Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd
[2012] VSCA 300
•14 December 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0024
DIRECTOR OF PUBLIC PROSECUTIONS Appellant v PATRICK STEVEDORES HOLDINGS PTY LTD
(ACN 060 462 919)Respondent S APCI 2012 0025 VICTORIAN WORKCOVER AUTHORITY Appellant v PATRICK STEVEDORES HOLDINGS PTY LTD
(ACN 060 462 919)Respondent ---
JUDGES MAXWELL P, WEINBERG JA and FERGUSON AJA WHERE HELD MELBOURNE DATE OF HEARING 7 November 2012 DATE OF JUDGMENT 14 December 2012 MEDIUM NEUTRAL CITATION [2012] VSCA 300 JUDGMENT APPEALED FROM Patrick Stevedores Holdings Pty Ltd v DPP & Anor [2012] VSC 31 (Robson J) ---
INDUSTRIAL SAFETY, HEALTH AND WELFARE — Prosecutions under Occupational Health and Safety Act 2004 (‘OHS Act’) capable of being brought within two years of commission of offence or at any time with written authorisation of Director of Public Prosecutions (‘Director’) — Whether two year limitation period applicable to prosecutions by Director — Whether putative defendant acquires any right or immunity from prosecution following expiry of two year period — OHS Act s 132; Nicol v Attorney-General (Vic) [1982] VR 353; Oates v Williams (1998) 84 FCR 348, considered.
ADMINISTRATIVE LAW — Procedural fairness — Director’s function under OHS Act — Matters to be taken into account by Director in authorising proceedings outside limitation period — Whether Director to take into account existence of reasonable prospects of conviction — Whether decision therefore prosecutorial in nature —Director’s decision involves exercise of prosecutorial discretion and not amenable to judicial review — Putative defendant not entitled to hearing in respect of decision to authorise prosecution — Undesirability of fragmentation of prosecutorial process.
PRACTICE AND PROCEDURE — Precedent — Conflicting decisions of intermediate appellate courts — Whether Court of Appeal obliged to follow ‘seriously considered dicta’ of other intermediate appellate courts — Meaning of expression ‘plainly wrong’ discussed — Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Gett v Tabet (2009) 254 ALR 504, considered.
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APPEARANCES: Counsel Solicitors S APCI 2012 0024
For the Appellant Mr O P Holdenson QC with
Mr C P YoungMr C Hyland, Solicitor for Public Prosecutions For the Respondent Dr D Neal SC with
Mr R TaylorFreehills Solicitors S APCI 2012 0025
For the Appellant Mr P Hanks QC with
Mr C W Beale SCVictorian WorkCover Authority For the Respondent Dr D J Neal SC with
Mr R TaylorFreehills Solicitors MAXWELL P
WEINBERG JA
FERGUSON AJA:Introduction and summary
1 On 10 March 2011, Inspector David Fletcher, an officer of the Victorian Workcover Authority (the ‘Authority’), brought charges against Patrick Stevedores Holdings Pty Ltd (‘Patrick Stevedores’). The Charge-Sheet and Summons identified seven offences under s 76 of the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act‘). It was alleged that Patrick Stevedores had threatened to dismiss one of its employees because he was a health and safety representative, and had threatened to dismiss both that employee, and others, because they had raised issues or concerns about health or safety. Each of these offences was indictable, but capable of being tried summarily.[1] The offences were all alleged to have been committed on 11 and 12 March 2009, almost two years to the day before the charges were brought.
[1]Criminal Procedure Act 2009 (Vic) s 28(1), sch 2.
2 Under s 132 of the OHS Act, proceedings may be brought (a) within two years after the offence is committed or the Authority becomes aware the offence was committed or (b) at any time with the written authorisation of the Director of Public Prosecutions (the ‘Director’).
3 At some point after the original charges were laid, it was discovered by the Authority that there was a problem with the authorisation to bring proceedings under the OHS Act that had been signed in respect of this prosecution. It transpired that Inspector Fletcher, although an Inspector appointed under the OHS Act, had not been authorised in accordance with the requirements of the OHS Act to lay the relevant charges. In fact, the person authorised to bring these particular proceedings was Inspector Ross Clayton.
4 On 26 October 2011, the day before the matter was scheduled to be heard at a committal mention, an email was sent by the Authority to Freehills, the solicitors acting for Patrick Stevedores. The email informed them that the Authority had applied to the Director to authorise the laying of fresh charges (which, it was stated, would be identical to those previously filed). Freehills were told that it was expected that the Director would make a decision as to whether to authorise the laying of those charges within a matter of days. The Authority suggested that the committal mention scheduled for the following day be adjourned for a period of about two weeks to allow time for the Director to determine whether to grant the relevant authorisation, and, if granted, for the Authority to issue the fresh charges.
5 In response, Freehills wrote to the Authority asking for all correspondence in relation to this matter, and a copy of the existing written authorisation. They indicated that they would oppose an adjournment of the committal mention hearing, and would seek to have the charges struck out on the basis that they had not been properly commenced within time.
6 At about the same time, Freehills wrote to the Director requesting a copy of the Authority’s application for authorisation, together with any supporting documentation. They also sought an opportunity to make submissions in response to the Authority’s application.
7 At 5.53pm that evening, the Authority wrote to Freehills, attaching a copy of the existing, defective, authorisation.
8 On 4 November 2011, the Director replied to the various requests that had been made by Freehills in their letter of 26 October 2011. He rejected those requests, stating: ‘Consistent with the approach taken in Stephen Zmak (VWA) and TCB Trans Pty Ltd and Buildcorp Commercial Pty Ltd, I decline to provide a copy of the materials sought.’ He did not respond, in terms, to the request to be heard in relation to the matter.
9 On 10 November 2011, the Authority conceded in the Magistrates’ Court that the charges that had been laid on 10 March 2011 had not been authorised in accordance with s 130 of the OHS Act. Accordingly, those charges were struck out.
10 On the same day, Freehills wrote to the Director noting his decision not to provide their client with the materials they had sought in their letter of 26 October 2011. They also noted that the Director had not responded to their request to be heard and to make submissions in respect of the Authority’s application. They said that they understood that this meant that the Director did not intend to provide their client with that opportunity. They said that they further assumed that the Director did not intend to provide them with reasons for any decision that he might make in relation to the application.
11 Freehills expressed concern at the Director’s decision, asserting that the authorisation process was proceeding in a manner that denied their client natural justice. They foreshadowed bringing an application to the Supreme Court seeking a declaration that the Director was acting in breach of the rules of procedural fairness. They sought an undertaking from the Director that he would take no further steps in relation to the authorisation process until the resolution of their application for relief.
12 Freehills wrote, on the same day, to the Authority in similar terms.
13 Later that day, the Director wrote to Freehills confirming that his position remained unchanged from that set out in his letter dated 4 November 2011. He said that a decision had not yet been made regarding the application for authorisation, but that the matter was being considered by a Senior Crown Prosecutor, and that a decision would be made in due course.
14 Consequent upon that letter, Freehills brought proceedings in the Practice Court on the following day.
15 Ultimately, the matter came before a judge of the Trial Division.[2]
[2]Patrick Stevedores Holdings Pty Ltd v DPP [2012] VSC 31.
16 The judge determined that once the two year period provided for by s 132 had expired, Patrick Stevedores had an accrued right or immunity from prosecution. If the Director was minded to deprive Patrick Stevedores of that right or immunity, he was obliged to afford it the right to be heard in relation to that matter. It should be noted that his Honour, in his reasons for decision, declined to set out the means by which procedural fairness should be accorded, leaving that for further consideration at a later time.
