BCD v Chief Examiner
[2012] VSC 193
•8 May 2012
| 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 |
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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 |
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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).
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| 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 or fail to comply with the requirement. Section 36(4) provides that a person who, without reasonable excuse, contravenes sub-s (3) is guilty of an indictable offence and liable to imprisonment for up to five years.
It appears from the material before me that BCD was legally represented when he appeared before the Chief Examiner on 21 May 2009.
The criminal proceeding will be heard in this Court in the second half of 2012.[2]
[2]On 8 October 2010, BCD was committed for trial in the County Court. On 13 February 2012, Coghlan J made an order under s 167 of the Criminal Procedure Act 2009 transferring the trial from the County Court to the Supreme Court.
The s 12 proceeding was commenced on 2 September 2011. BCD issued subpoenas against the Chief Examiner and the Chief Commissioner of Police which required them to produce a wide range of documents relating to the aborted examination of BCD and the subject matters of that examination.
Section 12(1) of the Act provides that the Supreme Court ‘may revoke a coercive powers order at any time before the expiry of the order’. Although the CPO was in force on 2 September 2011, it expired on 3 February 2012, prior to the hearing of the s 12 proceeding on 8 May 2012.
For the reasons set out below, I have concluded that the Court lacks jurisdiction to revoke the CPO; that the s 12 proceeding must be dismissed; and that the subpoenas issued in the s 12 proceeding must be set aside.
The O 56 proceeding was commenced on 9 February 2012 out of an abundance of caution, in case the s 12 proceeding was incompetent due to the expiration of the CPO. In the O 56 proceeding, BCD issued subpoenas against the Chief Examiner and the Chief Commissioner of Police which were in the same terms as those issued in the s 12 proceeding.
As the O 56 proceeding was commenced more than 60 days after the date when the grounds for the granting of relief first arose in 2008, the proceeding would be incompetent unless BCD satisfies the Court that there are special circumstances justifying an extension of time pursuant to r 56.02(3) of the Rules. BCD filed an application for an extension of time on 18 April 2012.
For the reasons set out below, I have concluded that BCD has not established special circumstances; that the O 56 proceeding must be dismissed; and that the subpoenas issued in the O 56 proceeding must be set aside.
Section 12 proceeding
The amended application in the s 12 proceeding[3] sought a revocation of the CPO and the subsequent orders that varied or extended it on the following grounds:
[3]Although leave was not sought for the filing of the amended application, the parties’ submissions were based on this document.
1The [Act] is invalid as it confers functions on the Supreme Court of Victoria which substantially impair its institutional integrity and are therefore incompatible with its role as a repository of federal jurisdiction under Ch III of the Commonwealth of Australia Constitution Act.
PARTICULARS
The Act engages the Supreme Court of Victoria in activity repugnant to the judicial process, including by:
(a)enabling applications for coercive power orders (‘CPO’) to be made ex parte and heard in secret: s 5;
(b)enabling a CPO to be made without any hearing: s 8;
(c)not requiring reasons to be provided for the Court’s determination that it is in the public interest to make a CPO: s 8;
(d)empowering the Chief Examiner to issue witness summonses for compulsory examination: s 15;
(e)creating the offence contained in s 36(3) of the Act; and
(f)deeming that any person who fails without reasonable excuse to answer questions or produce documents to the Chief Examiner has engaged in conduct that can be dealt with by the Supreme Court as if the contempt were a contempt of an inferior court: s 49.
2Each Order was made in violation of the Applicant’s rights under the Charter of Human Rights and Responsibilities (the Charter), particularly his privilege against self-incrimination, right to fair trial and his rights as a prisoner.
3The decision to apply for each Order was unlawful and in breach of s 38 of the Charter.
PARTICULARS
The Chief Examiner is a ‘public authority’ for the purposes of s 38 of the Charter as he is a public official within the meaning of the Public Administration Act (Vic): Charter, s 4(1)(a).
4The application for each Order was unlawful and in breach of s 38 of the Charter.
5The making of each Order was unlawful and in breach of s 38 of the Charter.
PARTICULARS
When it made, varied and extended the CPO the Supreme Court was a ‘public authority’ for the purposes of s 38 of the Charter to the extent that it was acting in an administrative capacity: Charter, s 4(j).
6With regard to the making of each Order, there were no reasonable grounds for the suspicion founded by the police member that an organised crime offence was, has been, is being or is likely to be committed.
7The Applicant was in custody for another offence yet no application was made under s 464B of the Crimes Act 1958.
