Abbott v Magistrate Malley
[2012] WASC 420
•13 NOVEMBER 2012
ABBOTT -v- MAGISTRATE MALLEY [2012] WASC 420
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 420 | |
| Case No: | CIV:3330/2011 | 30 JULY 2012 | |
| Coram: | EM HEENAN J | 13/11/12 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | DAVID LEONARD ABBOTT MAGISTRATE MALLEY ELIAHU BERNSTEIN |
Catchwords: | Criminal Investigation Act Application to determine claim of legal professional privilege over items seized under search warrant Reference to Magistrates Court Claim for inspection of seized items withdrawn by consent Effect of consent order Order for costs in favour of respondent Power to order costs without formal determination of claim for privilege Review of costs order Scope of review |
Legislation: | Criminal Investigation Act 2006 (WA) Magistrates Court Act 2004 (WA) |
Case References: | Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (1999) 95 FCR 114; [1999] FCA 1387 AW v Rayney [2009] WASC 250 Bogaards v McMahon (1988) 15 ALD 313; (1988) 80 ALR 342 Cachia v Hanes (1994) 179 CLR 403 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Groser v Equity Trustees (2008) 19 VR 598; [2008] VSC 163 Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84; (1991) 99 ALR 193 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25 R v Mansfield [2011] WASCA 132 Re an Application Under the Magistrates Court Act 2004; Ex parte Bartholomew [2008] WASC 52 Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Re Western Australian Planning Commission; Ex parte Solomon [2010] WASCA 236 (S) Reynolds v Panten [No 1] [1999] WASCA 89; (1999) 23 WAR 215 Wentworth v Attorney-General (NSW) (1984) 154 CLR 518 Wilson v McDonald [2009] WASCA 39 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
MAGISTRATE MALLEY
First Respondent
ELIAHU BERNSTEIN
Second Defendant
Catchwords:
Criminal Investigation Act - Application to determine claim of legal professional privilege over items seized under search warrant - Reference to Magistrates Court - Claim for inspection of seized items withdrawn by consent - Effect of consent order - Order for costs in favour of respondent - Power to order costs without formal determination of claim for privilege - Review of costs order - Scope of review
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Legislation:
Criminal Investigation Act 2006 (WA)
Magistrates Court Act 2004 (WA)
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant : Mr D E Leigh
First Respondent : Submitting appearance
Second Defendant : In person
Solicitors:
Applicant : State Solicitor for Western Australia
First Respondent : Submitting appearance
Second Defendant : In person
Case(s) referred to in judgment(s):
Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (1999) 95 FCR 114; [1999] FCA 1387
AW v Rayney [2009] WASC 250
Bogaards v McMahon (1988) 15 ALD 313; (1988) 80 ALR 342
Cachia v Hanes (1994) 179 CLR 403
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Groser v Equity Trustees (2008) 19 VR 598; [2008] VSC 163
Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84; (1991) 99 ALR 193
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
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Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25
R v Mansfield [2011] WASCA 132
Re an Application Under the Magistrates Court Act 2004; Ex parte Bartholomew [2008] WASC 52
Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Re Western Australian Planning Commission; Ex parte Solomon [2010] WASCA 236 (S)
Reynolds v Panten [No 1] [1999] WASCA 89; (1999) 23 WAR 215
Wentworth v Attorney-General (NSW) (1984) 154 CLR 518
Wilson v McDonald [2009] WASCA 39 (S)
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1 EM HEENAN J: By originating motion of 6 December 2011 the applicant has applied under s 36(1)(c) of the Magistrates Court Act 2004 (WA) for an order requiring his Honour Magistrate Malley, and any other person affected by his Honour's order of 8 November 2010 dismissing, without determination, an application under s 151(4) of the Criminal Investigation Act 2006 (WA) and requiring the applicant to pay the second respondent's costs, to show cause why his Honour's order as to costs should not be set aside.
2 I made an order on that motion on 3 April 2012 directing that the decision of his Honour should be reviewed before a single Judge of this court. That order directed that his Honour should be joined in the review as first respondent and that the second respondent, the respondent in the proceedings before his Honour, should be the second respondent.
