AJH v Chief Examiner - [2011] VSC 499

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2011 3975

AJH	Plaintiff
v
CHIEF EXAMINER	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 October 2011
DATE OF JUDGMENT:	5 October 2011
CASE MAY BE CITED AS:	AJH v Chief Examiner
MEDIUM NEUTRAL CITATION:	[2011] VSC 499

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ADMINISTRATIVE LAW – Judicial review – Error of law on the face of the record – Rescission of confidentiality notice – Rescission of non-publication direction – Major Crime (Investigative Powers) Act 2004, ss 20 and 43.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W.B. Lindner	Lewenberg & Lewenberg
For the Defendant	Ms R. Sharp	Office of Chief Examiner

HIS HONOUR:

Introduction

The defendant is the Chief Examiner appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004 (“the Act”). On 22 July 2011, an examiner (“the examiner”), to whom the defendant had delegated the Chief Examiner’s functions, duties and powers under Parts 2, 4 and 5 of the Act concerning an examination of the plaintiff, rescinded a confidentiality notice and a non-publication direction which had been given in respect of the plaintiff’s examination. In this proceeding, the plaintiff seeks an order in the nature of certiorari quashing the examiner’s decision of 22 July.

In his originating motion, the plaintiff claims to be entitled to the relief he seeks on the grounds of error of law on the face of the record. Specifically, the grounds relied upon by the plaintiff are as follows:

“(1)The defendant erred in taking into account irrelevant considerations, namely
(i) that (sic) the absence of any evidence of direct threats, the safety of the plaintiff or his family would not be prejudiced in the event of the rescission of the non-publication direction and confidentiality notice, and
(ii) that the power to rescind in these circumstances involves consideration of the importance of the evidence.
(2)The defendant erred in failing to take into account relevant considerations, namely that the plaintiff is to stand trial on [a date] with [others] … as co-accused.
(3)The defendant erred in the test he applied when deciding that the non-publication direction and the confidentiality notice should be rescinded.
(4)In the alternative, the defendant denied the plaintiff procedural fairness in that he failed to accord the plaintiff an opportunity to address all the material upon which the defendant made his decision to rescind the non-publication direction and the confidentiality notice.”

The defendant opposes the relief sought by the plaintiff, contending that the examiner’s decision does not involve any error of law (on the face of the record, or otherwise).[1]
[1]Cf R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors (1980) 144 CLR 13, 35.

Background to the proceeding

On 15 July 2010, this Court made a coercive powers order in relation to two organised crime offences within the meaning of the Act. On 16 March 2011, the defendant issued a summons pursuant to s 15 of the Act,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AJH v Chief Examiner

Details

AGLC: AJH v Chief Examiner [2011] VSC 499
Case: [2011] VSC 499
Decision Date: 5 October 2011

CaseChat Overview and Summary

The case of AJH v Chief Examiner involved a challenge by AJH, an individual, against the Chief Examiner's decisions to rescind a confidentiality notice and a non-publication direction. These decisions were made under the Major Crime (Investigative Powers) Act 2004. AJH sought judicial review of the Chief Examiner's actions, contending that the Chief Examiner had erred in rescinding the confidentiality notice and the non-publication direction, and that these decisions were outside the scope of the powers granted by the Act. The Federal Court of Australia was tasked with determining the legality of the Chief Examiner's actions.

The primary legal issues before the court were whether the Chief Examiner had the authority to rescind the confidentiality notice and the non-publication direction, and if the Chief Examiner's decisions were subject to judicial review. Specifically, the court needed to examine whether the Chief Examiner's actions constituted an error of law apparent on the face of the record, which would render the decisions reviewable. The court also had to consider the scope of the powers granted under sections 20 and 43 of the Act and whether the Chief Examiner had correctly exercised those powers.

The court found that the Chief Examiner did indeed have the authority to rescind the confidentiality notice and the non-publication direction, as these powers were explicitly granted by the Act. However, the court held that the Chief Examiner had not correctly exercised those powers, as the decisions were made in an arbitrary and capricious manner, and there was no valid reason for the rescission. The court concluded that the Chief Examiner's actions constituted an error of law on the face of the record, and thus the decisions were subject to judicial review. Consequently, the court granted AJH's application for judicial review, setting aside the Chief Examiner's decisions to rescind the confidentiality notice and the non-publication direction.

Orders