SUPREME COURT OF QUEENSLAND

CITATION:	Millar v A/C Magistrate Brassington & Ors [2023] QSC 191	
PARTIES:	ANDREW JOHN MILLAR
(applicant)
v
A/C MAGISTRATE BRASSINGTON
(first respondent)

AND

MAGISTRATE PREVITERA
(second respondent)
AND
MAGISTRATE COOKE
(third respondent)

AND
COMMISSIONER OF THE QUEENSLAND POLICE SERVICE
(fourth respondent)
	
FILE NO/S:	BS 7264 of 2022
	
DIVISION:	Trial Division	
PROCEEDING:	Application	
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane	
DELIVERED ON:	24 August 2023	
DELIVERED AT:	Brisbane	
HEARING DATE:	18 August 2023	
JUDGE:	Brown J	
ORDER:	1.	The proceedings in the Application for Review filed 21 June 2022 against the fourth respondent are dismissed.
2.	The applicant pay the fourth respondent’s costs of the proceedings save for the costs of appearance on 19 July 2022.	
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISCRETION NOT TO ENTERTAIN APPLICATION – where the fourth respondent applies to strike out an application for review filed by the applicant under s 48(1) of the Judicial Review Act (Qld) – where the applicant was convicted of criminal offences in relation to which, after a successful appeal and remittal of the charges to the Magistrates Court, a nolle prosequi was entered – where the applicant seeks to raise issues with how the charges were pursued and prosecuted and with the decision-making of various Judges and Magistrates –  whether the application for review discloses any reasonable basis, is frivolous or vexatious and/or it would be inappropriate for the Court to grant the application
Judicial Review Act 1991 (Qld)
du Boulay v Worrell & Ors [2009] QCA 63
Spinosa v Crime and Corruption Commission & Ors [2020] QSC 321	
COUNSEL:	The applicant appeared for himself
M Nicolson for the fourth respondent
	
SOLICITORS:	The applicant appeared for himself
QPS Legal Unit for the fourth respondent

