Director of Public Prosecutions (SA) v Cummings
[2025] SADC 64
•11 June 2025
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v CUMMINGS
[2025] SADC 64
Judgment of his Honour Judge Burnett
11 June 2025
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - RESTRAINING OR FREEZING ORDER
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
The applicant has obtained a restraining order against the respondent pursuant to s 24(1) of the Criminal Assets Confiscation Act 2005 (SA)(the Confiscation Act). The order was sought on the basis that it was proposed that the respondent be charged with a serious offence. In fact, although there was no evidence before the Court at the time that the restraining order was made, the respondent had been charged with such an offence.
The respondent has brought an interlocutory application that a question of law be referred to the Court of Appeal. The question of law that is sought to be referred is:
In its application to individuals who are proposed to be but have not yet been charged with an offence which if convicted of that offence, would render them a “prescribed drug offender’ (as that term is defined within the Act), is s 24(1) of the Criminal Assets Confiscation Act (2005)(SA) a valid law of South Australia?
The respondent contends that s 24(1)(a), insofar as it applies to a person proposed to be charged, is invalid because it is incompatible with the principle identified by the High Court in Kable v Director of Public Prosecution (NSW) (Kable) (1996) 189 CLR 51 that legislation that purports to confer on the court a power or function which substantially impairs the court’s institutional integrity is incompatible with the court’s role as a repository of federal jurisdiction and is constitutionally invalid: Kable (1996) 189 CLR 51, Attorney-General (NT) v Emmerson (2014) 253 CLR 93 referred to.
The respondent has issued notices in compliance with s 78B of the Judiciary Act 1903 (Cth)(the Judiciary Act). The Attorney-General of South Australia has intervened in these proceedings pursuant to s 78A of the Judiciary Act. The applicant and the Attorney-General oppose the referral of the question of law to the Court of Appeal.
Held:
1. The application for the referral of the question of law to the Court of Appeal is dismissed.
2. A restraining order is an interlocutory order. Such an order can be revoked or amended and it is not determinative of the rights of the parties: Licul v Corney (1976) 180 CLR 213 applied.
3. Section 44(2) of the District Court Act 1991 (SA) gives the Court a broad discretion whether to refer a question of law. A number of matters will inform the exercise of that discretion: Varnhagen v State of South Australia [2022] SASC 108, Barton v Westpac Banking Corporation (1993) 50 ALR 397, Freehills in the matter of New Tel Limited (in liq) ACN 009 068 955 (No 2) (2008) 250 CLR 246 applied.
4. In the context of this application, matters that are of significant weight include that the matter is of general importance as it will apply widely to other respondents in the same position and involves consideration of the exercise of judicial power. This is a matter that favours the referral. Matters of significant weight that are against referral include that the restraining order does not finally determine any rights and the applicant can bring a new application for a restraining order on the ground that the respondent has in fact been charged and that the departure from the general framework where a judge determines issues of fact or law which may be corrected on appeal will in this case disadvantage the applicant and the Attorney in that they will not be able to rely upon a Notice of Alternate Contention or argue that leave should not be given (as any appeal is to a single judge and requires leave).
5. Taking into account all of the relevant factors, individually and in the context of each other, the application for referral should be refused.
Criminal Assets Confiscation Act (2005) (SA) ss 24, 46(2), 46(1); Judiciary Act 1903 (Cth) s 78A; Controlled Substances Act 1984 (SA) s 32(1); District Court Act 1991 (SA) ss 44, 44(2); Uniform Civil Rules 2020 (UCR) rr 211.1, 212.3(b), referred to.