17 Both the Director and the Authority have appealed. They contend that the obligations of procedural fairness do not attach to the making of an authorisation by the Director under s 132(b) because no right or interest of Patrick Stevedores is affected by the making of the authorisation. In support of that conclusion, they say that the matters that the Director must take into account when making an authorisation include the strength of the prosecution case, and the public interest, these being matters central to the exercise of prosecutorial discretion. They say that the Director’s decision on a question of this kind is therefore not susceptible to judicial review.
18 In our opinion, the appeals should be allowed. In summary, this is because we have concluded that the Director (as opposed to the Authority) is empowered under s 159(2) of the Criminal Procedure Act 2009 to institute a prosecution on indictment for an offence under the OHS Act at any time, and that the two year period specified in s 132 of that Act has no application to prosecutions brought directly by the Director. In those circumstances, no immunity from prosecution of any relevant kind has arisen. It follows that no right or interest of Patrick Stevedores would be affected by any authorisation by the Director under s 132. As such, the Director is not under any obligation to afford procedural fairness to Patrick Stevedores in relation to the request for such authorisation. Our detailed reasons are set out below.
The statutory provisions
19 Various provisions in the OHS Act and the Criminal Procedure Act 2009 are relevant to the issues in this appeal. The starting point is s 159(1) of the Criminal Procedure Act2009 which provides that the Director may file an indictment. This accords with the Director’s functions under s 22 of the Public Prosecutions Act 1994 to ’institute, prepare and conduct on behalf of the Crown, proceedings… in respect of any indictable offence‘.
20 Section 159(2) of the Criminal Procedure Act2009 provides:
(2)An indictment may be filed at any time, except where otherwise provided by or under this or any other Act.
21 Section 7(2) of the Criminal Procedure Act2009 (which deals with proceedings brought in the Magistrates’ Court for indictable offences triable summarily) is to similar effect.[3]
[3]The section provides:
(2)A proceeding for an indictable offence-
(a)may be commenced at any time, except where otherwise provided by or under this or any other Act….
22 Section 130(1) of the OHS Act provides that proceedings for an offence against that Act may only be brought by the Authority or an authorised inspector.[4] Nevertheless, s 130(5) provides:
Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an indictable offence against this Act.
[4]The inspector must be authorised in writing by the Authority: OHS Act s 130(1)(b).
23 Section 131 of the OHS Act sets out the procedure that must be followed if a prosecution has not been brought within six months of an alleged offence under that Act, and a person requests the Authority to bring a prosecution. If the Authority decides not to prosecute, it must refer the matter to the Director.[5] The Director is then charged with the task of considering the matter and advising the Authority whether he considers that a prosecution should be brought.[6]
[5]OHS Act s 131(3).
[6]OHS Act s 131(4). If the Authority declines to follow advice from the Director to bring proceedings, it must give written reasons for its decision: OHS Act s 131(5).
24 As previously noted, s 132 of the OHS Act — which is headed ’Limitation period for prosecutions‘ — reads as follows:
Proceedings for an indictable offence against this Act may be brought-
(a)within 2 years after the offence is committed or the Authority becomes aware the offence was committed; or
(b)at any time with the written authorisation of the Director of Public Prosecutions.
Case law concerning procedural fairness
25 The starting point must be Annetts v McCann,[7] where Mason CJ, Deane and McHugh JJ stated the general principles that govern the circumstances in which a public official is required to afford a person procedural fairness before making a decision. Their Honours said:
It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.[8]
[7](1990) 170 CLR 596.
[8]Ibid 598. See also, Kioa v West (1985) 159 CLR 550; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252. As to legitimate expectations, see [50] below.
26 However, it must be understood that this general principle has long been held to be subject to qualification. It is well-established that certain, if not all, prosecutorial decisions are insusceptible of review. Decisions falling broadly within that category do not attract the rules of procedural fairness.[9]
[9]Barton v The Queen (1980) 147 CLR 75; Jago v The District Court (NSW) (1989) 168 CLR 23; DPP (SA) v B (1998) 194 CLR 566.
27 To take but one example, in Barton v The Queen[10] the High Court had to consider whether the decision of the Attorney-General to present an ex officio information was susceptible to judicial review. Gibbs ACJ and Mason J held that it was not because:
(a)the function that the Attorney performed in commencing prosecutions had previously been performed by the grand jury whose decisions were not subject to judicial review, except in very limited circumstances;
(b)it is undesirable for the court to become too closely involved in the question of whether a prosecution should be brought given that the court’s ultimate function is to determine the guilt or innocence of the accused;
(c)in exercising its power to prevent an abuse of process, the court will consider (albeit rarely) whether a prosecution should be permitted to continue; and
(d)the court has powers to ensure that an alleged offender is dealt with fairly and, for this reason, a separate safeguard by way of judicial review of the prosecutorial decision is not necessary.[11]
[10](1980) 147 CLR 75.
[11]Ibid 94-5.
28 Since Barton, most focus has been on the second matter relied upon by their Honours. So, in Jago v The District Court (NSW),[12] Brennan J observed that:
Barton reaffirms the clear division between the executive power to present an indictment and the judicial power to hear and determine founded on the indictment. That division is of great constitutional importance. It ensures that the function of bringing alleged offenders to justice is reposed entirely in the hands of the executive branch of government who must answer politically for the decisions which they make — not only decisions to prosecute particular cases but decisions relating to the commitment of resources to the detection, investigation and prosecution of crime generally. These are decisions which courts are ill-equipped to make and, so far as they relate to the commitment of resources, powerless to enforce. The division of powers in the administration of the criminal law between the executive and the judicial branches of government also ensures that the courts do not become concerned by matters extraneous to the fair determination of the issues arising on the indictment and are thus left free to hear and determine charges of criminal offences impartially.[13]
[12](1989) 168 CLR 23.
[13] Ibid 39.
29 Later, in Maxwell v The Queen,[14] Gaudron and Gummow JJ explained:
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.[15]
[14](1996) 184 CLR 501 (‘Maxwell’).
[15]Ibid 534.
30 As was noted in Barton, once a prosecution has been commenced, the court is able to control the proceedings to ensure that there is no abuse of process. In certain circumstances, delay in bringing a prosecution may justify a stay of the proceeding.[16] In considering whether a prosecution ought to be stayed for undue delay, the factors that the court will take into account ‘generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused.’[17]
[16]Jago v The District Court (NSW) (1989) 168 CLR 23.
[17]Ibid 33 (Mason CJ).
31 Following Barton, a number of cases have considered the position where the consent of a Minister or other official is required before a prosecution may be instituted.
32 Commissioner of Police v Reid[18] concerned a prosecution for perjury. Under the relevant provisions of the Crimes Act 1900 (NSW), leave of a magistrate was required to bring such proceedings. That leave having been granted, the accused sought to quash the decision on the basis that he had not been notified of, nor heard in relation to, the application. Meagher JA (with whom Clarke JA agreed, Priestley JA dissenting) noted that a decision to prosecute does not require procedural fairness to be afforded to the alleged offender. Nor, in his Honour’s view, did an anterior step such as the granting of leave. Rather, procedural fairness had to be afforded only where some step is taken to injure a person’s right or interest. His Honour observed that ‘the merely ministerial step of obtaining leave, before any decision to prosecute is taken, of itself does nothing, and certainly does not imperil any relevant right or interest.’[19]
[18](1989) 16 NSWLR 453.
[19]Ibid 461.
33 A case perhaps more closely in point is Nicol v Attorney-General (Vic),[20] which concerned the operation of s 381(2) of the Companies Act 1961. That section read, at the time, as follows:
Notwithstanding anything in any Act proceedings for any offence against this Act may be brought within the period of three years after the commission of the alleged offence or, with the consent of the Minister, at any later time.
[20][1982] VR 353 (‘Nicol’).
34 The issue in Nicol was whether a company director was entitled to be heard when the relevant Minister was considering whether to consent to proceedings being brought against him or her more than three years after the commission of the alleged offence.
