BCD v Chief Examiner

Case [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

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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

  1. 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’).

  1. 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. 

  1. 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.

  1. 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…

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BCD v Chief Examiner [2012] VSC 193
Case
[2012] VSC 193
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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