion to grant certiorari (R v. Cook ex parte Twigg [1980] HCA 36; (1980) 147 C.L.R. 15, 30, 34; R v. Northumberland Compensation Appeal Tribunal [1951] EWCA Civ 1; [1952] 1 All.E.R. 122, 133; R v. Tennant ex parte Woods [1962] Qd.R. 241, 257; Baldwin and Francis Ltd v. Patents Appeal Tribunal [1959] A.C. 663. (Hill v. King (1993) 31 NSWLR 654, 659 C-E.) There are therefore a number of concurrent overlapping principles that may restrict the availability of the present remedy. They are however separate discretions, and none of them reduces the ambit of the others. Indeed, Ss. 12 and 13 may be thought to have broadened the Court's discretion in controlling its own process.

It is unnecessary to express a considered view upon the prospects of obtaining relief or partial relief had the present application proceeded. In order that the issues might be understood, argument was permitted upon the substance of the matter, and it is sufficient to say that difficult and arguable questions were raised. If the path had been clear I may have been tempted to intervene. But it is not a case where one can easily perceive that the result was necessarily wrong, and full argument would be necessary before coming to a conclusion that there was jurisdictional error. Mr Stubberfield sought to avoid liability entirely. To the extent that he sought to do so on the merits, by alleging that the solicitor did not do the work he was requested to do, the magistrate has quite convincingly found the facts against him. To the extent to which he submits that the solicitors may not sue upon either the first or the second bill without obtaining leave of the Supreme Court, no such result flows from the Costs Act, and the proposition could best be described as a complex point requiring extensive review of the authorities and the determination of a novel point of law. In my view Mr Stubberfield's best point, had he appealed, might have resulted in a varied judgment for the plaintiff for a sum about $650 less than the present judgment. If it were to be held on the present application that the failure to limit the judgment to the amount of the first bill amounted to a jurisdictional error, then the appropriate order would be to set aside the judgment and send it back to the magistrate with a direction to proceed in accordance with law. In due course after further proceedings the expected result might be a substituted judgment for $794.50. Upon an appeal to the District Court, any necessary judgment would in the ordinary course have been there and then substituted by that court. The amount that could most realistically now be regarded at stake in the present proceedings is $650, which is considerably less than the costs involved in an application for a prerogative order, not to mention those of the further appeal as of right to the Court of Appeal. These matters are mentioned with a view to seeing the present application in some perspective.

As a general rule judicial review should not be seen as a substitute for the appellate process in the civil courts. Of course particular circumstances may yield different results, as for example in a case of obvious jurisdictional abuse when the liberty of a citizen is at stake (R v. The Judge of the District Court at Brisbane and Davies; ex parte Allen, above; Weinel v. Judge Parsons [1994] SASC 5155; (1994) 62 SASR 501, 505), and other situations which I do not purport to limit. Applications like the present one are unlikely to produce a satisfactory result for the disgruntled civil litigant but are still likely to take up considerable time of the courts. It is therefore important that it be clearly understood that this remedy is not to be regarded as a substitute for the appellate system within the ordinary judicial process.