35 It seems to have been accepted by the parties, and by the Full Court, that the section did not give any right to, or confer any immunity upon, a person once the three year period had elapsed. However, it was submitted that although there was no legal right of that kind, the person had a ‘legitimate expectation’ that, in those circumstances, no prosecution would be brought against him. This, it was submitted, gave rise to a right to be heard before consent was given.
36 Murphy J (with whom Starke and Marks JJ agreed) referred to a line of English authority in which the phrase ‘legitimate expectation’ had been used. His Honour quoted what Megarry V-C had said about that line of authority in McInnes v Onslow Fane,[21] namely ‘that the applicant in those cases has some legitimate expectation from what has already happened that his application will be granted.’
[21][1978] 3 All ER 211, 218.
37 Murphy J continued:
It is made clear in these English cases that the phrase ‘legitimate expectation’ is to be understood in this confined way, namely that from what has gone before the applicant may legitimately expect that his application will not be refused out of hand, will be dealt with fairly and that, if it is contemplated that it may be refused, he will be given the opportunity to be heard after knowing what he has to meet.[22]
[22]Nicol v Attorney-General for Victoria [1982] VR 353, 357.
38 His Honour also considered Salemi v MacKellar (No. 2)[23] and Heatley v Tasmanian Racing and Gaming Commission,[24] at that stage the only two High Court decisions which had considered the meaning of the phrase. He then turned to s 381(2) of the Companies Act 1961. He concluded that the only right that it afforded a putative defendant was the right to object if a prosecution was brought after three years had elapsed without the Minister’s consent. He rejected a submission to the effect that once three years had passed, the alleged offender had a legitimate expectation that no prosecution would be brought. In doing so, his Honour adopted what had been said by Mansfield J in Cody v Joseph Pease (Pty) Ltd[25] to the effect that the giving of consent did not decide any controversy, and did not constitute a binding or authoritative decision determinative of rights and liabilities.
[23](1977) 137 CLR 396.
[24](1977) 137 CLR 487.
[25][1945] St R Qd 81, 91.
39 In State Electricity Commission v Commissioner for Equal Opportunity,[26] Gobbo J distinguished Nicol.In that case, one of the matters that his Honour considered was whether a decision by the Commissioner for Equal Opportunity to extend the time within which a complainant could lodge a complaint against the State Electricity Commission was a decision ‘affecting the rights of any person’ for the purposes of the Administrative Law Act 1978.
[26][1992] 1 VR 79 (‘SEC v Commissioner’).
40 Referring to Nicol, Gobbo J stated:
It was not argued or decided in that case that any legal right was created or made out, but that there was a legitimate expectation that the defendant would not be prosecuted. Dicta in Cody v Joseph Pease Pty Ltd[1945] St R Qd 81, at p. 91, were referred to which spoke of the consent of the Attorney General not in any way determining a right or liability. It was said that the commissioner’s decision here was not finally determinative of any right or liability, and that that would only occur when the board came to resolve the complaint. It is not, however, necessary that the determination be finally determinative of a right. Indeed, the determination need only relate to a question affecting a right.
In my view, the decision in Nicol’s case turned largely on whether there was a legitimate expectation that consent would not be given without a hearing. The court found, at p. 361, that the discretionary power granted by s381(2) of the Companies Act was not examinable and was ‘to be exercised... without supervision limitation or control’. It may also be said that the act of the Attorney General in giving his consent was not a determination of a question at all. It was part of a process of authorisation and decided no controversy. The Attorney General’s role was thus quite different in character to that of the commissioner who is called upon to deal with complaints in accordance with a range of provisions in the Equal Opportunity Act. Moreover, the commissioner may only extend the time ‘if the Commissioner is satisfied that there is good cause for so doing’.[27]
[27]Ibid 83.
41 In Oates v Williams,[28] the Full Federal Court (Foster, von Doussa and Finkelstein JJ) declined to follow Nicol. The case concerned a consent granted under s 1316 of the Corporations Law which, at the time, provided:
Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister’s consent, at any later time.
[28](1998) 84 FCR 348.
42 The Full Federal Court considered whether the Minister was required, before giving the relevant consent, to accord the proposed defendant procedural fairness. It fully recognised that, in the light of current authority, a decision to commence a prosecution was not judicially reviewable. Accordingly, a prosecuting authority was not obliged to accord procedural fairness before commencing such a prosecution.[29]
[29]Ibid 354. Cf Newby v Moodie (1988) 83 ALR 523.
43 The Court then considered the position in relation to cases where consent was required before a prosecution could be brought. It stated:
The requirement that there be a consent to a prosecution is to prevent the institution of vexatious proceedings and it does not impose an obligation on the person giving that consent to determine whether there is a prima facie case to be prosecuted: see for example, Goldsbrough & Co v MacMahon (1887) 8 NSWR 118 a case that was concerned with a consent to institute a prosecution for perjury: see also Berwin v Donohoe (1915) 21 CLR 1 which was concerned with a consent to a prosecution under the Trading with the Enemy Act 1914 (Cth): see also Commissioner of Police v Reid (1989) 16 NSWLR 453.[30]
[30]Oates v Williams (1998) 84 FCR 348, 354.
44 The Full Court accepted that no logical distinction could be drawn between the decision to commence a prosecution, and the decision to consent to the commencement of a prosecution. As the Court noted: ‘if a decision to commence a prosecution does not require the giving of a hearing neither can the making of a similar and anterior decision.’[31]
[31]Ibid.
45 However, the Full Court then went on to consider whether there was something special and different about the nature and effect of a decision to authorise a proceeding to be commenced out of time. In that regard, and in reference to s 1316 of the Corporations Law, it said:
A decision taken under s 1316 has little in common with a decision to commence a prosecution or a decision to consent to the commencement of a prosecution. In the first place the effect of a decision under s 1316 is to take away from an accused the ability to plead an absolute answer to a criminal prosecution. It is a defence that was described as a vested right by Zelling J in Karounos at 70 and as an immunity by Jenkinson J in Bond v Minister for Justice (1992) 72 FCR 505 at 512. But howsoever it is to be described, from the point of view of the accused it is a very important right or immunity. On the other hand, a decision to commence a prosecution or to consent to the commencement of a prosecution does not affect any right of the accused.
Secondly, the matters that fall for consideration when making these decisions are different. In the case of a decision to prosecute the decision-maker must decide whether there is a prima facie case. When a consent to a prosecution is required the decision-maker is only concerned to determine whether the proposed prosecution is frivolous or vexatious but is not otherwise concerned with the merits of the case.
Section 1316 does not set out what the Minister must take into account in determining whether to consent to a prosecution out of time. That does not mean that the Minister has a discretion that is ‘almost without definition’: see for example, Swan Hill Corporation v Bradbury (1937) 56 CLR 746. The scope and purpose of s 1316 does indicate the type of matters that should be considered. What the Minister must decide is whether it is reasonable to allow the prosecution to proceed out of time. This will involve a consideration of two principal issues. The first is the reason the prosecution was not commenced within the five year period. Here it will be necessary for the Minister to consider the conduct of those investigating the alleged offence and whether that investigation was conducted with due diligence. If no sufficient reason for delay is shown then it would not be expected that a consent to prosecute will be given. The second issue is whether the grant of consent will unfairly prejudice the accused. The grant of consent will inevitably cause some hardship to the accused. But his position may be such that it would be unreasonable to require him to face a late prosecution. For example, an accused may be significantly disadvantaged in facing a trial many years after the date upon which the alleged offence was committed. Material witnesses may have died or may not be found. Critical documents may have been lost or destroyed. There may be other circumstances personal to the accused that would make a late prosecution harsh or unjust.
There are other issues that should also be taken into account. The Minister must consider the seriousness of the offence with which the accused is to be charged and whether the public interest would be served by its prosecution. The Minister should also have regard to the harm, if any, that has been caused by the commission of the offence.