Kable v Director of Public Prosecution (NSW) (1996) 189 CLR 51; Attorney-General (NT) v Emmerson (2014) 253 CLR 93; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Garlett v Western Australia (2022) 277 CLR 1; Barrett v The King [2024] WASCA 169; Licul v Corney (1976) 180 CLR 213; Zheng v Commissioner of Australian Federal Police (2019) 136 SASR 303; Ruzehaji v Commissioner of the Australian Federal Police (2015) 124 SASR 355; The Commissioner for Australian Federal Police v Tjongosutiono [2018] NSWSC 48; Mai v Commissioner of the Australian Federal Police [2002] VSCA 38; Saad v Commissioner for Australian Federal Police [2021] VSCA 246; International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319; Director of Public Prosecutions (SA) v Scalzi [2024] SASC 2; Hu v Director of Public Prosecutions (2017) 127 SASR 460; Freehills, in the matter of New Tel Limited (in liq) ACN 009 068 955 (No 2) (2008) 250 ALR 246; Collins v Black [1995] 1 VR 409; McKenzie v Ordish [1922] SASR 21; R v The Industrial Court (SA) and others, exp Hunkin [1934] SASR 208; Varnhagen & Ors v State of South Australia and Anor [2022] SASC 108; Barton v Westpac Banking Corporation (1983) 50 ALR 397; Aquagenics Pty Ltd v Break O’Day Council (2009) 18 Tas R 364; Director of Public Prosecutions for the State of South Australia v Mrishaj [2024] SADC 101, applied.
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v CUMMINGS
[2025] SADC 64Civil
This judgment concerns an interlocutory application by the respondent to refer a question of law to the Court of Appeal. The question of law that is sought to be referred was stated in the following terms:
In its applications to individuals who are proposed to be but have not yet been charged with an offence which if convicted of that offence, would render them a “prescribed drug offender’ (as that term is defined within the Act), is s 24(1) of the Criminal Assets Confiscation Act (2005)(SA) a valid law of South Australia?
Section 24(1) of the Criminal Assets Confiscation Act 2005 (SA)(the Confiscation Act) gives the Court the power to make a restraining order over specified property of a person if, inter alia, it is proposed to charge that person with a serious offence, as defined. In this case, a restraining order was made against the respondent on the basis that it was proposed to charge him with a serious offence.
The respondent contends that s 24(1)(a), insofar as it applies to a person proposed to be charged, is invalid because it is incompatible with the principle identified by the High Court in Kable v Director of Public Prosecution (NSW) (Kable).[1] In Attorney-General (NT) v Emmerson (Emmerson),[2] French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ expressed that principle in the following terms:
The principle for which Kable stands is that because the Constitution establishes an integrated court system and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a power or function which substantially impairs the court's institutional integrity, and which is therefore incompatible with that court's role as a repository of federal jurisdiction, is constitutionally invalid.
[citations omitted]
[1] (1996) 189 CLR 51; [1996] HCA 24.
[2] (2014) 253 CLR 93, [40]; [2014] HCA 13. See also Fardon v Attorney-General (Qld) (Fardon) (2004) 223 CLR 575, [15]; [2004] HCA 46 where Gleeson CJ re-stated the Kable principle in virtually identical terms. See also Garlett v Western Australia (2022) 277 CLR1, [7]; [2022] HCA 30.
The respondent has issued notices in compliance with s 78B (of the Judiciary Act 1903 (Cth)(the Judiciary Act). The Attorney-General of South Australia has intervened in these proceedings pursuant to s 78A of the Judiciary Act. The applicant and the Attorney-General oppose the referral of the question of law to the Court of Appeal.
Statutory Framework of the Confiscation Act
The long title to the Confiscation Act assists in its construction and ascertaining its objectives.[3] The long title is “An Act to provide for the confiscation of proceeds and instruments of crime; to provide for the confiscation of property of certain drug offenders as an additional punishment for their offending and for other purposes”. That title suggests that the restraining order is in aid of forfeiture, that is, ensuring that any order for forfeiture that might be made in the future will have utility.
[3] See D.C. Pearce Statutory Interpretation in Australia” (LexisNexis Butterworths, 9th ed., 2019), [4.60].
The statutory framework of the Confiscation Act provides for the making of a restraining order under s 24 preventing the property specified in the order from being disposed of or otherwise dealt with by any person. The Confiscation Act subsequently provides for forfeiture of the property after conviction.
The power to make a restraining order is contained in s 24 of the Confiscation Act which provides:
(1) A court must, on application by the DPP, make an order (a restraining order) that specified property must not be disposed of or otherwise dealt with by any person (except in the manner and circumstances, if any, specified in the order) if satisfied that—
(a) a person has been convicted of, or has been charged with, a serious offence, or it is proposed that the person be charged with a serious offence; or
(b) a person is suspected on reasonable grounds of having committed a serious offence; or
(c) there are reasonable grounds to suspect that the property is the proceeds of, or is an instrument of, a serious offence (whether or not the identity of the person who committed the offence is known); or
(d) there are reasonable grounds to suspect that a person has committed a serious offence and has derived literary proceeds in relation to the offence.
