Black v Deer [1995] QSC 328

-_1+;~1 State Reporting B;;;;;u:Sc 9 s /_sc:)~ TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J Application No 20 of 1995 TREVOR JOHN BLACK and STANLEY JAMES DEER CAIRNS .. DATE 27/11/95 .. JUDGMENT REVIS-ED COPiES ISSUED State Reporting Bureau Date 28 / Applicant Respondent 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 22°7 4360. Facsimile: (07) 227 5532 -- 1 of 10 -- 271195 H~S HONOUR: The applicant is a Stipendiary Magistrate presently based at Cairns. The respondent is the Chief Stipendiary Magistrate. By letter dated 31 August 1995, the respondent communicated to the applicant a decision that the applicant be transferred to the position of Stipendiary Magistrate, Rockhampton. From that decision the applicant has appealed pursuant to the provisions of the Judicial Review Act. It is conceded by counsel for the respondent that the decision sought to be reviewed is a decision to which the Judicial Review Act applies and it is further conceded that the applicant is a person aggrieved. Subsection (1) of section 10 of the Stipendiary Magistrates Act 1991 provides that the Chief Stipendiary Magistrate is responsible for ensuring the orderly and expeditious exercise of the jurisdiction and powers of the Magistrates Court. Subsection (2) thereof goes on to provide that subject to the Act and with such consultation with Magistrates as the Chief Stipendiary Magistrate considers appropriate and practicable, the Chief Stipendiary Magistrate has power to do all things necessary or convenient to be done for ensuring the orderly and expeditious exercise of the jurisdictj~n and powers of the Magistrates Courts, including determining the Magistrates who are to constitute the Magistrates Courts at particular places." It should be noted in passing that subsection (3) of section 10 deals with disciplinary powers and it has not been suggested in this case that in deciding upon the transfer in question the Chief Stipendiary Magistrate had recourse to 2 JUDGMENT -- 2 of 10 -- 271195 subsection (3). A vacancy occurred for the appointment of a Stipendiary Magistrate at Ipswich and the Chief Stipendiary Magistrate called for expressions of interest with respect thereto. The Ipswich position was filled and that created some flow-on vacancies which had in turn to be filled by decisions made by the Chief Stipendiary Magistrate. The respondent, in paragraph 5 of his affidavit said: "Stipendiary Magistrates throughout Queensland are required to serve in any part of the State of Queensland at any time and they can expect to be considered for transfer from one centre to another, particularly if they have remained continually at one centre for seven years or more. This is a long standing feature of the position of Stipendiary Magistrate and understood by all Stipendiary Magistrates in Queensland." Indeed, the selection criteria for appointment as a Stipendiary Magistrate contains, as one of its provisions, 11 A willingness to serve in any part of the State." What the respondent was referring to in paragraph 5 was no more than a general indication of how the issue of the transfer of Magistrates is approached. Certainly there are instances where Magistrates have been appointed to a particular centre for a period well in excess of seven years without being transferred. there are also, as the material discloses, many instances of Magistrates being transferred although they have been assigned to a place for no more than five years. All that does is demonstrate that it is necessary, in the interests of the administration of justice in the Magistrates Courts, for the Chief Stipendiary 3 JUDGMENT -- 3 of 10 -- 271195 Magistrate to have a wide discretion as to when and where particular Magistrates should be transferred. The applicant, after having served in various places as a Clerk of the Court, was appointed a Magistrate and Coroner in Brisbane in September of 1990. Shortly thereafter, namely in December 1990, he was notified of his appointment to the position of Magistrate at Cairns. He has been in Cairns ever since. For a period after his appointment to Cairns, he was primarily concerned with the Torres Strait circuit, but after a period of time he was assigned to what is described in the material as the Gulf circuit. It appears that the applicant has had a number of difficulties during his period in Cairns. He has, for some time, been under medical treatment for some medical problems referred to in the material. In the course of one letter to the Chief Stipendiary Magistrate he indicated that those medical problems were partly caused by problems he was experiencing in Cairns. Some of the problems he experienced in Cairns related to a lack of communication between himself and the supervising Magistrate for Cairns. That is not disputed. An issue has been raised in the material as to whether or not the applicant was willing to accept the authority of the supervising Magistrate on administrative matters. It is not necessary for me to make any findings in relation to that issue and it is probably better if it is only addressed very briefly; suffice it to say there does seem to have been some problems between the supervisory Magistrate and the applicant and those problems may have involved questions such as the circuit work to be 4 JUDGMENT -- 4 of 10 -- 271195 performed by the applicant. Some of those matters are addressed in correspondence over the last twelve months or so between the applicant and the Chief Stipendiary Magistrate. The applicant and the Chief Stipendiary Magistrate met at a gathering of Magistrates in Townsville in July of this year. There they had, apparently, a frank discussion about some of the issues to which I have referred. There is a conflict in the material as to whether or not on that occasion the respondent indicated to the applicant that a transfer was one possible solution. Given the whole of the circumstances which have developed since, the probability is that the question of a transfer was at least raised in the course of that conversation. The applicant did indicate that he would attempt to improve the level of communication with the supervisory Magistrate; as he put it in his own affidavit "I was prepared to live and let live and that I sought to negative any antagonism which existed between us". There was an informal communication on or about 14 August this year from the Chief Stipendiary Magistrate in which he indicated to the applicant that he was considering transferring him to Rockhampton. That came about subsequent upon the filling of the Ipswich vacancy to which I referred earlier. In consequence, the applicant wrote a fairly detailed letter to the respondent dated 15 August 1995. It is not necessary for me to