However, notwithstanding authority to the contrary (Buffier v Bowen (1988) 32 A Crim R 222) we do not regard it to be the Minister's function when considering whether to grant his consent that the Minister must be satisfied that there is a prima facie case against the accused. The Corporations Law has limited the class of person who may institute a criminal proceeding. A prosecution may be commenced by the ASC, a delegate of the ASC, or a person authorised by the Minister: s 1315. It is one or other of those persons who must decide whether there is a prima facie case. Thus it is not to be supposed when the Minister is considering whether a prosecution should be instituted out of time that the Minister is required to determine whether there is a prima facie case to be prosecuted. When asked to give his consent to a prosecution the Minister is entitled to assume that the person authorised to institute the prosecution has decided or will decide that a prima facie case does exist before the prosecution is instituted. To require the Minister also to consider whether there is a prima facie case will in many cases place an onerous obligation on the Minister. The offences created by the Corporations Law are many and varied. Not uncommonly they will arise out of a complex series of transactions that have occurred over a substantial period of time and an investigation in respect of them may have taken many years to complete. If the Minister was required to review this material to see whether there is a prima facie case there will be further delay in the institution of proceedings to the potential disadvantage of the accused.
Nor do we think that it is necessary for the Minister to consider whether the institution of a prosecution is vexatious. Section 1315 is designed to ensure that frivolous proceedings are not instituted and that the enforcement of the Law is in respectable hands. If the Minister does become aware of circumstances that show that a prosecution is frivolous or vexatious then of course he would not grant his consent under s 1316. However, we do not regard it as part of the Minister's function to go over the prosecution case and form a view about the merits of the case before the power under s 1316 can be exercised.[32]
[32]Ibid 355-6.
46 The Full Court went on to consider whether, in the particular circumstances of that case, the Minister was required to accord the alleged offender a right to be heard before granting his consent. It held that once the five year period expired, a statutory defence arose which was in the nature of a legal right or, more correctly, an immunity, albeit one of a conditional kind.[33] As the immunity would be lost if consent to the prosecution were given after five years, the alleged offender was entitled to be heard unless the legislation made it clear that no such right existed.[34]
[33]Ibid 359.
[34]Ibid.
47 It should be noted that the Full Court went on to say that, in any event, the alleged offender had a ‘legitimate expectation’ that he would be given a hearing if his immunity from prosecution were to be removed. It reasoned that this was so because the decision would put him at risk of a conviction for a serious criminal offence, that being a risk that he did not face before the consent was given.[35]
[35]Ibid.
48 The Full Court recognised that the conclusion that it had reached was inconsistent with part of the reasoning in Nicol. It said:
In the course of arriving at its decision the Full Court said that s 381(2) did not give any right or confer any immunity upon a person after the time had passed within which a prosecution for an offence against the Companies Act may be instituted. No reason was given for that proposition and with respect we disagree with it. In our view s 1316 of the Corporations Law (and s 381(2) of the Companies Act 1961 (NSW) before it) plainly confers an immunity from prosecution albeit a conditional immunity.
The Full Court also held that an accused did not have a legitimate expectation to be heard before a consent to a prosecution was given. The Full Court reached this conclusion after a review of the cases that considered the circumstances in which an ‘expectation’ would arise and concluded that those cases were
‘to be understood in this confined way, namely that from what has gone before the applicant may legitimately expect that his application will not be refused out of hand, will be dealt with fairly, and that, if it is to be contemplated that it may be refused, he will be given an opportunity to be heard after knowing what he has to meet.’
See Nicol at 357. Whether that statement represented a correct summary of the law when Nicol was decided need not be determined. What is clear is that it no longer can be regarded as correct. The circumstances in which a legitimate expectation that a person will be heard can arise are many and varied and need not arise from the past conduct of the decision-maker. So much is clear from the judgment of Mason CJ in Quin (AG (NSW) v Quin(1990) 170 CLR 1) referred to above: see also de Smith, Woolf and Jowell, ‘Judicial Review of Administrative Action’ (5th ed) at paras 8-042 to 8-044; Save the Showgrounds for Sydney Inc. v The Minister for Urban Affairs and Planning(1997) 95 LGERA 33.[36]
49 The Full Court’s decision in Oates v Williams was overturned by the High Court on appeal.[37] This was on the basis that s 1316 of the Corporations Law was facultative, and not restrictive. That meant that the section permitted the bringing of proceedings that would otherwise have been barred by separate legislation. Consequently, the High Court held that the five year period did not apply to the offence in question. No consideration was given to the other issues that were dealt with by the Full Court, or to whether Nicol had been correctly decided.
[37]A-G (Cth) v Oates (1999) 198 CLR 162.
50 So far as the phrase ‘legitimate expectation’ is concerned, both Nicol and Oates v Williams must now be considered having regard to the recent observations of the High Court about the use of that expression. As recently as September of this year, in Plaintiff S10/2011 v Minister for Immigration and Citizenship,[38] Gummow, Hayne, Crennan and Bell JJ stated that:
…the phrase ‘legitimate expectation’ when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded.[39]
[38](2012) 290 ALR 616.
[39]Ibid 633 [65] citing the reasons given in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 20, 27-8 (McHugh and Gummow JJ), 36-8 (Hayne J), 45-8 (Callinan J).
51 Oates v Williams has been followed, in preference to Nicol, in other States. For example, Gelzinis v T & R (Murray Bridge) Pty Ltd[40] concerned the Occupational Health, Safety and Welfare Act 1986 (SA). Under s 58(6a) of that Act, the South Australian Director of Public Prosecutions was permitted to extend a two year time limit for prosecution by written instrument if
satisfied that a prosecution could not reasonably be commenced within the relevant period due to a delay in the onset or manifestation of an injury or disease, a condition or defect of any kind, or any other relevant factor or circumstance.
[40](2009) 103 SASR 194 (‘Gelzinis’).
52 The Acting Director of Public Prosecutions had signed a written instrument for the purpose of extending time because proceedings had been commenced against the wrong company. The extension of time would enable that error to be rectified by commencing fresh proceedings against the correct defendant. Before deciding to extend time, the Acting Director had received submissions from both the intended complainant and the intended defendant.[41]
[41]Ibid 201 [20].
53 Gray J (with whom Sulan and David JJ agreed) made some preliminary observations about time limits. His Honour noted that in civil and summary criminal cases ‘the limitation period represents the legislature’s judgment as to what the public interest requires after taking into account the relevant factors including the prejudice which delay may create.’[42] He observed that the limitation period is the general rule with an extension provision the exception to it.[43] He went on to comment that as ‘the power to extend time arises with respect to vested or substantive rights, equivalent to common law rights, it is clear that the courts will prefer where possible a conservative construction.’[44] In his Honour’s view, the fact that the Acting Director had power to prosecute and to extend time was another reason for a conservative construction to be given to the relevant section.[45]
[42]Ibid 199 [11].
[43]Ibid 200 [13].
[44]Ibid 201-2 [24]. See also Karounas v Flavel (1984) 75 FLR 47 in which Zelling J said at 50:
The distinction made by the authorities is that if the time for prosecution had expired before the instigation of proceedings a vested right or defence is lost where the amending Act is held to be retrospective whereas if the right to prosecute has not expired no right or defence is lost.
[45]Gelzinis (2009) 103 SASR 194, 202 [25].
54 Moreover, Gray J held that the phrase ‘or any other relevant factor or circumstance’ should be read down by reference to the specific matters referred to earlier in the section (manifestation of an injury, disease, condition or defect that developed over some time such that the prosecution could not reasonably be commenced within the time limit).[46] On this construction, the reason for the extension (namely, to enable proceedings to be brought against the correct defendant) was not a ground upon which an extension could be granted. In effect, the purported exercise of the power to extend time was beyond power, and a nullity.[47]
[46]Ibid 204 [30].