(2) An application for an order under this section must specify the property to which the application relates.
(3) The DPP may submit evidence in support of the application in the form of an affidavit.
(4) Subject to subsections (5) and (5a) and Division 3, the court must specify in the restraining order all property specified in the application for the order.
(5) The court may only specify property in a restraining order made under subsection (1)(a),(b) or (d) if satisfied that there are reasonable grounds to suspect that the property is—
(a) in the case of a restraining order made under subsection (1)(a) or (b)—
(i) property of the suspect; or
(ii) property of another person (whether or not that other person's identity is known) that—
(A) is subject to the effective control of the suspect; or
(B) is proceeds of, or is an instrument of, the serious offence; or
(b) in the case of a restraining order made under subsection (1)(d)—
(i) property of the suspect; or
(ii) property of another person (whether or not that other person's identity is known) that is subject to the effective control of the suspect.
(5a) The court may not specify property in a restraining order that is protected property of a person unless subsection (1)(c) applies to the property.
(6) The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
(7) The court may specify that a restraining order covers property that is acquired by the suspect after the court makes the order.
(8) A restraining order may be made subject to conditions.
Under s 46(2) of the Confiscation Act, a restraining order relating to property, ceases to be in force, if not more than 28 days after the order was made, the suspect has not been convicted of, or charged with, a serious offence.
Procedural Background
On 22 July 2024, the applicant filed an originating application in this Court in which it sought an order pursuant to s 24(1)(a) of the Confiscation Act restraining the respondent from dealing with specified property. At that time, as the affidavits filed in support of the application made clear, the restraining order was sought on the basis that it was proposed to charge the respondent with trafficking in large commercial quantity of a controlled drug contrary to s 32 (1) of the Controlled Substances Act 1984 (SA).
That application came on for hearing on 5 August 2024. The respondent was represented by counsel. Counsel for the applicant informed the Court that he had received information that the respondent has been charged with the offence of trafficking in a commercial quantity of a controlled drug. There was no evidence of that fact. Counsel for the respondent advised the Court that they did not consent to the orders but did not wish to make any submissions. Counsel further advised that they had not received any instructions that charges had been laid. On 5 August 2024, the Court granted the restraining order based on the circumstance that it was proposed to charge the respondent with a serious offence. In fact, the applicant filed an affidavit affirmed on 8 August 2024, three days after the hearing, confirming that the respondent had been charged on 19 July 2024 with the offence of trafficking in a large commercial quantity of a controlled drug.
On 6 August 2024, the respondent filed an interlocutory application in which he sought to refer to the Court of Appeal the question of law identified at the commencement of these reasons. There arose, during the course of argument on that application, an issue as to whether that was the correct procedure, if the restraining order that was made on 5 August 2024 was properly characterised as an interlocutory order. To avoid any doubt about this issue, the respondent filed a further interlocutory application on 27 March 2025 in which he sought an order that the orders made on 5 August 2024 be set aside on the basis that s 24(1) was invalid insofar as it related to persons proposed to be charged.
Is an application for a restraining order an interlocutory application?
The parties all made submissions in which they agreed that the restraining order is an interlocutory order. As that is an agreed position, it is not necessary to undertake a detailed analysis of the issue other than to record the reasons (as advanced by the parties) as to why the Court can be satisfied that the restraining order is interlocutory in nature. Those reasons are:
(1)The question of whether an order is final or interlocutory is the legal effect of the order.[4] The relevant question is whether the decision finally determines the rights of the parties.[5] A restraining order is not determinative of a parties’ right to or ability to retain property and does not have the effect of finally disposing of property;[6]
(2)A restraining order can be revoked or amended pursuant to ss 34, 38, 43, 44 and 46 of the ConfiscationAct;
(3)A restraining order is, under the ConfiscationAct, in substance, ancillary to forfeiture orders. The restraining order lapses if a person is acquitted or the charges withdrawn;[7]
(4)In Ruzehaji v Commissioner of the Australian Federal Police,[8] Gray J held that a restraining order under the Commonwealth Proceeds of Crime Act (Cth) 2002 Act was interlocutory in nature because it did not finally dispose of the rights of the parties. Other courts have reached the decision in relation to the Proceeds of Crime Act;[9]
(5)In International Finance Trust Co Ltd v NSW Crime Commission,[10] the High Court referred to restraining orders made under the equivalent New South Wales legislation as being interlocutory in nature;
(6)Appeals from the granting of a restraining order have been heard by single judges of the Supreme Court of South Australia and have been held to be interlocutory and not final.[11]
[4] Barrett v The King [2024] WASCA 169, [14].
