Brown, B.R. v Tahmindjis, A.J

438 CATCHWORDS

Practice and Procedure -

application f o r

appeal out

of time - obligation to show

Federal Court Rules Order 52 sub-r.15(2).

Administrative Law - judicial review

of magistrate's decision in

committal

proceedings - orders for committal

set

aside

and

magistrate

directed

discharge

defendants

- whether

such

direction

authorized

s.16(1)

Administrative

Decisions

(Judicial Review) Act 1979

whether direction to discharge

inconsistent with requirement in s.41(6)

of Justices Act 1902

(NSW) that the magistrate commit/discharge defendants pursuant to

an opinion formed by him on all the evidence.

Administrative Decisions (Judicial Review) Act 1977, s.16(1)

Justices Act 1902 (NSW), ss.41(6), 41A

Federal Court Rules Order 52 rule

15(1); sub-r.15(2).

BRUCE

RAYMOND

BROWN

v ALEXANDER JOHN

TAHMINDJIS,

NICHOLAS

CASSIMATIS,

THOMAS

ERVIN MOSS, JOHN NICHOLAS CASTANOS,

J.A.

HAYNES. PETER LAMB, A. WELLS, C.S. FOSTER

G236 of 1985

W: Bowen C.J.

6 September 1985

Sydney. .

I. .

IN THE FEDERAL COURT OF AUSTRALIA

)

)	No. G236 of 1985

i	NEW SOUTH WALES DISTRICT REGISTRY )

DIVISION

GENERAL

)

.- -

I '-

S,\

BEIWEEN:

<.a

BRUCE RAYMOND BROWN

.\ '

Appellant

_.--I

ALEXANDEX JOHN TAHMINDJIS

First Respondent

NICHOLAS CASSIMATIS

Second Respondent

THOMAS ERVIN MOSS

Third Respondent

JOHN NICHOLAS CASTANOS

Fourth Respondent

J.A. HAYNES

Fifth Respondent

PETER LAMB

Sixth Respondent

A .

WELLS

Seventh Respondent

C.S. FOSTER

Eighth Respondent

JUDGE MAKING ORDER:	Bowen C.J.
W E R E MADE:	Sydney
U:	6 September 1985

- 2 -

MINUTE OF ORDER

THE COURT ORDERS THAT:

The application

dismissed.

2.	The applicant pay	to the respondents their costs	of	the
application.

m: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

)

1	No. G236 of 1985

NEW SOUTH WALES DISTRICT REGISTRY

)

GENERAL DIVISION

)

BFILEEN:

BRUCE RAYMOND BROWN

Appellant

AND:

ALEXANDER JOHN TAHMINDJIS

First Respondent

NICHOLAS CASSIMATIS

Second Respondent

THOMAS ERVIN MOSS

Third Respondent

JOHN NICHOLAS CASTANOS

Fourth Respondent

J.A. HAYNES

Fifth Respondent

P m

LAMB

Sixth Respondent

WELLS

Seventh Respondent

C.S. FOSTER

Eighth Respondent

CORAM: BOWEN

C.J.

DATE: 6 September 1985

- 2 -

REASONS FOR JUDGMENT

This is an application by Bruce Raymond

Brown

for an

order extending time in which

to file and serve a notice of

appeal from a judgment of FOX J. given on

30 April 1985. Under

Order 52 rule 15(1) of the Federal Court Rules a notice of appeal

should be filed and served within

21 days after the date when the

judgment appealed from was pt-DIIDUnCed. However, sub-r.	15(	2 )
alleviates this position. It is in the following terms:

"15.

( 2 )

Notwithstanding

anything

the

preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to

file and serve a notice

of appeal."

Sub-rule 15(2) gives the Court or

a Judge a discretion

give leave

to file and serve a notice of appeal but this

discretion	is	only enlivened if the applicant shows "special
reasons".

This matter relates to what is sometimes referred to

the

"Social

Services

Conspiracy

Case".

Mr. Brown engaged

upon the hearing of committal proceedings in relation

information and charge of conspiracy against Doctors Tahmindjis,

Cassimatis,

Moss

and Castanos and numerous other defendants.