At a directions hearing on 28 September 2011, counsel for the Chief Examiner stated that the CPO had been extended on 4 August 2011 for six months. On 25 January 2012, the solicitors for the Chief Commissioner of Police wrote to BCD’s solicitors to advise that the CPO was due to expire on 3 February 2012 and to assert that the s 12 proceeding would become incompetent after that date. On 2 February 2012, BCD’s solicitors replied stating that they did not accept that the s 12 proceeding would become incompetent on the expiration of the CPO. On 3 February 2012, the solicitor for the Chief Commissioner of Police spoke to BCD’s solicitor and informed her that the Chief Commissioner of Police would not apply for an extension of the CPO.
At the hearing of the s 12 proceeding on 8 May 2012, BCD submitted that, as the CPO was extant when the s 12 proceeding was commenced on 2 September 2011, the Court acquired jurisdiction under s 12(1) of the Act to revoke the CPO and that this jurisdiction did not lapse when the CPO expired. He also submitted that the word ‘revoke’ in s 12(1) must be read widely to include both a retrospective and a prospective revocation.
In support of his submissions, BCD relied on the following observations of Smith J in C v Chief Commissioner of Police:[4]
It is … strongly arguable that a coercive powers order having been made, a triable issue is created because the court had to reach a conclusion as to whether the prerequisites for the making of an order were satisfied. Further, any alleged offender named would have an interest in challenging the validity of the order. I note that it was conceded by counsel for the defendants that a coercive powers order is open to collateral challenge by application for judicial review of the witness summons order.
…
Section 12 is intended to give further control of the statutory scheme to the Supreme Court by enabling it to revoke coercive powers orders in appropriate circumstances. It is also noteworthy that the Parliament did not attempt to specify any test for revocation. In my view, s 12 is a very important safeguard provided by the Parliament for all citizens of this State.
…
…s 12 is a safeguard provision operating in a special situation. It empowers the independent judicature to intervene to terminate the operation of a coercive powers order. It is intended to provide a safeguard for all, which can be activated by anyone whose fundamental rights and liberties have been affected by the making of a coercive powers order and action taken under such an order, including the issuing of summonses to witness.
[4](2008) 20 VR 174, 183 [24], 187 [31], 193 [36] (‘C’s case’) (citations omitted).
BCD submitted that, if the Court’s power under s 12(1) of the Act is interpreted narrowly to permit only prospective revocation of a coercive powers order which has not yet expired, the section would be incapable of providing the important safeguards to which Smith J referred in C’s case.
BCD also relied on the second reading speeches for the Major Crime (Investigative Powers) Bill 2004 (‘2004 Bill’)[5] and the Major Crime Legislation Amendment Bill 2008 (‘2008 Bill’) which amended s 12 of the Act following C’s case. In the second reading speech for the 2004 Bill, the Minister for Community Services stated that the Supreme Court ‘can also revoke an order at any time, independently of notification by the police’.[6]
[5]This Bill became the Act.
[6]Victoria, Parliamentary Debates, Legislative Assembly, 5 October 2004, 614 (Sherryl Garbutt).
The 2008 Bill inserted some procedural provisions in the Act to facilitate applications for revocation. BCD relied on the facts that the 2008 Bill was passed following C’s case and that the Attorney-General did not say anything that restricted the broad view of s 12 expressed in that case.[7]
[7]Victoria, Parliamentary Debates, Legislative Assembly, 12 November 2008, 4566-8 (Rob Hulls, Attorney-General).
The Chief Commissioner of Police and the Chief Examiner submitted that s 12(1) of the Act unambiguously provided that the Court had jurisdiction to revoke a coercive powers order only prior to its expiration and that, as the CPO had expired, the Court lacked jurisdiction to revoke it. They submitted that an order that has expired has ceased to exist, such that there was nothing left to revoke. They also contended that even if the CPO had not expired, its revocation could only operate prospectively and would not affect anything that was done pursuant to it prior to its revocation.
The Chief Commissioner of Police submitted that the legislative context indicates that the word ‘revoke’ in s 12(1) means a prospective revocation. Reliance was placed on ss 12C and 13, which specify what must be done after a coercive powers order is revoked. Those sections provide that any witness summons issued in reliance on the coercive powers order must be revoked if the summons has not yet been served or the date for attendance has not passed. Section 13 also provides that the Chief Examiner must release from attendance each witness who has been summoned to attend an examination in reliance on the order.
In my opinion, the Court’s jurisdiction under s 12(1) of the Act is confined to revoking a coercive powers order prior to its expiration. Once the order has expired, the Court lacks jurisdiction to revoke it. This is so even if the proceeding seeking a revocation of the order was commenced prior to its expiration.
According to the Macquarie Dictionary, ‘expire’ means ‘to come to an end; terminate’. Once a coercive powers order expires, it ceases to exist and there is no subject matter in respect of which a revocation order can be made.