[5] Licul v Corney (1976) 180 CLR 213, 229-220.
[6] Zheng v Commissioner of Australian Federal Police (2019) 136 SASR 303, [191].
[7] Section 46(1) of the Act.
[8] (2015) 124 SASR 355; [2015] SASCFC 182.
[9] See The Commissioner for Australian Federal Police v Tjongosutiono [2018] NSWSC 48; Mai v Commissioner of the Australian Federal Police [2002] VSCA 38, [9]; Saad v Commissioner for Australian Federal Police [2021] VSCA 246.
[10] (2009) 240 CLR 319, [[114]-[115], 121].
[11] Eg Director of Public Prosecutions (SA) v Scalzi [2024] SASC 2, [67] per Hughes J; Hu v Director of Public Prosecutions (2017) 127 SASR 460, [6] per Bampton J.
Reservation of a question of law to the Court of Appeal-legal principles
Pursuant to s 44(2) of the District Court Act 1991, a Judge may reserve any question of law arising in an action for determination by the Court of Appeal. The UCR, other than confirming in UCR 212.3(b) that the appellate jurisdiction of the Court of Appeal includes cases where the appellate proceeding is a case stated, do not provide any further guidance as to the circumstances in which the Court should exercise its discretion to state a case to the Court of Appeal. Under UCR 211.1, a case stated, includes a question reserved for the consideration of the Court of Appeal.
Section 44 provides the Court with a wide discretion to determine whether the matter should be referred to the Court of Appeal.[12] There may be a number of circumstances which may be relevant to the question of referral, although those circumstances will vary from case to case.[13] It is not the case that any one consideration will be decisive. Some earlier cases in South Australia, to which counsel made reference, appear to place great emphasis on certain factors, which is not consistent with the application of an unfettered discretion.
[12] Freehills, in the matter of New Tel Limited (in liq) ACN 009 068 955 (No 2)(Freehills) (2008) 250 ALR 246, [10]; [2008] FCA 1006.
[13] Collins v Black [1995] 1 VR 409, 410; [1995] VSC 7.
In McKenzie v Ordish,[14] Angus Parsons J considered the issue of stating a question of law to the Full Court. He held that the question should only be stated if the matter was of gravity or involved some matter of public interest or importance.[15] A case should not be stated if the matter involved an issue of fact. In refusing the application for a case stated, Angus Parsons J concluded:[16]
In the case before me the matters which were in issue were, of course, of great importance to the parties, but no question of general importance or of general interest, still less of gravity, or an important question of law is involved, nor do I think the matter really one of difficulty, and under all these circumstances, the application to state a special case will be refused.
[14] [1922] SASR 21.
[15] Ibid, 33.
[16] Ibid, 34.
The Full Court in R v The Industrial Court (SA) and others, exp Hunkin (exp Hunkin)[17] took a wider view of the circumstances in which a case might be stated. The Court said that it did not subscribe to everything that was said by Angus Parsons J in McKenzie v Ordish,[18] and that although the matter was discretionary, if the question was of general importance and the application was made in good faith, there was no reason why the Court should not act on the request.[19] The circumstances in which the Court was asked to state the case to the Full Court in exp Hunkin were that the defendant had been convicted and had appealed to the Industrial Court. There was no appeal from the Industrial Court and its decision was final except that the Court had power to state a case for the opinion of the Supreme Court (and to issue a writ for certiorari for excess or want of jurisdiction).
[17] [1934] SASR 208.
[18] [1922] SASR 21.
[19] [1934] SASR 208, 210.