After the proceedings had been in progress for

a lengthy period,

the Crown decided to proceed no further with that general consplracy charge. Many of the defendants were then discharged. However, oral charges of particular conspiracies of a more

limited character were laid against these four doctors.

Mr.

- 3 -

these more limited oral chargeSAand eventually he made the orders

committing the doctors for trial. They then brought proceedings

before Fox J. under the Administrative Decisions (Judicial Review

Brown continued to hear committal proceedings in relation to them.

It is to be noted that the four doctors are respondents

to Mr.

Brown's application for leave to file and serve a notice

appeal.

The other four respondents, Messrs. J.A. Haynes,

Peter Lamb,

A .

Wells and

C.S.

Foster were informants in the

committal proceedings. It will be convenient to refer to the

four respondents against whom committal orders were made as the

"doctors" and to the other four respondents as the "informants".

The applications for orders of review were listed for

hearing before Fox J. on 6

May 1985.

At the commencement of the

hearing it appeared that the legal representatives of the four

doctors had recently ascertalned that during the course

of the

committal proceedings Mr. Brown had telephoned the solicitor

handling the case for the informants and communicated matters

concerning the case to him without the knowledge

or consent of

the doctors. The doctors applied to

Fox

to amend their

applications for orders of review. Leave to amend was granted

and the proceedings were adjourned to

8 May 1985.

The amended

applications sought orders setting aside the decislon of the

magistrate to commit each of the four doctors for trial in

- 3 -

Brown continued

to hear committal proceedings

In relation to

these more limited oral charges and eventually he made the orders commltting the doctors for trial. They then brought proceedings before Fox J. under the Administrative Decisions (Judicial Revlew

for orders setting aside the committal orders made against

them.

It is to

noted that the four doctors are respondents

to Mr.

Brown’s application for leave to file and serve

a notlce

of appeal.

The other four respondents, Messrs.

J . A .

Haynes,

Peter Lamb, A.

Wells and

C.S.

Foster were informants

in the

committal proceedings.

It will be convenient to refer to the

four respondents against whom committal orders were made

as the

“doctors“ and to the other four respondents as the “informants“.

The applications for orders of review were listed for

hearing before Fox

J. on 6

May 1985. At the commencement of the

hearing it appeared that the legal representatives of the four

doctors had recently ascertained that during the course of the

commlttal proceedings Mr. Brownflad

telephoned the solicitor

handling the case for the informants and communicated matters

concerning the case to hlm without the knowledge

or consent of

the doctors. The doctors applied

to Fox

to amend their

applications for orders of review. Leave to amend

was granted

and the proceedings were adjourned to

8 May 1985.

The amended

applications sought orders setting aside the decision of the

magistrate

commit each of the four doctors for trial in

- 4 -

respect of offences under para.86(l)(e) of the Crimes Act

1914 on

the ground, inter alia, that the effect

the communication

and/or its terms constituted breach	of the rules of natural
justice.

The hearing

of the amended applications was commenced on

May and continued, until

May

1985

when judgment was

reserved. Although initially the magistrate had not attended the

hearing of proceedings before Fox J. (apparently upon the basis

that he would submit to such order as the Court might make) once

the applications were amended to allege denial of natural justice

by the magistrate

he appeared and was represented by counsel and

gave his version of

his conversations with the solicitor.

On 31

May 1985 Fox J. handed down his decision holding

that each of the doctors succeeded

the ground of denial of

natural justice and therefore that the orders

for committal

should be set aside.

set down for hearing on

June 1985

outstanding matters relating

to the form of orders that should be

made and the question of costs.

Mr.

Brown was represented by

counsel at the hearing on

5 June

1985.

At one stage it was

suggested that an order

for costs should be made against

Mr.

Brown In respect of the aborted committal proceedings. Reasons

were advanced on his behalf why such an order should not be made.

At the conclusion of the hearing on

5 June 1985 Fox J. stated the

orders he

proposed to make and indicated that

he would give his

reasons for the orders.

There was left outstanding the question

.. - 5 -

of the discharge of the four doctors and the costs of the

committal proceedings. His Honour lndicated that

did not

propose to make any further orders in respect of

Mr.

Brown so

that the proceedings so far as he was concerned were closed and

he ordered that

Mr. Brown be relieved from further attendance.