There is nothing in C’s case or in the second reading speech for either the 2004 Bill or the 2008 Bill that is inconsistent with my conclusion at [22] above. The important safeguards to which Smith J referred in C’s case apply provided that an application is made to the Court on a timely basis to enable the Court to make an order revoking a coercive powers order prior to its expiration. The statement in the second reading speech for the 2004 Bill that the Court can revoke an order ‘at any time, independently of notification by the police’ simply means that the Court can act on its own initiative prior to the expiration of a coercive powers order; it does not mean that such an order can be revoked after it has expired.
In the present case, BCD should have applied for an urgent hearing of the s 12 proceeding on 25 January 2012 when he was informed that the CPO would expire on 3 February 2012. Instead, he refused to accept that the expiration of the CPO would affect the Court’s jurisdiction.
As the CPO expired on 3 February 2012, the Court lacks jurisdiction to revoke it. In the light of this conclusion, it is not necessary for me to decide whether the power to revoke a coercive powers order in s 12(1) of the Act is confined to prospective revocation.
It follows that the s 12 proceeding must be dismissed. All the subpoenas that were issued in the proceeding fall with it and must be dismissed.
The Chief Commissioner of Police and the Chief Examiner have applied for their costs of the s 12 proceeding. Although BCD resisted an order for costs on the basis that the issues raised in the s 12 proceeding were difficult and had not previously been considered by the Court, I am not satisfied that there is any basis for departing from the normal rule that costs follow the event.
Order 56 proceeding
In the O 56 proceeding, BCD sought a declaration of invalidity in respect of the CPO as originally made on 13 August 2008 and in respect of all subsequent variation and extension orders. The grounds for the declaration in the amended application for review[8] are identical to the grounds in the s 12 proceeding which are set out at [13] above.
[8]Although leave was not sought for the filing of the amended application, the parties’ submissions were based on this document.
The parties agreed that, as the grounds for the grant of relief under O 56 arose in 2008, the O 56 proceeding would be incompetent unless the Court granted an extension of time under r 56.02(3) of the Rules. That rule provides that the Court shall not extend the 60 day time limit set out in r 56.02(1) ‘except in special circumstances’.
At a directions hearing on 13 February 2012 before Coghlan J, there was extensive discussion about the substance of the legal issues that BCD sought to agitate in this Court and the legal avenues for doing so. In that context, there was discussion about the appropriateness of the O 56 proceeding and whether special circumstances could be demonstrated to warrant an extension of time under r 56.02(3). The following exchange took place between Coghlan J and senior counsel for the Chief Examiner:
His Honour: We have an application for the order 56 proceeding. I’ve got to give leave, or somebody has got to give leave if it’s going to proceed.
Mr Holdenson: Someone has got to find special circumstances for it to be in existence. That’s what the rules provide.
His Honour: I wouldn’t press me, Mr Holdenson, because if I’m pressed I wouldn’t have much difficulty finding special circumstances here and now.
Mr Holdenson: I’m not saying not to find it, I’m just ensuring that what’s done is done regularly.
BCD did not file an affidavit in the O 56 proceeding. Accordingly, he has given no evidence as to the reasons for the delay. BCD’s solicitor swore an affidavit deposing to the existence of special circumstances. In that affidavit, the solicitor referred to the filing of the s 12 proceeding and to the communications to which reference was made at [14] above and then stated:
It is submitted that when [BCD] became aware that the [CPO] would not be renewed, [the O 56] proceeding … was initiated to ensure this Honourable Court would have jurisdiction to determine the arguments put forward in the [s 12 proceeding] in the event that the Court upholds the submission of the [Chief Commissioner of Police] that the [s 12 proceeding] is now incompetent.
BCD filed written submissions in support of his application for an extension of time. In those submissions, BCD stated:
The circumstances are plainly special.
First the Act contains far reaching powers and the applicant contends, inter alia, that the Act is unconstitutional. The legitimacy of the criminal charge depends on the validity of the Act.
Second, the applicant commenced s 12 proceedings in September 2011 and was advised within days of the expiry of the CPO (for the first time) of the [Chief Commissioner of Police’s] plan to argue that the proceedings were no longer competent.
Third, there was no delay on the part of the applicant in initiating the O 56 proceedings once advised that the [Chief Commissioner of Police] would not be seeking a further extension of the CPO.
Fourth, the purpose of the O 56 proceeding is to ensure that the points raised in the s 12 proceeding are determined by this Court.
The applicant relies on the observations of Coghlan J at the directions hearing conducted on 13 February 2012 … At that date neither respondent – contrary to the current submissions – indicated opposition to the extension of time.
The extension of time should either be granted now or the question reserved until full argument has occurred (as is often the practice).