[47]Ibid.
55 Gray J went on to consider whether the instrument purportedly extending time needed to identify the particular precondition that had been met in order to warrant the granting of the extension. His Honour referred to Oates v Williams with approval.[48] He concluded that the Acting Director had been required to include in the written instrument the precondition or preconditions that he considered had been satisfied. In reaching that conclusion, he stated that he had given specific attention to ‘the fact that a party to the particular proceeding was making a decision that addressed a substantive right of the other party and that there is no limit in time at which the Director might exercise his power.’[49]
[48]Ibid 205 [36]-[37].
[49] Ibid 205 [38].
56 Still more recently, in QUBE Ports Pty Ltd v Chief Executive Department of Justice,[50] the Queensland Court of Appeal considered whether an application for judicial review of a decision not to accept an enforceable undertaking under the Workplace Health and Safety Act 1995 (Qld) should have been dismissed. The Court concluded that the decision in question differed so significantly from that which a prosecutor would ordinarily confront in determining whether to launch a prosecution as to render it susceptible to judicial review. Gotterson JA (with whom Muir JA and Mullins J agreed) stated:
Whilst the rationale for the rule may reflect several objectives, the immunity from judicial review that it confers need extend only so far as is necessary to achieve them. To extend it beyond the necessary would risk unjustifiable intrusion upon the availability of judicial review of administrative action. Hence, courts have been careful to apply the immunity only in circumstances where the rationale for it justifies its application.[51]
[50][2012] QCA 285 (‘QUBE Ports’).
[51]Ibid [43].
57 Gotterson JA observed that the conservative approach which he favoured reflected the law as stated in Oates v Williams and Gelzinis.[52]
[52]It also reflected his Honour’s view of the approach to be taken in resolving the very question that is before this Court on this appeal. That emerges from the fact that he cited the decision of the judge below, in this case, with approval. Of course, his Honour’s approval of that decision can only be viewed as dicta, so far as the Court of Appeal is concerned.
58 His Honour took it to be clear that ‘the nature of the decision, the range of matters to be considered in making it, and the impact it may have upon the legal rights and obligations of the person or persons affected by it are relevant to categorisation of a decision as one to commence or continue a prosecution, or not.’[53] He formed the view that the decision not to accept an enforceable undertaking had immediate legal consequences for the party who offered it. In his Honour’s opinion, this was to be starkly contrasted with a decision to prosecute which, he accepted, did not relevantly affect any right of an accused. Accordingly, the Court held that the decision not to accept an enforceable undertaking was not immune from judicial review.
[53]Ibid [48].
Summary of the judge’s decision in this case
59 The judge held that for the purposes of ss 7 and 159 of the Criminal Procedure Act, s 132 of the OHS Act ‘otherwise provides’ to impose a limitation period on the initiating of proceedings under the OHS Act. Consequently, his Honour found that the two year limitation period in s 132(a) applies to the prosecution of indictable offences under the OHS Act by the Director, as well as by the Authority or any authorised inspector. He further held that the Director’s power to authorise the bringing of a proceeding under s 132(b) of the OHS Act arose only once the two year limitation period had expired.
60 The judge reviewed a number of the authorities to which we have referred above. His Honour considered that the cases of Oates v Williams,[54] SEC v Commissioner,[55] Gelzinis[56] and Karounos v Flavel[57] were persuasive, and that he proposed to follow them in preference to Nicol. We will consider how his Honour dealt with the topic of precedent later in these reasons.
[54](1998) 84 FCR 348.
[55][1992] 1 VR 79.
[56](2009) 103 SASR 194.
[57](1984) 75 FLR 47.
61 As previously indicated, his Honour concluded that, once the two year period specified in s 132 had expired, there arose in favour of Patrick Stevedores an accrued right or immunity. He reasoned that s 132(b) confers a statutory power on a public official to deprive a person of that accrued right or immunity. He held that the consequence of this was that there was an obligation on the part of the Director to accord procedural fairness to Patrick Stevedores in determining under s 132(b), whether to authorize the institution of proceedings.
62 In reaching this conclusion, the judge rejected an argument by both the Director and the Authority that the Director’s decision under s 132(b) is part of the prosecution process to the extent that it would be protected from judicial review. In approaching the matter in that way, his Honour distinguished between a decision by the Director to bring the proceeding, and a decision merely to authorise the institution of a prosecution beyond the two year period. He formed the view that the two decisions were of a fundamentally different character, and that the matters to be taken into account in relation to each differed significantly.
63 The judge granted declaratory relief and ordered that the Director be restrained from proceeding further with authorisation under s 132(b) unless he first accorded Patrick Stevedores procedural fairness.
Grounds of appeal
64 As noted earlier, both the Director and the Authority have appealed from the judge’s orders. The overarching ground of appeal is that the obligations of procedural fairness do not attach to the making of an authorisation by the Director under s 132(b). The other grounds of appeal go to the three reasons why the Director and the Authority say that this is so. These are that:
·no right or interest of Patrick Stevedores is affected by the making of the authorisation;
·the matters taken into account when making an authorisation include the strength of the prosecution case and that matter is not susceptible to judicial review; and
·the making of the authorisation is part of the prosecution process which is not susceptible to such review.
Is any right or interest of Patrick Stevedores affected by the making of the authorisation?
65 This question principally turns upon the proper construction of s 132 of the OHS Act. Both the Director and the Authority contend that the Director’s powers to institute prosecutions for indictable offences are not in any way constrained by the operation of the section. Put simply, they submit that the section has no application to the Director’s powers to indict, separate from those involving charges brought by the Authority. Accordingly, so it is said, there is no general right or immunity from prosecution upon the expiry of the two year period specified, and s 132(b) does not operate so as to deprive a person of any defence or immunity otherwise available.
66 Conversely, Patrick Stevedores submits that the section applies to all prosecutions irrespective of whether they are brought by the Director, the Authority or an authorised inspector. In support of its contentions, it points to the section heading, its location in the statutory scheme, the broad words used in the first part of s 132(a), the absence in s 132 of any equivalent to s 130(5) (which preserves the right of the Director to prosecute indictable offences), the legislative background which it says supports a two year limitation period, and comparative time limits in other jurisdictions. It submits that for the purposes of ss 7(2)(a) and 159(2) of the Criminal Procedure Act, s 132 of the OHS Act clearly ‘otherwise provides’, so that the limitation period imposed applies to all prosecutions for offences under the OHS Act, regardless of who initiates them.
67 The consequence, according to Patrick Stevedores, is that once the two year period expires, a right or immunity is conferred on a putative defendant that cannot be taken away unless the Director affords procedural fairness to that person. Patrick Stevedores accepts, as it must, that this right or immunity can be overridden, but contends that this can only occur if it is first given the right to be heard.
68 In the alternative, Patrick Stevedores submits that even if there is no such right or immunity, it has, at the very least, a legitimate expectation that in the ordinary course it will not be subject to prosecution, and that the Director is required to afford it procedural fairness if that expectation is not to be met.
69 The judge reviewed the legislative history of s 132. Having observed that under the Occupational Health and Safety Act 1985 (Vic) (which was the predecessor of the current Act) there was no limitation on the time within which a prosecution for an indictable offence could be brought, his Honour referred to the March 2004 review of that legislation[58] (‘the Maxwell Report‘). He quoted the following passages from the report:
[58]Chris Maxwell, Occupational Health and Safety Act Review, (March 2004).
[1744] In my view, it is appropriate that there be a general limitation period on the institution of prosecutions. First, it seems wrong in principle for a potential defendant to be left indefinitely in a state of uncertainty as to whether it will have to face charges. Secondly, where the investigation arises out of a workplace incident causing injury or death, there are very significant implications for the worker, for his or her dependants and for the employer if the investigation continues for a long period.