On or about 29 July 1985 the solicitor for

Mr. Brown was

informed that final orders would be handed down on

30 July 1985.

He was unable to attend at court at that time and was not served with the final orders. There followed a period during whlch hls solicitor experienced some difficulty in obtaining copies of the final orders and further reasons for judgment. The circumstances

furnish some explanation for the delay in filing a notice	of
appeal.

It is necessary now to turn to the orders made by

Fox J.

on 30 July 1985 and the grounds of appeal which Mr. Brown seeks

to pursue if leave is granted. The orders made by	Fox J. on 30
July 1985 are as follows:

1.	The order for committal the subject	of these proceedings
be set aside.

2 . The matter be referred to the first respondent

(a) to

discharge

the

applicant

respect

the

information and charge against him.

(b)

wlth the consent%f the parties to make such order

or orders for costs of the proceedings before

him

- 5 -

the

discharge of the four doctors and the costs of

the

committal proceedings. His Honour indicated that

did not

propose to

make any further orders in respect of Mr. Brown

that the proceedings so far as he was concerned were closed and

he ordered that

Mr. Brown be relieved from further attendance.

On or about 29,July 1985 the solicitor for Mr. Brown was

informed that final orders would

be handed down on

30 July 1985.

He was unable to attend at court at that time and was not served

with the final orders. There followed a period during which his

/’

solicitor some’ experienced4idifficulty in

obtaming copies of the

final orders and further reasons

for judgment. The circumstances

furnish some explanation for the delay in filing a notice of

appeal.

It is necessary now to turn

to the orders made by

Fox J.

on 30 July

1985 and the grounds

of appeal which Mr. Brown seeks

to pursue

if leave is granted. The orders made by Fox J. on 30

July 1985 are as follows:

1.	The order for committal the subject	of	these proceedings
be set aside.

The

matter be referred to the first respondent

(a) to

discharge

the

applicant

respect

the

information and charge against

him.

(b)

with the consent of the parties to make such order or orders for costs of the proceedings before him

- 6 -

or any part or parts thereof as to him seems

proper.

(c)	alternatively to (b) to take such other steps with the consent of the parties as to him seem proper with a view to having such order or orders made for the costs of the proceedings or any part or parts thereof as may be fitting.

3 . The second respondent pay the costs of the appllcant of

the proceedings in

this Court.

4 .

There

order

the

costs

the

first

respondent of proceedings in this Court.

Liberty

apply.

The reference in para.2(a) of these orders is to the

original information and charge against each doctor, that

is the

wide conspiraky. The reference in para.1 is to the order for

committal in relation to the lesser oral charge of conspiracy

against each doctor in respect of which no information has been

filed.

The notice

of appeal which is proposed to be filed if

leave is granted is as follows:

“1.

The appellant appeals from order

2 in the

judgment of the Honourable Mr. Justice

Fox given on 30 July 1985 at Sydney.

- 7 -

GROUNDS

2 .

The

decisions

the

subject

the

applications before his Honour were not

decisions of an administrative character

within the meaning of the Administrative

Decisions (Judicial Review) Act,

1977.

3 . The making of the order appealed from was

not authorised by sub-section 16(1) of

the said Act.

The said order is inconsistent

with the

obligation imposed upon the appellant by

section 41(6) of the Justices Act, 1902

(N .S .W. )

as made applicable by section

85E of the Crimes Act,

1914 or section 68

of the Judiciary Act,

1903 or both. '

ORDERS SOUGHT:

The appellant seeks no order in

lieu of the order appealed from."

It will be noted that

Mr. Brown appeals only from order

2 in the Orders

of Fox J. given on 30 July 1985. It may be

mentioned in passing that

if ground 2

in the notice of appeal

were upheld, it would mean that there was	no	jurisdiction to
make Order 1.

I turn now to the grounds

of appeal set

forth

in the

notice of appeal.

- 8 -

Paraqraph 2

Counsel for Mr. Brown indicated that it was desired to

challenge the correctness of the decision of the

Full Court in

the

Federal

Court

v Moss (1983) 49 ALR 533.

was

submitted that remarks made in the judgment of the High Court in Murphy v The Oueen (14 August 1985; unreported) should lead the Federal Court to reconsider the decision in Lamb v Moss. It was

also indicated that Mr.