3 The grounds for the application for a review order and the order granted are as follows:
The applicant is aggrieved by the order as to costs on the ground that his Honour made the order without jurisdiction or power and in circumstances where a condition precedent to his Honour's jurisdiction to order costs had not been fulfilled, which justifies an order for certiorari.
PARTICULARS
- 1. On 2 March 2011 the applicant executed a search warrant at the premises of the second respondent at … Dianella and seized a number of computer related items.
2. [LB], counsel for the second respondent, informed the applicant that a claim of legal professional privilege was made in respect of all items seized, whereupon the applicant secured the items, lodged them at the Magistrates Court at Perth and filed and served an application for decision on whether information in a seized record is privileged, along with a supporting affidavit, in accordance with s 151(4) of the Criminal Investigation Act 2006 (Act).
3. The matter was listed on 20 April 2011, at which time his Honour Magistrate Malley made orders in accordance with consent orders as proposed by the parties. Those orders were to the effect that the seized items would be collected by the Computer Crime Squad and examined only for visual images that may afford evidence of the offence alleged against the second respondent.
- 4. The consent orders were complied with, but no evidentiary material was found during the course of the Computer Crime Squad's investigation.
5. The matter was then listed before his Honour Magistrate Malley on 8 November 2011, and orders were made to make the seized items available for collection by the second respondent. The application was dismissed without the learned Magistrate deciding whether the seized items were privileged, not privileged, or partially privileged (in accordance with s 151(9) through s 151(11) of the Act).
6. His Honour purported to make an order as to costs pursuant to section 151(13) of the Act requiring that the applicant pay the second respondent's reasonable costs to be agreed or, if no agreement was reached, the amount of costs was to be determined by his Honour.
7. In light of the claim of privilege made by the second respondent the applicant was obligated to bring an application for a decision under s 151 of the Act. Furthermore, the applicant acted reasonably by seeking to resolve the matter at the earliest opportunity by negotiating the consent orders subsequently endorsed by the court on 20 April 2011.
8. Section 151(13) of the Act provides that after making a decision the court may make any order it thinks fit as to costs. The 'decision' contemplated by s 151(13) of the Act is a decision in respect of an application made under s 151(4) to determine whether information contained in a seized record is privileged - see AW v Rayney [2009] WASC 250 as per Murray J at [20].
9. The making of a decision in respect of an application brought under s 151(4) of the Act is a condition precedent to the court's power to make an order as to costs under s 151(13). Absent the making of a 'decision' as to whether seized items are privileged there is no power to award costs in respect of an application under s 151(4) of the Act, and the purported order is ultra vires.
10. There being no decision under s 151(4) of the Act in this case, the condition precedent enlivening the court's power to make any order as to costs was not fulfilled. The requirement that the applicant pay the respondent's reasonable costs was therefore an order his Honour had no power to make and was made without, and in excess of, jurisdiction.
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4 In accordance with the directions contained in the review order of 3 April 2012 the first and second respondents were served with the originating process, the supporting affidavit and the review order. The first respondent has since lodged a submitting appearance but otherwise did not appear and was not heard on the hearing of the application. The second respondent appeared in person and made submissions at the hearing.
5 The applicant is the police officer who executed the search warrant and, upon demand that the material seized included items the subject of legal professional privilege, submitted the materials to the Magistrates Court and made the application for determination of a claim of privilege under the provisions s 151 of the Criminal Investigation Act 2006. The affidavit of the applicant in support of the application and annexed materials confirms the chronology and substance of events outlined in the applicant's grounds for review. There is no dispute about any of those facts and it is unnecessary to enlarge upon the further detail contained in the affidavit.