[1745] I have received submissions from parties who have been affected by long running investigations in circumstances such as these. These submissions have drawn attention to the high degree of distress which results, both from the continuing uncertainty and, ultimately, from the awareness of all parties that they will be required to revisit the unfortunate circumstances when the matter eventually comes on for hearing.
[1746] There is another, quite different, consideration. It is of the first importance, for reasons of general deterrence that the Authority’s prosecution activities should be and be seen to be, responsive to breaches of the Act. If several years are allowed to pass between a serious workplace incident and the bringing of Defendants to trial, the educative impact of the prosecution - in underlining the importance of OHS compliance - is inevitably diminished.
[1747] Accordingly, I recommend that there be a general time limit of two years on all prosecutions. This is consistent with the position in New South Wales. The New South Wales exception in relation to Coronial enquiries should also be included.
[1748] This time limit would need to be qualified to allow for the circumstance where evidence of a contravention did not come to the attention of the Authority until some time after the occurrence. In this regard s 63A of the Environment Protection Act 1970 allows, in addition to a general limitation of three years-
‘a further period being within one year after the day on which the Authority... first obtained evidence of the commission of the alleged offence...’
70 The judge also made note of the heading to s 132 – ‘Limitation period for prosecutions’. His Honour reached the conclusion that s 132 applied to all prosecutions. He stated:
The Maxwell Report supports the view that Parliament intended by its amendments to the OHS Act to impose a limitation period on the initiating of proceedings under the OHS Act. In my view, s 132 expressly does that and has ‘otherwise provided’ for the purposes of s 7 and 159 of the [Criminal Procedure] Act. To uphold the submission of the Director that s 132 does not limit his power to initiate proceedings at any time would effectively deny the limitation on proceedings that the Maxwell Report so cogently argued should be imposed.[59]
[59]Patrick Stevedores Holdings Pty Ltd v DPP [2012] VSC 31, [59].
71 For the reasons which follow, we respectfully disagree with the judge’s construction of s 132. The construction of the section ‘begins with the ordinary and grammatical sense of the words having regard to their context and legislative purpose’.[60] And, as the High Court has said very recently, the task of statutory construction must likewise end with a consideration of the statutory text.[61]
[60]Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, 649 [5] (French CJ and Bell J); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46 [47] (Hayne, Heydon, Crennan and Kiefel JJ). Section 35 of the Interpretation of Legislation Act 1984 (Vic) provides that a construction that would promote the purpose or object underlying an Act must be preferred to a construction that would not promote that purpose or object.
[61]Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).
72 It may be accepted that one purpose of the legislation is to ensure that, in general, prosecutions for indictable offences against the OHS Act are brought in a timely fashion, within two years of the offending, recognising, however, that there will be some cases where this will not be feasible. That that is so may be gleaned from the inclusion of s 132. Further, viewed in isolation, s 132(a) might be interpreted as setting a limitation period for all prosecutions under the OHS Act. Matters pointing to this construction include the heading to the section[62] and the lack of any words of limitation within the section itself.
[62]Section 36(2A) of the Interpretation of Legislation Act 1984 provides that headings to sections of Acts passed after 1 January 2001 form part of those Acts, and can, therefore, be taken into account when construing individual provisions.
73 However, once s 132 is considered in its context, we do not think that the construction adopted below was correct. In broad terms, a principal object of the OHS Act is to provide for health and safety in the workplace.[63] In an endeavour to achieve this object, the Authority is given a central role which includes monitoring and enforcing compliance with the legislation.[64] So it is that s 130(1) provides that only the Authority and its authorised inspectors may bring proceedings for an offence and that s 132 sets the time within which the Authority may prosecute.[65]
[63]OHS Act ss 2 and 4.
[64]OHS Act s 7(1)(c).
[65]It is clear from the Maxwell Report that consideration was given to permitting unions and others to bring proceedings for offences against the OHS Act. That course was not recommended, in part, because it was considered important to the integrity and consistency of the enforcement aspect of the legislation that the Authority have exclusive control over prosecutions: Maxwell Report, above n 58 [1731]-[1742].
74 On the other hand, the OHS Act confers upon the Director a specific function that is, in some respects, akin to a supervisory role. That function is in line with the Director’s position as the leading prosecutor in the State for serious offences. The Director is responsible for advising the Authority about whether a prosecution should be brought (when a request to take action has been made but the Authority has not done so).[66] Moreover, only the Director may authorise the Authority or an inspector to bring proceedings after the expiration of two years.
[66]OHS Act s 131.
75 In addition, under s 130(5) the legislature expressly preserves the Director’s power to prosecute indictable offences, thus ensuring that there are two distinct routes to prosecution. The route that leads to prosecution by the Director takes one directly from s 130(5) of the OHS Act to the Criminal Procedure Act 2009. When that route is followed, the Director is not subject to any time limit, unless it can be said that s 132 of the OHS Act implicitly ‘otherwise provides’. In our opinion, the section, upon its proper construction, does not do so.
76 Our reasons are as follows. First, one would expect direct and unambiguous language to have been used if the section was intended to supplant the operation of the Criminal Procedure Act 2009, and the general rule that the prosecution of indictable offences is not subject to any limitation period.
77 Secondly, it would be an odd outcome if the Director were required under s 132(b) to authorise himself to bring a prosecution once two years had passed. It is difficult to see how such a strange procedure would serve any useful purpose, and one does not normally attribute to the legislature an intention to bring about a wholly irrational result.
78 Patrick Stevedores noted that there are examples, in other statutes, where special authorisation provisions apply. For example, conspiracy charges under the Commonwealth Criminal Code cannot be commenced without the consent of the Commonwealth Director of Public Prosecutions.[67] Moreover, certain local government prosecutions can only be brought by council officers who have obtained the requisite consent under the relevant legislation.[68]
[67]Criminal Code Act 1995 (Cth) s 11.5(8). The same is true of a conspiracy charge brought under s 321 of the Crimes Act 1958: see Crimes Act 1958 s 321(4).
[68]Kemp v Gough and Gilmour Holdings Pty Ltd (1995) 86 LGERA 63.
79 So much may be accepted. However, in each of those situations consent is always required before proceedings are commenced and the nature of those proceedings undoubtedly explains why that should be so. Under the OHS Act, the authorisation process comes into play only after the two year period has elapsed.
80 It would ordinarily be expected that the Director, when exercising his ordinary prosecutorial functions, would take into account the effect of any untoward delay in the laying of charges. Seemingly, there would be nothing to be gained by imposing a separate authorisation process as some sort of reminder to the Director of the need to have regard to such delay in respect of any prosecution sought to be brought after two years. Rather, if it were thought necessary to provide such a ‘reminder’, one would have expected the legislature to have approached the matter directly, and required the Director to have particular regard to the time that had elapsed.
81 Thirdly, the provisions in the Criminal Procedure Act and s 132 should not be regarded as irreconcilable.[69] The right of the Director to bring a prosecution at any time can exist harmoniously with a more limited right of the Authority to do so after two years only with the Director’s authorisation.
[69]Northern Territory v GPAO (1999) 196 CLR 553, 588 [81] (citations omitted) (emphasis added) where Gleeson CJ and Gummow J considered that whether the Family Law Act1975 (Cth) made relevant provision otherwise to s 97(3) of the Community Welfare Act 1983 (NT) ‘may be approached by considering whether the operation of the former so reduces the ambit of the latter that the provisions of the Family Law Act are irreconcilable with those of the Territory law, with the result that the Family Law Act ‘otherwise provide[s].’ See also Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136, 144 [17] (Gleeson CJ, Gummow and Hayne JJ).