Brown would seek to take the matter to

the High Court

if unsuccessful in the Federal Court.

my opinion nothing that was said in Murphv

Queen is inconsistent with the decision in v

Moss and I see

no prospect of the Full Court of the Federal Court agreeing to review this decision in the present case. Whether if Mr. Brown obtained an extension of time and was unsuccessful in arguing

that Lamb v Moss

should be over-ruled by the Federal Court he

would be able to obtain from the High Court leave to appeal is

problematical.

Counsel for Dr. Tahmindjis and

Dr.

Castanos submitted

that since Mr. Brown had not raised this matter before

Fox J. he

should not now be allowed

raise it for the first time upon an

appeal.

referred to University of Wollonqonq

Metwallv

(No.2) 1985 59 ALJR 481.

The Court (Gibbs C.J., Mason, Wilson,

Brennan, Deane and Dawson JJ.) at p.483 said:

"It is elementary that a party is

bound by the

conduct

his case.

Except in the most

- 9 -

exceptional

circumstances,

would

contrary to all principle to allow a party,

after a case had been decided against him,

raise a new argument

which,

whether

deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do S O . "

It should

perhaps

mentioned

that

"exceptional

circumstances" in practice generally have been seen

arise

where justice requires that the appellant be allowed

to raise the

new matter and the party adversely affected can be protected by

an appropriate order for costs or otherwise.

Counsel

for Dr. Moss and

counsel

for

Dr.

Castanos

adopted the argument that Mr. Brown should not be allowed to

raise new matter on the appeal.

I may say that I do not consider

exceptional circumstances exist in the present case which would

require that

Mr. Brown be allowed to raise new matter.

may be

mentioned that counsel for Messrs. Haynes,

Lamb, Wells and Foster, the four informants, while making some

general submissions regarding the grounds in the notice of appeal

did not oppose the application for extension of time.

Paraqraph 3

The relevant parts of sub-s.l6(1) of the Judicial Review

Act are as follows:

"16.(1)

an application for an order of

review in respect

of a

decision, the Court

may, in its discretion, make all or any	of the
following orders:

- 10 -

(a) ...

!	(b) an order referring the matter to which

the decision relates to the person who

decision

the

made

further

for

consideration, subject to such directions

as the Court thinks fit;

(d)	do, or to refrain from doing, any act or

an order directing any of the parties to the doing, of which the Court considers

necessary'

to do justice

between

the

parties.

These provisions seem literally wide enough to justify the orders

made by

Fox J.

However, it is argued by counsel for

Mr. Brown

that	they should be read consistently with what was done at

common law, when reviewing an administrative decision under one

of the prerogative writs. Thus, it is said a proper order would

be to declare what the law was and then remit the matter to the

magistrate

deal

with

it in accordance wlth the law

declared.

(See Wentworth v Roqers (1984) 2 NSWLR 422 per Hutley

J.A.

at p.426). It was suggested that it was wrong to make

specific orders directing	Mr. Brown to act as set forth in order
2.

As was made clear by the reports on which it was based,

the

Judicial

Review

Act

was

designed

sweep

away

the

technicalities of the old law relating to prerogative writs and

to enable justice to be done on

a simple review procedure.

do not

consider

that

sub-s.16(1) is

limited

the

manner

Suggested. It is probably unwise on an application for an extension of time to appeal to attempt to expound the limits of

- 11 -

sub-s.l6(1). At all events it is unnecessary because the point

is again well taken by the various counsel for the doctors that

this argument was not raised before Fox

and should not be

allowed to be raised now. It is further pointed out that to

declare the law in general terms and then refer the matter back

to Mr. Brown directing him to proceed according to

law would not

be a satisfactory course as Mr. Brown should

now be regarded as

disqualified by reason of his denial

of natural justice to the

doctors. If another magistrate undertook the case

he would have

to start afresh which, having in mind the magnitude of the

proceedings, would	be a most unjust solution.
Parasraph 4

As I understand

this

ground

said

that

the

magistrate's *power to

discharge

can

only

derived

from

sub-s.41(6) of the Justices Act and that the condition precedent

to the exercise

of the power to discharge is the formation of

opinion by the magistrate. Sub-section 41(6) has been amended

from time to time the last occasion being in 1985. It was not

entirely clear which form of sub-s.41(6) was being relled upon.