[1]	
[1]	The Court must determine whether to dismiss the Application for Review filed 21 June 2022 on the basis that it does not disclose any reasonable basis for the application, is frivolous or vexatious and/or it would be inappropriate for the Court to grant the application. The application is made by the fourth respondent, the Commissioner of the Queensland Police Service, under s 48(1) of the Judicial Review Act 1991 (Qld) (JRA).
[2]	Section 48(1) of the JRA provides:
48 	Power of the court to stay or dismiss applications 	in certain circumstances
(1) 	The court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application, if the court considers that—
(a)	it would be inappropriate—
(i) 	for proceedings in relation to the application or claim to be continued; or
(ii) 	to grant the application or claim; or
(b) 	no reasonable basis for the application or claim is disclosed; or
(c) 	the application or claim is frivolous or vexatious; or
(d) 	the application or claim is an abuse of the process of the court.
[3]	The applicant, Mr Millar, filed an Application for Review on 21 June 2022.  At that time, he was facing charges in relation to which a nolle prosequi was entered by the prosecution in April of this year. That, however, followed Mr Millar being found guilty of the charges, a successful appeal and the charges being remitted to the Magistrates Court before the prosecution determined not to pursue the charges. Mr Millar seeks to raise issues with how the charges were pursued by police (particularly the non-production of a police notebook said not to exist which was ultimately produced) and how the charges were prosecuted. He also seeks to raise issues with decision-making by various Magistrates and Judges. The relief sought in the Application for Review sought to review decisions of the first, second and third respondents and sought orders to delist the trial listed to recommence on 30 June 2022.  
[4]	The matter came before Bradley J for directions and his Honour made orders on 27 June 2022, including to relieve the first, second and third respondents from further appearance save as to costs and any adverse findings of serious misconduct, corruption, gross ignorance or perversity proposed to be made against them, to join the Commissioner of the Queensland Police Service as fourth respondent to the proceeding, and to require the applicant to file a statement setting out the final relief sought in the proceedings. 
[5]	At that time, the charges against Mr Millar were extant. His Honour refused to order a stay of the Magistrates Court trial for the hearing of the charges listed for 30 June 2022.
[6]	The fourth respondent was said to have been provided with the application for review, a statement of final relief filed 27 June 2022 and some other documents. The statement of final relief stated that the applicant was seeking orders that the trial listed to resume on 30 June 2022 be permanently stayed or declared a mistrial. 
[7]	On 8 July 2022, the fourth respondent applied to strike out the application for review. At that time the charges had been heard, Mr Millar had been found guilty, and the matter was listed for sentence.
[8]	On 19 July 2022, Bradley J made orders providing for the applicant to have leave to bring an application for leave to amend the application on three clear days’ notice to the fourth respondent after 8 August 2022 and for the fourth respondent to have leave to relist the application filed on 8 July 2022 on three clear days’ notice to the applicant after 8 August 2022.
[9]	On 24 July 2023, the applicant filed an application for leave to be granted to amend the Application for Review, to add various respondents, and to file outline of arguments in respect to decisions/actions of the parties named at paragraph 2. The applicant attached a summary of issues involving those named parties to the application.  The fourth respondent then sought to relist the strike out application to be heard at the same time.
[10]	I considered the application for leave to amend by Mr Millar first in order to determine whether leave should be given and whether there was any identifiable claim against the fourth respondent. Rather than attaching an amended originating application, Mr Millar sought leave to amend and gave a summary of the claims he wished to raise and the parties he sought to join.  His oral submissions outlined some matters which are additional to that summary and which he wishes to raise, particularly against two District Court judges. On 18 August 2023, I refused the applications for joinder of the parties identified in paragraph 2 and for leave to provide the outline of argument in respect of the decisions/actions of the parties sought to be joined. I adjourned paragraph 1 of the application for leave to amend to a date to be fixed and directed that it not be relisted until seven business days after the applicant has provided any proposed originating application to any affected parties and attached that amended originating application to the application seeking to relist the application for leave to amend the originating application. Given the orders of Bradley J on 19 July 2022, the originating application is effectively stayed.
[11]	I indicated I would deliver judgment as to the fourth respondent’s application this week.
[12]	Given a nolle prosequi has been entered in relation to the charges, the fourth respondent contends that there is now no proceeding in the Magistrates Court to which the relief sought by the applicant in the Application for Review can attach as there are no longer any proceedings to stay.
[13]	The applicant’s document of 24 July 2023 outlined a summary of the issues which he wished to raise by amendments, including that:
(a)	counsel for the fourth respondent represented in his submissions that the police notebook did not exist when that was incorrect. The applicant says that as a result of various directions made, particularly by Moynihan KC DCJ, a redacted copy of the notebook was produced. Counsel for the fourth defendant pointed to evidence in transcripts before the Magistrate to show that what he said had been submitted in relation to the police notebook reflected the evidence given and submissions made. In any event, that exchange does not raise any basis for a potential ground of judicial review against the fourth respondent;
(b)	the police prosecutor provided a redacted document which was an extract apparently from a police notebook notwithstanding that the relevant Judge did not give leave for it to be redacted.  According to the applicant, the notebook shows that Constable Nestor never met the complainant, Mr Quinby, showing that her evidence-in-chief and under cross-examination was apparently false. Again, whether that be right or wrong, it raises no ground for judicial review against the fourth respondent;
(c)	the police and Mr Quinby refused to assist the Court by not producing phone records for 27 and 28 May 2019, an order which the applicant still seeks;
(d)	the applicant contends that Dearden DCJ, who heard an appeal filed by the applicant, released the applicant on bail and invited him to file three extra grounds of appeal, upon which he was ultimately successful, but did not rule upon the 10 grounds raised by the applicant. Mr Millar contends that he is entitled to have rulings in relation to those 10 grounds notwithstanding that he was successful in the appeal and seeks orders that Dearden DCJ provide rulings in relation to those 10 grounds;