Both these decisions do not reflect the nature of the broad discretion given by s 44 of the District Court Act and seem to give undue weight to the identified circumstances. These decisions were made almost a century ago when the challenges facing this Court and the Court of Appeal were much different. Hughes J in Varnhagen & Ors v State of South Australia and Anor (Varnhagen)[20] stated, in accordance with the statements of principles set out in cases such as Barton v Westpac Banking Corporation (Barton)[21] and Freehills, in the matter of New Tel Limited (in liq) ACN 009 068 955 (No 2)(Freehills) that:[22]
[20] [2022] SASC 108.
[21] (1983) 50 ALR 397, 415.
[22] (2008) 250 ALR 246, 10]; [2008] FCA 1006.
The decision to reserve a question of law is subject to a broad discretion reflective of the dependence of the decision upon the circumstances of the proceedings. It is a decision which draws upon the trial Judge's own consideration as to whether reserving a question of law is appropriate, considering issues beyond the matters in relation to which the parties have direct knowledge. These include case-flow management principles, the arrangements within the Court, and the trial Judge's own reflections as to whether the issue requires adjudication by the Court of Appeal.
A trial judge in a superior State court is required to identify and apply legal principles throughout the course of any proceeding. The issues confronting a trial judge may include statutory interpretation of new legislative provisions. They may include questions concerning the operation of the Commonwealth Constitution on State laws. The presence of these issues alone does not enliven any obligation on the part of a trial judge to accede to, or initiate, any reservation of a question of law to the Court of Appeal. Indeed, the framework within which a single judge determines the issues of fact and law and may be corrected on appeal is one that should not be lightly departed from?
It is with that starting point squarely in mind that consideration of whether to reserve a question of law may be commenced. Whilst the discretion to reserve a question of law is broad, factors that have been identified as relevant were described by McKerracher J in Freehills, Re New Tel Ltd (in lig) (No 2) as:
... whether the Judge considers that it is convenient to reserve the question, eg having regard to the point at which it arises, the strength of the point, because it raises unusual difficulties or because there are conflicting decisions; whether there are any similar authorities on the question of law; whether they have been determined with the benefit of full argument; the nature of the point of law to be decided, ie whether confined to a specific point of statutory interpretation; costs and delay; and administration of the court.
Whilst the significance of many of the factors is not fixed, the factor described above that creates a stronger case than others in favour a referral arises where the circumstances of the case bring it within the consideration of conflicting binding or persuasive authorities. That does not arise here.
Accordingly, the decision to reserve a question of law to the Court of Appeal, involves a greater contribution to be made by the trial Judge than arises with respect to some other applications, the determination of which is to be made with greater deference to the interests of the parties to the litigation.
Therefore, the starting point is that the Court has a broad discretion whether or not to refer a matter. Authorities, in South Australia and interstate, have identified various considerations that the Court might take into account when deciding whether or not to refer a matter to the Court of Appeal. These considerations include:
(1)Whether the Court considers that it is convenient to reserve the question having regard to the point at which it arises, the strength of the point, because it raises unusual difficulties or because there are conflicting decisions?[23]
(2)Whether the matter raises a point of public or general importance?[24]
(3)Whether there are any similar authorities on the question of law;[25]
(4)Whether those authorities have been determined with the benefit of full argument;[26]
(5)The nature of the point of law to be decided, i.e. whether it is confined to a specific point of statutory interpretation;[27]
(6)Costs and delay.[28] In this regard it will be relevant whether the parties assert that any decision by a single judge will be but a staging point on route to the Full Court of if they say that the point requires urgent determination.[29]
(7)The administration of the Court.[30] The framework of the Court is that issues of fact and law are normally decided at first instance and are subject to a right of appeal. The appeal court gets the benefit of the analysis and articulation of matter by the primary judge.[31] In Barton, Sheppard J held that considerations of the orderly administration of the court and the efficient application of resources meant that this framework should not be lightly departed from. Sheppard J noted that the primary Court is often called upon to resolve questions of law as a routine judicial task.[32]
[23] Barton v Westpac Banking Corporation (1983) 50 ALR 397, 415; Freehills (2008) 250 ALR 246, [10]; [2008] FCA 1006.
[24] Collins v Black [1995] 1 VR 409, 410; [1995] VSC 7; McKenzie v Ordish [1922] SASR 21, 33; R v The Industrial Court and others, exp Hunkin [1934] SASR 208.
