BCD v Chief Examiner - [2012] VSC 193

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 12A of 2011

BETWEEN:

BCD	Applicant
and
THE CHIEF EXAMINER	First Respondent
CHIEF COMMISSIONER OF POLICE	Second Respondent

S CI 2012/663

BCD	Applicant
and
CHIEF COMMISSIONER OF POLICE	First Respondent
THE CHIEF EXAMINER	Second Respondent
THE SUPREME COURT OF VICTORIA	Third Respondent

---

JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2012
DATE OF ORDERS:	8 May 2012
DATE OF REASONS:	11 May 2012
CASE MAY BE CITED AS:	BCD v Chief Examiner
MEDIUM NEUTRAL CITATION:	[2012] VSC 193

---

ADMINISTRATIVE LAW – Jurisdiction of the Supreme Court to revoke a coercive powers order – Whether jurisdiction exists where the order has expired – Major Crime (Investigative Powers) Act 2004, ss 12, 12C, 13.

ADMINISTRATIVE LAW – Judicial review – Whether special circumstances demonstrated for delay in applying for review – Supreme Court (General Civil Procedure) Rules 2005, r 56.02(3).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	L C Carter	Lethbridges
For the Chief Examiner	O P Holdenson QC and A M Dinelli	Office of the Chief Examiner
For the Chief Commissioner of Police	P J Hanks QC and R J Sharp	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction and summary

These are my reasons for orders I made on 8 May 2012 dismissing an application by BCD under s 12 of the Major Crime (Investigative Powers) Act 2004 (‘Act’) for revocation of a coercive powers order (‘s 12 proceeding’) and an application by BCD under r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’) for an extension of time within which to commence a proceeding for judicial review of the coercive powers order (‘O 56 proceeding’).

The coercive powers order was made by Cummins J on 13 August 2008 and was for a period of six months (‘CPO’). It was subsequently varied and further extended. The CPO was last extended for six months on 4 August 2011 and expired on 3 February 2012.

Pursuant to the CPO, the Chief Examiner made a custody order requiring that BCD be brought before the Chief Examiner to give evidence on 21 May 2009.[1] BCD declined to take the oath or to make an affirmation and, on 17 July 2009, he was charged with an offence under s 36(3) of the Act (‘criminal proceeding’).
[1]BCD had been brought before the Chief Examiner on 7 November 2008 pursuant to an earlier custody order. BCD declined to take an oath or to make an affirmation and was charged with contempt of the Chief Examiner. The charge did not proceed for the reasons given by Lasry J in R v AX [2009] VSC 153 (22 April 2009) in relation to the making of a costs order in favour of BCD.

Section 36(3) of the Act provides that a person appearing as a witness at an examination before the Chief Examiner must not, when required either to take an oath or to make an affirmation, refuse…

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 BCD v Chief Examiner

Details

AGLC: BCD v Chief Examiner [2012] VSC 193
Case: [2012] VSC 193
Decision Date: 8 May 2012

CaseChat Overview and Summary

The case of BCD v Chief Examiner involved a dispute where BCD, the applicant, sought judicial review of a coercive powers order issued by the Chief Examiner under the Major Crime (Investigative Powers) Act 2004. The coercive powers order had already expired by the time the application for judicial review was lodged, leading to questions about the jurisdiction of the Supreme Court to revoke such an order post-expiration. The court had to determine if it had the authority to revoke the order, and whether the delay in applying for review constituted special circumstances warranting an extension of time under the Supreme Court (General Civil Procedure) Rules 2005.

The primary legal issues before the court were whether it had the jurisdiction to revoke the coercive powers order after its expiration and whether the delay in applying for judicial review could be excused due to special circumstances. The applicant argued that the coercive powers order was invalid and sought its revocation. The respondent contended that the order had already expired, rendering the application moot, and that the delay in seeking judicial review was not justified by any special circumstances.

The court held that it did not possess the jurisdiction to revoke a coercive powers order that had expired. It found that once an order ceases to have effect, there is no longer any order in existence that the court can revoke. Consequently, the application for revocation was dismissed as moot. Regarding the delay in applying for review, the court held that the applicant had not demonstrated any special circumstances that would warrant an extension of time. Therefore, the application for judicial review was dismissed due to the delay, and the coercive powers order was not revoked.

The Supreme Court dismissed the application for judicial review and declined to revoke the coercive powers order. The court found that it lacked jurisdiction to revoke an order that had expired and that the delay in applying for review did not meet the threshold for special circumstances. Consequently, no coercive powers order was revoked, and the applicant's application was dismissed.

Orders