(e)	the applicant further raises in relation to Moynihan KC DCJ that while his Honour ordered the file and issues heard before him to be returned to the Court to explore the issues of the redacted notebook, as a result of which it is said that the police notebook was unearthed, the lack of production of the full notebook has still not allowed the applicant to be able to fully raise his complaints to the Director of Public Prosecutions in relation to the conduct of the police prosecutors, police constable and Mr Quinby. The applicant seeks to review his Honour’s failure to explore the issue of the redacted notebook; and
(f)	the further complaint is that the police prosecutors stated that they were going to trial in relation to the charges and had a three-day trial set down when the charges were dismissed after the nolle prosequi. The applicant seeks an order from the Court that affidavits be produced by all police prosecutions staff involved with the file for the period as to whether any of them actually had a representation made to them by the arresting officer that the complainant had stated he would remain a complainant for the listed trial procured by police prosecutions. 
[14]	It appears that the applicant seeks to rely on Part 5 of the JRA, although I have also considered whether he raises any matter which could raise a reviewable decision under Part 3 of the JRA.
[15]	The fourth respondent asserts that neither the Application for Review, further application or other supporting material clearly articulates any grounds of review as required by s 45 of the JRA.  Further, the fourth respondent contends that the application filed on 24 July 2023 could not be said to identify any decision made by any decisionmaker for review.  In addition, the fourth respondent claims that the Court would not have power to provide a permanent stay pursuant to s 47 of the JRA given there are no extant charges to stay. The fourth respondent further submits that the applicant does not in his Application for Review or further application for leave to amend identify any grounds of review or reasonable basis for the application against the fourth respondent.
[16]	Bearing in mind the approach of Muir J in relation to self-represented litigants in du Boulay v Worrell & Ors, I explored with the applicant in oral submissions what were the matters which were now the subject of his complaints to try and identify whether there was a decision or any other matter which could raise any reasonable basis for the Application for Review and be the subject of judicial review under either Part 3 or Part 5 of the JRA.  
[17]	I understand that while the applicant feels aggrieved about a pursuit of charges which he says were ill-founded and the course of conduct by police in pursuing the charges, including alleged lack of disclosure by the police, the applicant did not identify any decision or basis upon which judicial review could be sought against the fourth respondent. On the basis of the matters raised, Mr Millar seeks to raise some matters which arguably constitute criminal conduct or misconduct by the people involved in the prosecution. However, none of those matters raise any matter which can reasonably give rise to any judicial review action against the fourth respondent. Given a nolle prosequi has been entered into in relation to the charges, there are no charges to be permanently stayed and the Application for Review has been rendered futile in that regard. If the applicant has any basis upon which to pursue action, it would appear based on the matters of which he complains that the action would be a private action in relation to the continuation of the prosecution or to complain of criminal conduct or the conduct of the relevant people involved to their employers. However, the matters raised do not identify any basis for judicial review. 
[18]	Having reviewed all of the material and listened carefully to Mr Millar’s oral submissions, I am satisfied taking Mr Millar’s case at its highest that there is no reasonably arguable basis upon which the applicant could pursue a judicial review action against the fourth respondent in the circumstances based on the matters which he has identified. Nor am I satisfied that Mr Millar would have any such ground of review if he amended the Application for Review in the way foreshadowed by him. The applicant has not articulated any ground of judicial review of any decision by the fourth respondent or conduct for which the fourth respondent was responsible upon which judicial review could be founded and he has not identified any prospect of identifying such grounds. Given that, I determined it was appropriate to decide the Application for Review rather than to adjourn the application again, noting that since the nolle prosequi was entered some four months had passed to allow the applicant to consider his position in terms of the basis of any application and that he had taken steps to seek leave to amend as contemplated by the orders of Bradley J of 19 July 2022.
[19]	In the circumstances, the Court strikes out the proceeding against the fourth respondent on the basis that it would be inappropriate for it to continue and the Application for Review is vexatious given the charges are no longer extant and has no real prospect of success. The applicant’s application for review and foreshadowed amendments do not disclose any reasonable basis for the application against the fourth respondent. Nor do the Application for Review or the foreshadowed amendments identify any grounds of review. The proceeding against the fourth respondent should therefore be dismissed pursuant to s 48(1) of the JRA. While the fourth respondent sought to address the Application for Review insofar as it affected the first three respondents, counsel for the fourth respondent conceded he could only address the matter insofar as it affected the fourth respondent. I have considered the fact that the Application for Review is also brought against three Magistrates who are the first-third respondents. Arguably different matters are sought to be raised by Mr Millar which raise different considerations. It is not appropriate to consider those matters in the context of the present application by the fourth respondent. While the first three respondents have been excused from further involvement in the matter subject to the parameters set out by Bradley J in his Honour’s orders of 19 July 2022, the proceeding remains stayed pending any application for leave to amend the Application for Review being given.
[20]	The fourth respondent seeks her costs of the application. She has been successful in her application. I am not satisfied that she should get all her costs.  I am not aware of the circumstances surrounding the orders of Bradley J when the strike out was originally adjourned and am not satisfied that the applicant should meet those costs. I will therefore order that the applicant pay the fourth respondent’s costs of the application save for the costs of appearance on 19 July 2022.

Orders
[21]	The Order of the Court is that:
1.	The proceedings in the Application for Review filed 21 June 2022 against the fourth respondent are dismissed.
2.	The applicant pay the fourth respondent’s costs of the proceedings save for the costs of appearance on 19 July 2022.