[25] Freehills 250 ALR 246, [10]; [2008] FCA 1006.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Collins v Black [1995] 1 VR 409, 410; [1995] VSC 7
[30] Ibid.
[31] Ibid per JD Phillips and Hansen JJ.
[32] (1993) 50 ALR 397, 415.
Determination of application
The Court has a wide and unfettered discretion in determining whether it is appropriate to refer the identified question of law to the Court of Appeal. As preliminary matters, the question that has been identified is clearly a pure question of law and which has been properly articulated. The respondent submitted that there were three matters that were relevant to the exercise of the discretion in this case. They were that:
(1)The question was of general importance;
(2)The question was a substantive question;
(3)The balance of convenience favoured referral.
The above approach represents a combination of the various factors that have been identified as relevant to the exercise of the Court’s discretion. I will proceed by reference to the approach of the respondent, although treating the categories of the respondent as broad categories.
Addressing the first matter, the question of law identified is clearly of general importance. It involves the application of s 24(1) of the Confiscation Act and whether that provision, insofar as it applies to persons that are proposed to be charged with a serious offence under the Act, is incompatible with the principle identified in Kable. The answer to this question of law will therefore apply to other cases where a restraining order is made against persons who are in the same position as this respondent-i.e. persons who are proposed to be charged with a criminal offence. As counsel for the applicant conceded, this provision is widely used by the applicant. That concession accords with the experience of the Court. The applicant frequently invokes the circumstance that a person is proposed to be charged with a serious offence to satisfy the Court that there are proper grounds to make a restraining order.
I am satisfied therefore that the matter is of general importance, both because its determination will apply to other cases and because it raises a constitutional question concerning the exercise of judicial power and the interference with the constitutional integrity of the Court. The general importance of the matter is therefore a factor that favours the referral of the question to the Court of Appeal. However, it is not determinative in itself. As Sheppard J held in Barton, a primary judge routinely decides questions of law. His Honour decided that it was not appropriate to refer the matter to the Full Court.[33] That was a case involving the general administration of the Income Tax Assessment Act and therefore had a general importance beyond its importance to the parties. Brooking J in Collins v Black[34] emphasised that the presence of a factor such as the general importance of the matter should not be regarded as a passport to the Full Court and that there were many cases where a difficult and important question might be determined by a single judge.
[33] (1983) 50 ALR 397, 415.
[34] [1995] 1 VR 372, 410; [1995] VSC 7; Approved in Aquagenics Pty Ltd v Break O’Day Council (2009) 18 Tas R 364, [15]; [2009] TASSC 15.
The second matter raised by the respondent was that the identified question raised a real and substantive question of law. I accept that there is a real and substantive question of law. This Court has determined in various decisions that s 24(1) of the Confiscation Act, insofar as it applied to persons who had been charged, did not operate so as to undermine the institutional integrity of the court and is not incompatible with its role as a repository of federal jurisdiction.[35] Those decisions have not been the subject of appeal. This is not a case where there are conflicting (or any) Full Court decisions. The respondent submits that these decisions are distinguishable insofar as they apply to an order made under s 24(1)(a) in respect of a person who is proposed to be charged. There have not been decisions involving this aspect of s 24(1)(a). Where s 24(1)(a) is used, the respondent submits that the Court is required to act on a view formed by the executive and is not required to conduct an assessment of any objective fact.
[35] Director of Public Prosecutions for the State of South Australia v Mrishaj [2024] SADC 101.
While there is a real and substantive question of law to be determined, I do not make any finding as to the merits of the question. The Attorney submitted that the proposed question of law is not of sufficient merit to warrant referral to the Court of Appeal as distinct from being heard by way of the ordinary appeal process. It is not appropriate for me to consider the merits of the proposed referral other than to say I accept that it raises a real and substantive question but also there are good arguments which might be advanced to contend that the point will not succeed. There is nothing in the existing authorities that provides specific support to the respondent’s argument that s 24(1)(a) is not valid insofar as it applies to persons who are proposed to be charged.
The fact that there is a real and substantive question of law to be determined is a relevant factor but not of great weight in the present case. If there was no real question of law to be determined, there would be a very powerful reason for not referring the matter to the Court of Appeal. The finding that there is a real question of law to be determined means that the Court should consider this fact, along with other circumstances that may exist and be relevant, to determine whether it is appropriate to refer the matter to the Court of Appeal.
