Butteriss v O'Riley

[1996] HCATrans 392

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M38 of 1996

B e t w e e n -

DAVID GERARD BUTTERISS

Applicant

and

PETER FRANCIS O’RILEY

Respondent

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 1996, AT 11.05 AM

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court pleases, I appear on behalf of the applicant in this matter. (instructed by Allan McMonnies)

MR T.V. HURLEY:   If the Court pleases, I appear on behalf of the respondent in this matter. (instructed by R.C. Beazley, Victorian Government Solicitor)

BRENNAN CJ:   Yes, Mr Wendler.

MR WENDLER:   If the Court pleases, it is appropriate that there be a grant of special leave to appeal in this matter for the following reasons:  first, the application raises matters of general importance to the administration of justice in so far as the law concerning statutory certificates are concerned; second, the application raises a matter where there is a conflict of authority between two courts in two different States, albeit in the context of this application, the conflict of authority is between the Victorian Court of Appeal and a single judgment of a judge in the State of New South Wales.

If I can return to the first set of reasons why, in my respectful submission, special leave to appeal should be granted.  As your Honours know, statutory certificates are utilised in both the civil and criminal law in various circumstances.  The certificates are raised in aid of proof in relation to the criminal law, where there is a situation requiring proof in that special way.

BRENNAN CJ:   What is the issue to be proved here that the certificate related to?

MR WENDLER:   The certificate in this case purported to empower a person in a particular way.

BRENNAN CJ:   To do what?

MR WENDLER:   To prosecute particular offences or to lay informations in relation to particular offences, but it purported to authorise the particular functionary pursuant to a non-existent or repealed piece of legislation.

BRENNAN CJ:   What is that?

MR WENDLER:   The 1958 Fisheries Act for the State of Victoria.

BRENNAN CJ:   Because the instrument said 68 instead of 58?

MR WENDLER:   That is right.

BRENNAN CJ:   Really, Mr Wendler, how much longer have we got to listen to that sort of an argument?

MR WENDLER:   Well, your Honour, no judicial officer in this country is empowered to amend an Act of Parliament and that, in reality, is what has happened in this case.  There was no evidence before either the primary judge or indeed the Court of Appeal as to the state of mind of the person who issued that certificate.

BRENNAN CJ:   All right, well now we understand that.  In other words, the certificate said Fisheries Act 1958 and if it had been valid it would have been the Fisheries Act 1968. Is that right?

MR WENDLER:   Well it purported to authorise a particular person in relation to a piece of legislation which had been repealed.  The whole issue of ‑ ‑ ‑

BRENNAN CJ:   Is the proposition this, that the invalidity flows from the fact that the year assigned to the Fisheries Act was 58 instead of 68?

MR WENDLER:   The invalidity flows from a principle of law in relation to certificates which suggest that they are evidence of what they purport to certify.

BRENNAN CJ:   Now, did it purport to certify that he was authorised under the Fisheries Act 1958?

MR WENDLER:   That is right; it purported to authorise that.

BRENNAN CJ:   Now, if it had purported to authorise him under the Fisheries Act 1968, would it have been invalid?

MR WENDLER:   Well, on a second limb of our submission, no, but assuming your Honour’s proposition, yes.

BRENNAN CJ:   Then the mistake is that it was 58 instead of 68.

MR WENDLER:   But that is not a pedestrian mistake, it is a mistake of some significance.

BRENNAN CJ:   That was the mistake, that is all I am asking you.

MR WENDLER:   Who knows whether it was a mistake; there was no evidence before the primary judge or the Court of Appeal.

BRENNAN CJ:   Right, what is your other point?

MR WENDLER:   One of the decisions that has been reproduced on this issue of the legality of the certificate in the folder of the material is a judgment by his Honour Justice James ‑ ‑ ‑

GUMMOW J:   That is on the New South Wales Listing Devices Act, is it not?