82 Fourthly, the Director is the peak prosecutor in the State responsible for the prosecution of all serious crimes. His position is in no way to be equated to that of the Authority which, as we have noted, has a more particular role related to workplace health and safety and accident compensation. It is hardly suprising therefore that Parliament has left the decision whether a prosecution under the OHS Act may be brought after two years to the Director in his role as the person responsible for the prosecution of indictable matters in this State.
83 The judge placed emphasis on the Maxwell Report in determining the intent of the legislature. However, the passages from the report which his Honour quoted must be understood in the context of the legislation that was being reviewed. It was observed in the report that under the then existing legislation the Authority had the exclusive right to bring proceedings for offences.[70] The report considered whether that right should be extended to others such as trade unions.[71] The Maxwell Report did not focus on potential prosecutions by the Director, nor on any applicable time limit on such prosecutions. Consequently, the report does not assist in determining Parliament’s intention insofar as the interpretation of s 132, and its application to prosecutions brought by the Director, is concerned.
[70]Maxwell Report, above n 58, [1731].
[71]Ibid.
84 The contention by Patrick Stevedores — that the section heading, its location in the statutory scheme and the lack of an equivalent to s 130(5) in s 132 supports an interpretation that a two year limitation period applies to all prosecutions —misunderstands the statutory route for a prosecution by the Director. As we have noted above, as s 130(5) preserves the right of the Director to prosecute indictable offences under the OHS Act, there is no reason to go to s 132 to see when such a prosecution may be brought. Rather, the Criminal Procedure Act 2009 governs timing for prosecutions by the Director and there is no time limit for indictable offences unless ‘otherwise provided’. For the reasons which we have given, s 132 does not ’otherwise provide‘.
85 Given that pathway through the legislation, one would not expect s 132 to include an equivalent provision to s 130(5) because the work that it could do is already done by s 159(2) of the Criminal Procedure Act 2009. It is clear, in our view, that s 132 only applies to prosecutions brought by the Authority and authorised inspectors, and its heading and location in the OHS Act must be read in that context.
86 Patrick Stevedores contended that even if s 132 did not apply to prosecutions brought by the Director, nevertheless it had a sufficient right or immunity from prosecution by the Authority of which it ought not be deprived unless it was afforded procedural fairness. However, we consider that in determining whether there is any accrued right or immunity from prosecution, the critical question is whether a prosecution may be brought at all. The focus should be on that issue, rather than on the identity of the prosecuting body. Seen in that way, it cannot be said that s 132 creates any true immunity from prosecution.
87 Nor, in our view, does any right or sufficient interest arise that would warrant extending procedural fairness to Patrick Stevedores. It is true that once the two year period has elapsed, the company might legitimately feel some sense of comfort arising from the fact that the Authority has not brought proceedings against it. That ‘sense of comfort’ must be balanced against an appreciation that a prosecution is not foreclosed. The risk of prosecution remains, whether by the Authority with the Director’s authorisation, or by the Director personally. That limited ‘sense of comfort’ to which the company is entitled, does not, in our view, amount to any meaningful interest in not being prosecuted.
88 Further, as we have noted, following Plaintiff S10/2011 v Minister for Immigration and Citizenship,[72] there is no place for consideration of a ‘legitimate expectation’ on the part of Patrick Stevedores.
[72](2012) 290 ALR 616. See [50] above.
89 In dealing with this issue, we consider that none of the authorities to which the judge referred, and which have been cited before this Court, are directly in point. In none of those cases (Nicol, Oates v Williams and Gelzinis) was there, as there is under the OHS Act, a separate pathway to prosecution which is never closed by reason of effluxion of time.
90 Further, it must be remembered that both Nicol and Oates v Williams involved an authorisation by the Minister, rather than the Director. That is an important distinction. The Director’s position differs significantly from that of the Minister. The Director’s role is primarily concerned with the ordinary exercise of prosecutorial functions. In exercising that role, he will inevitably consider and apply the guidelines that apply to all prosecutions. These will include an assessment of the strength of the case, and a consideration of whether it is in the public interest for the prosecution to go forward. Contrary to the approach taken in Oates v Williams, and the submissions put forward on behalf of Patrick Stevedores, the Director will not confine his deliberations to a single question: why was the prosecution not brought within two years?
91 It must also be remembered that, if the construction of the OHS Act which we have adopted is correct, the Director may, at any time, prosecute for an indictable offence under that Act. The same was not true of the Minister in relation to the legislation considered in Nicol and Oates v Williams.
92 If our construction of s 132 is not accepted, and contrary to our view of the section the Director is unable to prosecute for an offence under the Act without authorising himself to do so, the other grounds of appeal and the earlier authorities would warrant further consideration. So too would his Honour’s analysis of those authorities and his treatment of the doctrine of precedent.
Must the Director, in exercising his powers under s 132(b), have regard to factors other than the reasons for delay? If so, does that suggest that his decision is not susceptible to judicial review?
93 The judge referred to the passage from the judgment of Gaudron and Gummow JJ in Maxwell quoted earlier in these reasons for judgment.[73] His Honour concluded that the decision by the Director to authorise an extension of time within which to bring proceedings, under s 132(b), was not part of the prosecution process, as discussed in that case. His Honour distinguished between a decision to authorise proceedings to be instituted after the limitation period imposed by s 132(a) has expired, and the decision to bring proceedings, stating that each decision involved quite different considerations.[74] Further, in his Honour’s opinion, a decision to extend time was of a ‘different character’ from that ‘traditionally protected from judicial review’.[75]
[73](1996) 184 CLR 501, 534. (See [29] above for the relevant passage).
[74]Patrick Stevedores Holdings Pty Ltd v DPP [2012] VSC 31, [60].
[75]Ibid [67].
94 Having quoted from Oates v Williams, the judge said:
[T]he decision to extend time to institute a proceeding does not involve considering whether or not there is a prima facie case against the accused. That decision is made by the person authorised to bring the proceeding. Under the OHS Act the DPP is authorised to bring the proceeding. However, the decision by the DPP to bring the proceeding would be made taking different matters into account to those taken into account in deciding whether to extend time in which to bring the proceeding.
The four factors mentioned in Barton v The Queen and set out in Oates v Williams would not be impinged if the decision of the DPP to extend time was subject to extending procedural fairness to the alleged offender. The decision is not one that was originally made by the Grand Jury. Secondly, it is not undesirable that the court should require procedural fairness to be extended to the accused as the court may be ultimately involved in determining the accused’s guilt [or] innocence. Thirdly, an application for stay of proceedings as an abuse of process would be unlikely to extend to a decision to extend the time for instituting proceedings as opposed to the decision to institute the proceeding. Finally, the court does not otherwise have the power to ensure that an accused person is extended procedural fairness as it would have in relation to the institution of the proceedings themselves where the court can and does enforce procedural fairness.[76]
[76]Ibid [68]-[69] (citation omitted).
95 Before this Court, the Director submitted that his Honour’s conclusion that the factors to be taken into account necessarily differed as between an authorisation and a prosecution was erroneous. So too, it was said, was his conclusion that an authorisation is of a different character from a decision to prosecute. The Director submitted that the giving of an authorisation, which necessarily occurs prior to a decision to prosecute, is no less a part of ‘the prosecution process’ than the decision to prosecute itself. Accordingly, the authorisation decision is not, and should not be, susceptible to judicial review.
96 The Director submitted that the power conferred upon him by s 132(b) to authorise a prosecution after the two year period was relevantly indistinguishable from a power to consent to the institution of a prosecution. He contended that if matters relevant to delay, including prejudice to the accused, may be taken into account by the Director when giving an authorisation (as the judge accepted), that necessarily permitted inquiry into matters such as the effect of the passage of time on the memory of witnesses and the availability of evidence. This, in turn, meant that the Director would inevitably consider the strength of the case and, in particular, whether there were reasonable prospects of conviction. In that sense, the decision to authorise an extension of time should be seen as nothing more than a step in the prosecution process, and therefore not susceptible to judicial review.