6 When the consent orders before his Honour, the first respondent, were proposed in the Magistrates Court on 8 November 2011 the question concerning the power of the court to award costs upon a consensual disposition which did not involve an actual determination of a claim for privilege was raised and became the subject of submissions. Counsel for the present applicant advanced essentially the submissions which are the subject of the present order for review, namely, that the power to award costs had not arisen in those circumstances. His Honour decided the issue by determining that even in a case of a consensual disposition it is necessary for the court to make a decision, even if only a formal one, which would determine the claim and that that was sufficient to enable an order for costs to be made. His Honour's reasons for decision in this respect appear from pages 6 and 7 of the transcript in the Magistrates Court on 8 November 2011, where his Honour said:
Yes, in relation to the matter, it would seem to me that if items are seized, the respondent has as his right under the Act to effectively dispute it. In fact, if there is some consensual agreement and nothing is found in relation to the documents (indistinct) is that the applicant at the end of the day concedes the documents are to be returned, and in order for that to occur, in my view, that still requires a decision on that part albeit it's only formalising an agreement that exists between the parties, a bit like a VRO by consent. The order is a decision by the court to impose an order, albeit it is not opposed by the respondent in those proceedings.
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- At the end of the day, in these circumstances, I am of the view that the respondent is entitled to some costs, that the Act makes provision for it, and I cannot simply see why it would not be appropriate in all of the circumstances of this case for an order to be made of some amount …
7 His Honour then went on to deal with how the order for costs should be quantified and ultimately made an order for the payment of costs to be agreed or, if not agreed, to be fixed by the court later. There is no dispute about the terms or effect of the actual order. Rather, the question is whether there was power to do so and, if not, whether that order should be set aside or quashed.
Principles applicable on application for review
8 The principles to be applied by this court when reviewing a decision or order of a magistrate made on an application by a police officer for decision upon a claim of legal professional privilege under s 151 of the Criminal Investigation Act 2006 have been discussed and examined by Murray J in AW v Rayney [2009] WASC 250. That was an application to the Magistrates Court under s 151 by a police officer who had partially executed a search warrant but had been faced with claims for legal professional privilege over certain documents. Questions then arose about what materials could or should be disclosed to counsel to allow the application to be argued. Directions were given by the magistrate ordering inspection of certain of the materials seized under the search warrant but with significant redactions being made to their content. The learned magistrate also directed the service of redacted affidavits and submissions in support of the claim. On the review Murray J varied those orders by directing service of unredacted affidavits and submissions of the respondents upon counsel and instructing solicitor for the applicant upon being given an undertaking to preserve confidentiality. No question as to whether or not the learned magistrate had, in those circumstances, the power to order costs arose. His Honour did direct, however, upon discretionary considerations that there should be no order for costs of the review but the decision does not stand for any proposition that costs should not, or cannot, be awarded in such applications for any particular reason.
9 In AW v Rayney Murray J observed that he was of the view that there was no right of appeal from a decision made by the magistrate on that application under s 151 of the Criminal Procedure Act [21] but that this court had power to review orders or directions made or proposed under s 151 of the Criminal Investigation Act by virtue of s 36(1) of the Magistrates Courts Act 2004 (WA). The powers of the court available on
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- such a review are those contained in s 36(4) of the Magistrates Courts Act and include the power to:
(a) order that the act, order or direction be or not be done or made or set aside as the case requires;
(b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c) make any necessary consequential orders.
10 His Honour referred to his previous decision in Re an Application Under the Magistrates Court Act 2004; Ex parte Bartholomew [2008] WASC 52 [20] for the observation that s 36 is designed to be a statutory process of review by the Supreme Court of the acts, orders and directions of the Magistrates Court and of the refusal of that court to perform an act, make an order, or give a direction in proceedings before it and that the section was designed to replace the formerly available prerogative writs of mandamus, prohibition and certiorari but the section was to be read on its own terms. Further, at [57] Murray J repeated the observation contained in Bartholomew at [50] that the powers of this court on a hearing of the review are those contained in s 36(4) of the Magistrates Courts Act. This means that the review order places an onus upon the person aggrieved to satisfy this court that the order made by the Magistrates Court should be set aside.