MR WENDLER:   That is right.  Now there the situation was a word processor had spewed out a number of listening device warrants and the person so authorised to raise the listing device and to listen to various conversations, his name was left off the warrant.  Now a submission was made by the defendants in the suit for the declaration as to the legality of those warrants that the judge could just fill in the name; it was obviously a mistake, a slip, you could just fill it in and it would not make any difference.  The legal effect of that, of course, would be for the raising of a retrospective warrant, and that is the reality here; the legal effect of this is to raise, as it were, or to cure, a particular authority by reference to a piece of legislation which was at the time extinct.

Now, in my respectful submission, that necessarily raises a conflict of authority between two superior courts in two different States. The Victorian Court of Appeal in its judgment has clearly held that it is appropriate simply to fill in the statutory authority, to cure it in the manner in which it so cured. Now, in my respectful submission, that is not appropriate in the circumstances of the raising of statutory certificates and, in that sense, there is a real issue concerning the legality of the construction of these types of certificates. They, of course, exist right throughout the law in this country, for instance: certificates are used in relation to motor vehicle prosecutions concerning blood alcohol; in the criminal law in relation to the identification of drugs; there are certificates raised for the accreditation of diplomats; there are, indeed, as mentioned in section 74 of the Constitution, of the potential of raising a certificate in a special case - not that that would ever occur today.

GUMMOW J: What on earth does section 74 of the Constitution have to do with this case?

MR WENDLER:   It is contemplated, as I said, by that section, that a certificate can be raised in this Court in relation to a special constitutional issue; I only mention it in passing as a general submission, that these certificates are very important and they are evidence of what the certificate certifies the situation to be.  I mean, a very practical example of this case would be a warrant whereby the police come to a man’s door with a warrant to search his house; what if that warrant were defective and it did not specify the address, did not specify the person?  The person would be entitled to refuse entry.  Could the police officer say, well I will correct it, I will just add in those slips, those things that are non-existent and take it from me that I have the proper authority.  That is the ramification of this particular application, and to the extent that his Honour Justice James was not prepared to engage in that type of exercise, contrasted with the treatment by the Court of Appeal, when it was confronted with that defective statutory instrument or certificate, there is a real conflict of authority in relation to this area.  It is an important area; it is not an area where, in my respectful submission, one can simply fill in for convenience matters which go to the very legality of these instruments.

If the Court pleases, that is the nature of the application for special leave to appeal.

BRENNAN CJ:   We need not trouble you, Mr Hurley.

This application is without merit.  Special leave is refused.

MR HURLEY:   I seek costs, if your Honours please.

MR WENDLER:   Your Honour, it is a criminal matter.  It is borne out of a criminal prosecution.  The normal practice in this Court is not to grant costs in relation to criminal matters. 

GAUDRON J:   It is not comparatively clear that it is a criminal proceeding, is it?  What was the nature of the proceeding in the Supreme Court?

MR WENDLER:   It commenced in a court of summary jurisdiction as a criminal prosecution pursuant to the penal provisions of the Fisheries Act.

GAUDRON J:   Yes.  Then what was the nature of the proceeding in the Supreme Court?

MR WENDLER:   It was an appeal by virtue of the appeal process set out in the Magistrates Courts Act in the State of Victoria and procedurally it was framed by a Master of the Supreme Court to a single judge of the Supreme Court of Victoria to consider certain questions so framed.  But nevertheless, the ultimate issue was one which involved the alleged ‑ ‑ ‑

GUMMOW J:   Costs were made by the primary judge and by the Court of Appeal, were they not, costs were ordered there?

MR WENDLER:   Yes, I think that is right.  But that does not necessarily mean that costs should be made here.

GUMMOW J:   No, but it does not suggest they should be.

MR WENDLER:   Your Honours, I have with me - I have managed to unearth some matters which involved applications for special leave to appeal which concerned, in one case, the construction of the Bail Act in the State of South Australia some time ago.  No costs were ordered in that case.  Also in another matter described as C14 of 1992 where your Honour the Chief Justice did not grant costs in an application involving section 40 of the Judiciary Act which also was borne out of a criminal matter, although it had a constitutional dimension.  No costs were ordered in those cases.  That is all I wish to say.

BRENNAN CJ:   Special leave will be refused with costs.

AT 11.16 AM THE MATTER WAS CONCLUDED