Perhaps the particular form of sub-section does not matter for

the purpose of this argument which asserts that the Federal Court

on an order to review cannot direct the magistrate to hold any particular opinion about the facts.

I leave on one side the question whether a Federal Court

judge exercising his discretion under sub-s.l6(1) of the Judlcial

- 12 -

Review Act is unable

to give a magistrate directions which

are in

no way dependent upon sub-s.41(6).

As at present advised, while

I can see that

a direction should not be given by

a magistrate to

do something which a statute forbids him

to do, I fail to see why

a direction cannot be given

to him which

empowers and requires

him to

do things unprovided

for by statute.

However that may be, what is directed in Order 2(a) is

not inconsistent with sub-s.41(6). Mr. Brown in his private talk

with the solicitor for the informants and in the committal

proceedings and in his evidence before

Fox J. has made clear his

view of the original general information

and charge of conspiracy

to which Order 2(a) relates. Clearly,

he was of opinion that the

defendants ought not to be put on trial in relation to the

original char'ge.

He has discharged defendants other than those

against whom a limited conspiracy was orally charged. Everyone, including the Director of Public Prosecutions,

now appears to be

in agreement that the four doctors will have to be discharged	in
respect of the original information and charges against them.

This is what

Fox J.

in Order 2(a) has directed. What Interest

Mr. Brown

has for delaying or resisting that result escapes me.

The question whether the four doctors should be discharged in respect of those charges is slmply not an issue.

The directions in Order 2(b) and

appear to be uncontentious. Section 41A(1) of the Justices Act

provides :

- 13 -

"41A.

(1) The Justice or Justices making any

order

discharging a

defendant

the

information then under inqulry may in and by

such order adjudge that the informant shall

pay to the clerk of the court to

by him

paid to the defendant such costs

to such

Justice or Justices seem just and reasonable."

The magistrate making an order for discharge under Order

2(a) would appear

have ample authority to order costs in

relation to those proceedings. Again I am unable to discern any interest in Mr. Brown to resist these orders. Certain statements were made from the Bar table as to consents having been given on

the question of costs,

but I

see no need to explore this aspect.

The reason why it I s sought to obtain an extension of time to enable an appeal to be lodged

to be found in para.26

of the affidavit of Henry Haymann Pakula sworn on

2 2 August 1985

and

filed

support

the

application.

stated

para.26:-

"26. The view is taken within the Attorney

General's Department

of New South Wales that

the nature of Order

of the Orders made by

Mr. Justice

Fox on 30th July, 1985,

raises

questions as to the proper discharge of the powers vested in Magistrates when exercising

invested

jurisdiction

hearing

committal

proceedings

relation

offences

under

Commonwealth laws."

The point

vlew stated

this

paragraph

understandable. Indeed, in expressing my views on the polnts

which have been ralsed

I do not intend to suggest that in an

- 14 -

appropriate

case

the

questions

raised

may

not

worth

consideration by a

Full Court. My judgment is that this is not

an appropriate case. My view of the points raised is one of

the

factors which

have to consider in exercising the discretion

conferred

sub-r.15(2).

There

are

other

factors

considered. The proceedings against the doctors have taken

very long time. They are the preliminary stage

criminal

proceedings.

The doctors have now a strong case for the speedy

resolution of the proceedings.

So far as Mr. Brown is concerned

he does not, by the grounds taken in his draft notice of appeal,

seek to challenge the learned Judge's decision that by his action

in communicating his views to the solicitor

for the informants

denied the doctors natural justice. The points which

he seeks to

raise in

his draft notice of appeal were not raised before

Fox J.

Furthermore, hr.

Brown appears to have no pecuniary

or personal

interest in raising these questions.

In the result,

I am of opinion that

should refuse

leave to

file and serve the notice

of appeal. The application

will be dismissed

with costs.

I certify that

t h i ~

and the+h,i&A(/Jy'

precedlngpages

a r e atrue c o p y o f t h e

Reasolls f o r Juigment hereln of hls Honour the Chief Judga, SlrYlgelBowen

[1985] FCA 438

6 Sep 1985