11 Subsection 151(15) of the Criminal Investigation Act expressly states that an appeal lies against a decision made by the court under this section and s 151(13)(b) also recognises that an appeal against the determination of the claim for privilege may be commenced and dealt with. These recognitions are expressly subject to the Criminal Appeals Act 2004 pt 2. This means that the observations of Murray J in AW v Rayneythat there was no right of appeal in that case must be confined to the particular circumstances which arose in that litigation, namely, where directions had been given as to the use of redacted materials and affidavits in the course of a determination of the claim for privilege before the Magistrates Court. It is evident from [20] in AW v Rayney that Murray J recognised that a general right of appeal from the decision under s 151 would lie to this court but that the special circumstances of that case meant that a decision of the Magistrates Court susceptible to appeal had not then been made and that the review procedure under s 36 of the Magistrates Court was the only route for review available. This is not the situation in the present case and, accordingly, it seems that it would have been possible for the
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- applicant to appeal under s 151(15) and the Criminal Appeals Act but that course has not been chosen. That is no reason to refuse or diminish the review available under s 36 of the Magistrates Court Act but it does mean that the review is subject to the limitation on available grounds set out in s 36 itself.
12 This power of review of decisions of the Magistrates Court which is conferred upon this court is set out in terms contained in s 36 of the Magistrates Court Act 2004 which, so far as presently material, provides:
36. Supreme Court’s powers to control Court
(1) If a person is or would be aggrieved by one or more of the following -
(a) the failure of a Court officer to do any act or make any order or direction -
(i) on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii) on any ground that might have justified an order of mandamus;
(b) an act, order or direction that a Court officer proposes to do or make -
(i) on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii) on any ground that might have justified an order of prohibition;
(c) an act, order or direction done or made by a Court officer -
(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii) on any ground that might have justified an order of certiorari,
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13 In the present case this order for review seeks a consideration by this court of whether or not the learned magistrate should have made the costs order which he did on the determination of the application before him under s 151 of the Criminal Investigations Act. It therefore invokes the powers of this court under s 36(1)(c). It is important to recognise that this is a power of judicial review and is not an occasion for the exercise of any general right of appeal relying either on grounds of law or fact but relates to a review on the ground that the act, order or direction done or made occurred without jurisdiction or power or constituted an abuse of the court or upon any ground which might have justified an order of certiorari. In the latter case that would include grounds amounting to acting outside or in excess of or without jurisdiction or error of law upon the face of the record or because of jurisdictional error - see generally Re McBain; Exparte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 especially per Hayne J at [253] - [285] and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, and Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25.
14 Constant recognition of the statutory limits of review under s 36 is necessary to avoid this court being drawn into 'the forbidden field of review on the merits' - Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 391 (Mason CJ). Because of the absence of any submissions directed specifically to the scope of review available under s 36 in the present case, this is not the occasion to determine authoritatively what precisely is within, or without, the scope of the statutory power of review. However, it is evident that s 36 imposes limits on the scope of review and that those limits must be recognised and observed. So, for example, in the present case there was no analysis of whether or not the alleged error or want of jurisdiction by the learned magistrate appeared 'on the record' or whether, indeed, the reasons for decision of the learned magistrate formed part of the record - as to this, see Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 [180] - [181]. This case is not suitable to determine whether on any like review the magistrate's reasons for decision form part of the record so as to attract the judicial review jurisdiction which existed on that ground for the grant of certiorari. It is enough to consider whether or not the present applicant can establish that the jurisdiction to award costs under s 151 of the Criminal Investigation Act does not arise unless there is a final determination on the merits and the claim for privilege. That is the basis upon which I shall proceed in the present case, but that approach
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- does not mean that these other issues may not need decision on some future occasion.
Award of costs
15 The power to award costs must derive from statute and the nature and extent of the power will depend upon the particular applicable statutory provision. At common law costs were only ever available pursuant to statute - being first introduced by the Statute of Gloucester (1278) 6 Edw 1 c 1 - see Cachia v Hanes (1994) 179 CLR 403, 410 and are confined to money paid or liabilities incurred for professional legal services. They do not include compensation for time spent by a litigant who is not a lawyer in preparing and conducting his case. The discretion to award costs is very wide: Wentworth v Attorney-General (NSW) (1984) 154 CLR 518, 528.