The Chief Commissioner of Police and the Chief Examiner submitted that, in the absence of evidence explaining why BCD did not commence proceedings under O 56 within 60 days of the day he became aware of the CPO on 14 October 2008, the Court cannot find special circumstances. They contended that, the fact that BCD acted promptly once he became aware that the s 12 proceeding may be incompetent, did not constitute special circumstances.
The authorities make clear that whether special circumstances have been demonstrated depends on the facts of each case. Relevant considerations include the
reasons for the delay,[9] the length of the delay,[10] whether the applicant had legal representation, whether the respondent has suffered any prejudice as a result of the delay,[11] whether the respondent would be prejudiced by an extension of time,[12] whether the respondent opposes the extension of time, the injustice to the applicant if the decision or order is allowed to stand,[13] the interests of and justice to both parties,[14] and whether the applicant has an arguable case.[15] Another important consideration is the public interest in ensuring certainty and finality in public decision-making once a statutory time limit for challenging a decision has expired.[16]
[9]Hinch v County Court of Victoria [2009] VSC 548 (3 December 2009) [19] (‘Hinch’); Lednar v Magistrates’ Court (2000) 117 A Crim R 396, 410 [141] (‘Lednar’).
[10]Young v County Court [2005] VSC 311 (10 August 2005) [15] (‘Young’).
[11]Young [2005] VSC 311 (10 August 2005) [15].
[12]Lednar (2000) 117 A Crim R 396, 410 [141], [142].
[13]Lednar (2000) 117 A Crim R 396, 410 [143].
[14]Lednar (2000) 117 A Crim R 396, 410 [142], 411 [146].
[15]Lednar (2000) 117 A Crim R 396, 410 [141], [143]; Young [2005] VSC 311 (10 August 2005) [15].
[16]Lednar (2000) 117 A Crim R 396, 410 [142].
In the present case, the delay exceeds three years and there was no evidence to explain it. It appears that, at all relevant times, BCD was legally represented.
The Chief Commissioner of Police and the Chief Examiner have not asserted that they have suffered any prejudice as a result of BCD’s delay. Nor have they asserted that they would be prejudiced by an extension of time.
It is apparent from [32] to [33] above that the O 56 proceeding was filed out of an abundance of caution in case the s 12 proceeding was found to be incompetent. However, a failure to commence a proceeding under O 56 within 60 days on the erroneous view that an alternative remedy was available will not ordinarily constitute special circumstances.[17] Likewise, the mere fact that BCD is facing criminal charges does not amount to special circumstances.[18]
[17]Mann v Medical Practitioners Board of Victoria (2004) 21 VAR 429, 447 [58], 449 [67], 451[72]-[76]; Gatto v Felstead [2012] VSCA 14 (9 February 2012) [18].
[18]Hinch [2009] VSC 548 (3 December 2009) [1]-[2], [76].
At the directions hearing on 13 February 2012, neither the Chief Examiner nor the Chief Commissioner of Police conceded that there were special circumstances. Coghlan J’s comments reflected his Honour’s desire that the substance of BCD’s grounds for impugning the CPO be considered by the Court. His Honour was not in a position to, and did not, decide the question of special circumstances.
During the hearing on 8 May 2012, there was brief discussion about whether s 199(1)(c) of the Criminal Procedure Act 2009 provided an appropriate avenue for BCD to seek a pre-trial determination of the validity of the Act. No party suggested that that section could not be used to agitate at least some of the grounds set out at [13] above. This is not a case where the refusal of an extension of time under r 56.02(3) would leave BCD without any legal avenue for challenging the validity of the Act.
During the hearing, there was also brief discussion about the difficult issue of whether a judicial review remedy could be granted by a single judge of the Court in respect of an order made by another judge of the Court.[19] Even if it is assumed that BCD has an arguable case, however, in the light of the lengthy delay in commencing the O 56 proceeding, the absence of any evidence explaining that delay and the principles set out at [38] above, I am not satisfied that there are special circumstances in the present case.
[19]This issue was considered by James J in Haynes v A-G (NSW) (Unreported, Supreme Court of New South Wales, James J, 9 February 1996) 7-14. See also Ousley v The Queen (1997) 192 CLR 69, 101-2 (McHugh J), 140 n 303, 146 n 342, 150 n 357 (Kirby J). When the issue arises in Victoria, consideration will need to be given to r 46.08(b) of the Rules which provides that the Court may set aside or vary an order that was made without notice to the applicant.
It follows that the O 56 proceeding must be dismissed. All the subpoenas that were issued in the proceeding fall with it and must be dismissed. As neither the Chief Examiner nor the Chief Commissioner sought costs, no costs order will be made.
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