Cheatle, H.H. v Davey, B.W

Re: HARVEY HOLLAND CHEATLE and BERYL STURDY
And: BRENTON WAYNE DAVEY and K.J. PRESCOTT S.M.
No. G97 of 1989
FED No. 543
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)

CATCHWORDS

Administrative Law - Judicial review - magistrate making decision during committal hearing - refusal to disqualify himself for apparent bias - review of suppression order - magistrate requesting court staff to notify news media - request made under misapprehension of law as to duty of the court - whether apparent bias - whether breach of rules of natural justice - whether power to make order for review should be exercised.

Evidence Act 1929 (S.A.) s.69a

Evidence Act Amendment Act, 1989 (S.A.)

HEARING

ADELAIDE

#DATE 27:7:1989

ORDER

The application be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

I do not propose to reserve my judgment. This is an application under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision of the second respondent Mr K.J. Prescott SM made on 18 July 1989 whereby he declined an application to disqualify himself from presiding over a preliminary hearing in the Adelaide Magistrates' Court between the first respondent who was the informant and the applicants who were the defendants. The applicants stood charged on information with an offence against s.86A of the Crimes Act 1914 (Cth). Mr Prescott had embarked upon the preliminary hearing on 28 February 1989. It had then proceeded for 3-1/2 days before being adjourned to 17 July 1989. Certain events occurred on that day which are central to the decision now under challenge which was made on the following morning, on 18 July 1989.

1. Shortly after the charges were first laid, the applicants applied under s.69a of the Evidence Act 1929 (S.A.) as it then stood, for an order suppressing from publication their names and any information which would tend to identify them. That application was heard by Mr Harris SM, and granted. At that time s.69a empowered a court in South Australia where it considered "it desirable in the interests of the administration of justice, or in order to prevent undue hardship to any person . . ." to exercise the powers contained in that section which included the power to forbid the publication of the name of any party or witness. The order was based on the ground that the publication of the applicants' names would cause them undue hardship. The legislative policy of an earlier but similar section had been considered by the Full Court of South Australia in G. v. The Queen (1984) 35 SASR 349. At p 353 the Chief Justice observed,
   

". . . there is a legislative policy that there be freedom to publish the name unless one of the grounds mentioned in (s.69a) exists and the Court in the exercise of its powers under that section forbids publication."

It will be noted that…