16 It follows that any review under s 36 of the Magistrates Court Act of a decision of the magistrate to order costs must acknowledge the breadth of the discretionary power so that any setting aside or variation of such an order will only be possible if it is demonstrated that there is a want or excess of jurisdiction, abuse of process or an error of law which would warrant the grant of certiorari, including a jurisdictional error as earlier described. Several of the arguments advanced by the applicant in the present case go more to the merits or alleged lack of merits underlying the particular order than to the jurisdiction of the learned magistrate to order costs. They must be disregarded because the discretionary power to award costs reposes in the magistrate and not in this court so that interference will not be justified simply because of the weight of considerations or other facts which the learned magistrate took into account unless there has been an error of the kind described.
Statutory power to award costs on the determination of a claim for privilege
17 The procedure for determining a contested claim for privilege arising in the course of the execution or attempted execution of a search warrant is set out in s 151 of the Criminal Investigation Act 2006. There is a positive obligation to deal with a claim for privilege in accordance with that section if a record is seized and a person entitled to possession of the record claims that all or some of the information in it is privileged or the officer seizing the record or to whom it is produced reasonably suspects that all or some of the information in it is privileged - s 151(2). In that case, the officer in charge of the investigation must apply to the court to decide whether the information is privileged - s 151(4).
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18 It is apparent from several of the subsections that the court is thereupon obliged to decide whether all or any of the information contained in the record or records seized or produced is privileged (s 151(5), (8), (9), (10), (11), (12)). Once that decision has been made the court then has the following discretionary powers with respect to costs:
(13) After making a decision, the court may make any orders it thinks fit -
(a) as to costs;
(b) as to securing the record, or suspending the operation of any orders made under this section, until an appeal against the determination is commenced and dealt with.
20 Counsel for the applicant submitted that the term 'decision' where contained in s 151 of the Criminal Investigation Act necessarily meant a decision on the merits finally determining a claim or an apprehended claim of legal professional privilege in relation to a record the subject of a warrant. The well accepted principles of statutory construction contained in s 19 of the Interpretation Act 1984 (WA) and as explained by Buss JA in R v Mansfield [2011] WASCA 132 [102] - [103] were relied upon. Further reference was made to the observations of Murray J in AW v Rayney to the effect that the decision contemplated under s 151(14) is the decision whether the information is privileged in whole or in part or not at all. However, as already explained, the point being examined by his Honour at [20] was whether or not the right of appeal conferred by s 151(14) arose in relation to directions made by a magistrate in the course of proceedings under s 151 which had not at that point been determined. The observations to the effect that that 'decision' or 'direction' did not
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- constitute a decision for the purposes of the appeal are clearly distinguishable from the present situation where the application before the magistrate under s 151 had been finally disposed of notwithstanding that that occurred because of an order made by consent. Similar observations can be made in relation to the submissions by the applicant about the meaning of the word 'decision' within s 6 of the Criminal Appeals Act. In the same category are, for example, observations in Reynolds v Panten [No 1] [1999] WASCA 89; (1999) 23 WAR 215 [26] - [61] that s 184 of the Justices Act 1902 (repealed) did not confer a right of appeal from an interlocutory decision of a Magistrates Court. There again, however, those observations are distinguishable because the decision of the magistrate in the present case was not an interlocutory one.
21 Reference was also made to the observations of Pullin JA in Re Western Australian Planning Commission; Ex parte Solomon [2010] WASCA 236 (S) when his Honour observed, in a civil case where there was a subsequent application for costs, that if there had been no hearing on the merits a court is necessarily deprived of the factor which usually determines whether or how it will make a costs order and that in such a situation the proper exercise of the costs discretion would usually mean that the court would make no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622, 624 (McHugh J). Such a situation is certainly one where the judicial officer requested to make an order for costs may hesitate before doing so and even may decline to make such an order but it does not mean that there is no power or jurisdiction to make an order; it, rather, goes to the question of whether or not, on the merits, any such order ought be made. That ultimate decision is very much a matter for the discretionary judgment of the judicial officer disposing of the proceedings.