As to the balance of convenience, the respondent submitted that the referral of the matter to the Court of Appeal would result in saving of costs and time, both to the Court and to the parties and is a matter of convenience. The respondent submitted that the question of referral was relevant to the mechanism by which the matter is heard by the Court of Appeal, that is whether by an appeal from this Court or by way of referral of a question of law. In support of that contention, the respondent submitted that the matter would inevitably be resolved by the Court of Appeal, in that the applicant would also likely appeal from an adverse decision if the matter was first determined by this Court.
I do not consider that it is inevitable that the applicant would appeal from an adverse determination in this Court. The application for a restraining order is interlocutory in nature. The application by the respondent to set aside the restraining order is also an interlocutory application. If the Court determines that s 24(1(a) is invalid, insofar as it applies to person proposed to be charged, there would be nothing to prevent the applicant from lodging a fresh application on the basis that the applicant has now been charged (in fact, he had been charged on the date that the restraining order was made). The referral therefore is not a case which will finally decide any question, even the interlocutory question of whether a restraining order should be made. The application for the forfeiture order will proceed and can be made even without a valid restraining order. These are matters that weigh against a referral.
The applicant, relying upon the statement of Hughes J in Varnhagen, submitted that primary judges are frequently required to adjudicate on questions of law and the matter should then be determined in the normal way and the Court should not lightly depart from that process. The applicant submitted that the District Court was able to adjudicate this relatively straightforward question of statutory interpretation in light of the statutory framework that exists in the State. I accept that the application does not raise any particularly difficult question of statutory construction.
The respondent submitted that the proposition that the Court should not lightly depart form the ordinary process is not of particular relevance as there was no support in the authorities that this principle applied to the District Court as opposed to as single judge of a superior court. I do not accept that the proposition laid down in Varnhagen (of not lightly departing from the general framework where a judge determines issues of fact and law which may be corrected on appeal) is limited in its application to cases involving an appeal from a single judge of a superior court. There is no logical reason why the proposition should be so constrained. The decisions and reasoning in Varnhagen[36] and Barton do not suggest such a limitation. The parties, before deciding how they wish to proceed, and the Court then have the benefit of the judgment of this Court.
[36] Varnhagen (above), [7].
The Attorney submitted that the referral, rather than appeal, would cause a practical injustice to the applicant and the Attorney in that it would be open, on an appeal, for those parties to file a Notice of Alternate Contention, namely that there existed an alternate basis for the order, being that the respondent had in fact been charged. This Notice of Contention cannot be raised if the matter is dealt with by way of referral of a question of law. Further, as the restraining order is properly characterised as an interlocutory application, an appeal against the making of such an order is properly made to a single justice of the Supreme Court and is subject to leave. Consideration of the question of leave would permit the single justice of the Supreme Court, with the benefit of a judgment from this Court, following full submissions from all parties, to form a view as to whether there was sufficient merit in the appeal to justify the granting of leave.
The Attorney contended that these matters are relevant discretionary matters. I consider that these matters are not separate matters that might provide a reason why the referral should be refused but are relevant as part of the consideration why the ordinary statutory process should be adopted.
Taking into account the matters that have been discussed under the umbrella of “balance of convenience”, I consider that the balance of convenience favours the refusal of the application. In forming this view, I consider that the matters are of significant weight are: (a) the referral will not finally determine any issue and that, if it was found that s 24(1)(a) (insofar as it applied to persons who were proposed to be charged) was incompatible with the Kable principle and the restraining order was therefore invalid, the applicant could made a further application for a restraining order relying on the fact that the respondent had in fact been charged; and (b) the applicant and the Attorney-General are disadvantaged by the matter proceeding by way of referral and not by the normal process of an appeal in that an appeal would be made to a single judge of the Supreme Court and would require leave and further that it would be open to the applicant and the Attorney to file a Notice of Alternate Contention.
Considering each of the matters that have been referred to in these reasons individually and in the context of each other and in the circumstances in which the application has been made and the stage of the proceedings, I have formed the view that the application of the respondent to refer the question of law to the Court of Appeal should be refused.
Conclusion
For the reasons which have been identified, the application of the respondent to refer the matter to the Court of Appeal is refused.
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