quote it in any detail. Amongst other 5 JUDGMENT -- 5 of 10 -- 271195 things, the applicant referred to the perceived adverse impact a transfer to Rockhampton would have on the education of his young children and also pointed out that if he was forced to sell the house he had purchased in Cairns, he would probably incur a significant loss. They were the major concerns that he raised in that letter. As I have said, there was rio question here of the decision being based on disciplinary considerations. The first question that arises for consideration is whether or not this was the type of decision to which the rules of natural justice apply. It was submitted by Senior Counsel for the respondent that the rules of natural justice did not apply. It seems to me that there is force in the submission, and indeed it is probably correct. Natural justice only applies when an order is made which will deprive a person of some right or interest or legitimate expectation or benefit in which case that party is entitled to know the case being made against him and to be given an opportunity of replying to it. It is difficult to see what the legitimate expectation of the applicant was in this particular case. As I have already noted, the selection criteria for the appointment of Magistrates indicated they must have a willingness to serve in all parts of the State and the affidavit of the respondent makes it clear that Magistrates are regularly transferred around the State as part of the administration of that particular Court. Transfers are often made for the purpose of ensuring the orderly and expeditious exercise of the jurisdiction in which the Magistrates Court is 6 JUDGMENT -- 6 of 10 -- 271195 carried out. Here it seems to me that it could not be said that the applicant had any legitimate expectation that he would remain in Cairns beyond the time at which he received notification of transfer to Rockhampton. Further, I cannot see that he has suffered any relevant detriment. His conditions of engagement remain the same. He does not suffer any loss of conditions or loss of status consequent upon being transferred to Rockhampton. The only detriment that can be pointed to are matters which are personal to the applicant; as I have indicated the loss on resale of the house and difficulties with respect to the children's education. In my view, they are not relevant matters for present purposes. As was said by Mr Justice Brennan in Attorney-General for the State of New South Wales v. Quin (1990) 170 Commonwealth Law Reports 1 at 35: "To put it quite starkly, when an administrative power is conferred by the legislature on the executive and its lawful exercise is apt to disappoint, there is no jurisdiction of the Courts to protect that individual's legitimate expectations against adverse exercise of that power." That seems to me to be the position here. It is understandable that the applicant is disappointed as a result of the decision to transfer him but that is no more than the consequence of the exercise of an administrative power vested in the Chief Stipendiary Magistrate. But even if the rules of natural justice did apply, they must be read subject to the express provisions of the legislation, 7 JUDGMENT -- 7 of 10 -- 271195 in this case section 10(2) of the Stipendiary Magistrates Court Act. The Chief Stipendiary Magistrate is bound to consult to such extent as he considers appropriate and practicable. It seems to me that there was consultation in this case. There was, for example, the meeting in Townsville in July at which the question of transfer and the difficulties being faced by the applicant in Cairns were discussed. The applicant also was able to submit his letter of 15 August 1995, setting out what he regarded as reasons why he ought not be transferred. It is clear that the Chief Stipendiary Magistrate took the matters brought to light by that consultative process into account in arriving at his decision. If the rules of natural justice did apply, they meant that in this case the applicant had to be given a reasonable opportunity to present his case against the transfer and it seems to me that he did so by writing that letter of 15 August. It should be remembered that this was not a case where reasons for the decision were required except there was an obligation to give reasons as required by Part 4 of the Judicial Review Act. The only matter that has caused me any concern is the reference in the reasons given by the respondent to some committal proceedings being presided by over the applicant in Cairns. The matter is stated in the reasons for decision as follows: "Mr Black's failure to communicate with Mr Pollock resulted in a trial involving interstate witnesses being adjourned to a later date, requiring a witness to return to Cairns which involved additional expense for the 8 JUDGMENT -- 8 of 10 -- 271195 parties." Relevant extracts from the transcript have been placed before the Court in the applicant's material and that would seem to indicate that at least it was very arguable that his decision was the appropriate judicial one to make in all the circumstances. Indeed, it seems that Senior Counsel for the respondent was prepared to concede as much. But this not a case where the decision to transfer the applicant was based upon some alleged erroneous decision made in the course of that particular case. When one considers the statement contained in the reasons, which I have just quoted above, one can see that this is put forward as but another particular instance of the failure to communicate between the applicant and the supervising Magistrate. As I have already said there is ample other material, including admissions by the applicant, to support the proposition that there had been a breakdown in communication. Because of that, though it would have been better if that particular was not included in the reasons, the inclusion of that statement does not vitiate the decision. This is not, as often has been said, a review on the merits. One is not concerned with whether or not the decision under question is the right one given all the facts of the case. All one is concerned with in this Court is whether or not the applicant was afforded natural justice or procedural fairness, and in my view it cannot be said that he was denied that because of the inclusion of that particular in the reasons. It follows, in all the circumstances, that the applicant has 9 JUDGMENT -- 9 of 10 -- 271195 not made out, a case under the Judicial Review Act to have the decision transferring him to Rockhampton set aside. The application also claimed a stay. In view of my reasons, of course, there is no basis for granting such a stay. The application is therefore refused. 1 0 JUDGMENT -- 10 of 10 --