22 The major submission for the second respondent was that the consent decision disposing of the s 151 application was nevertheless a 'decision' on the application under s 151 and carried with it the power and the jurisdiction of the magistrate to make such costs order as, in the exercise of his discretion, his Honour thought was appropriate. The second respondent submitted that his Honour could have rejected the consent orders had he considered it necessary to do so and that the decision to make a final dispositive order in accordance with the terms of the consent of the parties constituted a decision by the magistrate under s 151. Reference was made to the observations of Habersberger J in Groser v Equity Trustees (2008) 19 VR 598; [2008] VSC 163 where his Honour said:
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- In considering proposed consent orders, a court is not acting merely as a rubber stamp. It remains the duty of the judge hearing the case to consider whether, in all the circumstances, the orders sought by the parties are appropriate.
23 Reference was made to further authorities supporting the contention that a consent order made by a court constitutes or effects an adjudication by the court on the issues raised by the pleadings in a civil case and that they have the same effect as orders made after adjudication: Bogaards v McMahon (1988) 15 ALD 313; (1988) 80 ALR 342, 342 (Pincus J). So a consent order can, with leave of the court, be subject to appeal and also will support a plea of res judicata. See also Harris v Caladine [1991] HCA 9;(1991) 172 CLR 84; (1991) 99 ALR 193. In Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528 there is to be found an example of how an agreement by consent between parties for the resolution of litigation was found to be based upon a mistake and was not acted upon by the trial judge to whom it was submitted because his Honour considered that it was in the interests of justice to disregard the consent agreement which had been reached by mistake. See also Australian Competition and Consumer Commission v Real Estate Institute of Western Australia (1999) 95 FCR 114; [1999] FCA 1387, 131 where at [37] - [38] French J explained the residual obligation of a court, faced with a proposed consent order agreed by the parties, to ensure that the proposed orders complied with the jurisdiction and powers of the court.
24 Accordingly, in the present case I am satisfied that the decision and order of the first respondent as the magistrate having the obligation to determine this s 151 application was a decision to dispose of the application which had been made under s 151(4) and (5) and that the consequent power to order costs was enlivened.
25 Other examples may serve to illustrate this point. Take, first, a situation in which records are seized under a search warrant, a claim for legal professional privilege is made or apprehended, and an application to the court is made by the officer in charge under s 151(4). Then, when the matter comes on for hearing, the parties or their legal representatives each inform the court that they are satisfied that none of the documents is subject to the privilege claimed and that an order by consent should then be made by the court to that effect, allowing the examination of the records seized under the warrant to take place. Second, take a similar example but where the consent order is to the effect that all of the records seized are subject to legal professional privilege and that, consequently,
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- none is available to the person attempting to execute the warrant. In neither of those cases would the magistrate have himself or herself undertaken a deliberative determination upon the merits about the status of any of the documents but, nevertheless, the orders made by consent would be determinative of the status of the documents and would constitute a decision under s 151. In both examples the consents or concessions by the parties as to the status of the documents would have been accepted by the presiding magistrate whose decision or determination would be based upon those consents or concessions but, nevertheless, would be determinative at law of the status of the documents.
26 It may be said in the present instance that no determination of the status of the documents seized under this warrant, by consent or otherwise, was conducted and that the application was disposed of by consent because, in the events which happened, nothing turned on the determination of whether privilege existed or not. That is undoubtedly so but it does not change the character of the order or decision of the magistrate which had the effect of determining the application and which, therefore, amounted to a decision under s 151. In that situation, it may be an open question whether or not, on the merits, an order for costs should have been made but his Honour had the discretion to make that decision and did so. There is no basis to conclude that he acted outside or in excess of his jurisdiction in doing that or that his decision to do so constituted an error of law.
27 There has, accordingly, been nothing demonstrated which would justify any order or direction to set aside or vary the order for costs made by the learned magistrate or to quash it or to remit it for further consideration. Accordingly, the application for review must be dismissed.
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