97 Both the Director and the Authority submitted that following the High Court decision in Attorney General (Cth) v Oates,[77] the case of Oates v Williams is of doubtful authority. They submit that this is because the High Court gave the relevant provisions a construction that differed from that which was the basis for the Full Federal Court’s decision. Moreover, they submitted that the reasons of that Court in Oates v Williams necessarily fell with the orders when that case was overturned.[78]
[77](1999) 198 CLR 162.
[78]Osland v Secretrary to the Department of Justice (No 2) (2010) 241 CLR 320, 353 (Hayne and Kiefel JJ).
98 The Director submitted that if, contrary to its previous contention, Oates v Williams remains authoritative, it should nonetheless be regarded by this Court as ‘plainly wrong’.
99 The Authority sought to distinguish Oates v Williams on the basis that the observations made by the Court, about the onerous obligation that would be imposed on a Minister if required to determine whether there is a prima facie case when deciding whether to extend time, are inapposite when the decision-maker is the Director. The Authority noted that the Director, unlike a Minister, daily, and routinely, considers complex matters requiring an assessment of the strength of the prosecution case, as well as whether it is in the public interest to prosecute.
100 The Director concluded his submissions with an observation to the effect that procedural fairness must be understood in light of the following statement by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam:[79]
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
[79](2003) 214 CLR 1, 14.
101 The Director submitted that the appropriate recourse for Patrick Stevedores to ‘avoid practical injustice’ arising out of any decision on his part to extend time would be to apply for a permanent stay, assuming there were proper grounds to do so.
His Honour’s observations as to precedent
102 The doctrine of precedent and its application figured prominently in the judge’s reasoning as part of his consideration of Nicol and Oates v Williams.
103 The judge noted that Nicol might be viewed as entirely distinguishable. The reasoning in Nicol turned heavily upon whether there could be said to be a ‘legitimate expectation’ on the part of the putative defendant that no charges would be brought.
104 However, his Honour concluded that a wider view should be taken of Nicol. He considered that the Full Court in that case had determined, as the reason for its decision, that the plaintiff had not acquired any right, or immunity, which entitled him to be extended procedural fairness, and treated that finding as part of the ratio.
105 On the other hand, his Honour concluded that Oates v Williams had determined that the expiration of a limitation period that was capable of being extended (but had not yet been so extended) gave rise to a right, or at the very least conferred an immunity from prosecution pending any such extension being granted. On that basis, Nicol and Oates v Williams could not be reconciled. The ratio of each case pointed to an opposite conclusion.
106 The judge said that he had not heard any submissions on these difficult issues of precedent, but would nevertheless seek to address them. He added:
The relevant principles on the obligation of a trial judge when applying the common law of Australia are relatively well settled. According to Farah Constructions Pty Ltd v Say-Dee Pty Ltd there is but one common law of Australia, and trial judges are bound by decisions of an intermediate court in another jurisdiction on issues of common law’.[80]
[80]Patrick Stevedores Holdings Pty Ltd v DPP [2012] VSC 31, [80] (citations omitted). As to a contrary view that the doctrine of precedent is not settled, see Keith Mason, ‘The Distinctiveness and Independence of Intermediate Courts of Appeal’ (2012) 86 Australian Law Journal 308, 316-27 in which the learned author discusses the current principles governing precedent, so far as intermediate appellate courts are concerned.
107 In this regard, the judge referred to the following passage from Farah Constructions Pty Ltd v Say-Dee Pty Ltd:[81]
Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.[82]
[81](2007) 230 CLR 89 (‘Farah’).
[82]Ibid 151 [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
108 His Honour added:
The High Court in Say-Dee also said that where there is no binding authority of the High Court other courts of Australia should nevertheless accept and apply what the High Court has called ‘seriously considered’ obiter dicta of the High Court.
In Cal No 14 v Motor Accidents Insurance Board the High Court heard an appeal from the Full Court of the Supreme Court of Tasmania. The trial judge had followed a decision of the Court of Appeal of New South Wales in Cole v South Tweed Heads Rugby League Football Club Ltd and held that a publican did not owe a duty of care to patrons in relation to the amount of alcohol served and the consequences of its service, save in exceptional circumstances, whereas the Full Court of the Supreme Court of Tasmania did not follow that decision. The High Court said that this revealed a split approach to stare decisis. The decision of the Court of Appeal of New South Wales in Cole had gone to the High Court and been upheld in the result, although as explained below there was no majority decision on the nature of the duty of care of a publican to his or [her] patrons.
The High Court explained how the Supreme Court of Tasmania should have dealt with both the High Court and the New South Wales Court of Appeal decisions in Cole. The High Court said:
[49] The decision of this Court in Cole v South Tweed Heads Rugby League Football Club Ltd was not, strictly speaking, an authority binding the Tasmanian courts to hold that publicans owe no duty of care to patrons in relation to the amount of alcohol served and the consequences of its service, save in exceptional cases. Callinan J upheld that proposition. Gleeson CJ decided that in the circumstances of that case there was no duty of care, but did so in terms consistent with the proposition upheld by Callinan J. On the other hand, McHugh J denied the proposition. So did Kirby J. Gummow and Hayne JJ expressly declined to decide the point. Blow J, while not considering the decision of this Court to be binding in relation to duty, did follow the ratio decidendi of the decision of the New South Wales Court of Appeal in Cole’s case, which this Court upheld in the result. The proposition that there was no duty save in exceptional cases was one ratio of that case. It was the duty of Blow J to follow that decision unless he thought it plainly wrong. This was required by the decision of this Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd. He did not think it plainly wrong, and he complied with that duty.
[50] It was said by the New South Wales Court of Appeal in Gett v Tabet that Farah Constructions ‘expanded’ the principle applied to the construction of national legislation and explained in Australian Securities Commission v Marlborough Gold Mines Ltd. But that is not correct. The principle has been recognised in relation to decisions on the common law for a long time in numerous cases before the Farah Constructions case. It was also recognised in Blow J’s judgment in this very case. The principle simply reflects, for the operation of the common law of Australia within Australia, the approach which this Court took before 1986 in relation to English Court of Appeal and House of Lords decisions, as stated in Wright v Wright.
[51] In contrast, the Full Court majority did not say whether it thought the decision of the New South Wales Court of Appeal in Cole’s case was plainly wrong, but it did not follow it. It distinguished it. This was a legitimate course to take, and consistent with the New South Wales Court of Appeal’s approach, if the Full Court majority regarded the present case as ‘exceptional’. Counsel for the Board and Mrs Scott submitted to the Full Court, as they also submitted to this Court, that the present case was exceptional, and that Blow J had erred in not finding that it was exceptional. The Full Court majority did not in terms describe the case as exceptional. Unless the Full Court majority had concluded, giving reasons, either that the present case was exceptional, or that the New South Wales Court of Appeal was plainly wrong, it was its duty to follow the New South Wales Court of Appeal. The Full Court majority did not conclude that the present case was exceptional or that the New South Wales Court of Appeal was plainly wrong. Hence it did not carry out its duty to follow the New South Wales Court of Appeal. If these appeals had not been brought, there would have been an undesirable disconformity between the view of the New South Wales Court of Appeal as to the common law of Australia and the view of the Tasmanian Full Court majority. At best the Full Court decision would have generated confusion. At worst it would have encouraged the commencement of baseless and ultimately doomed litigation, to the detriment both of the unsuccessful plaintiffs and of the wrongly vexed defendants. (my emphasis and citations omitted)
In Lipohar v R, their Honours Gaudron, Gummow and Hayne JJ stated that there is but one common law of Australia and continued: ‘the doctrine of precedent is now central to any understanding of the common law in Australia. To assert that there is more than one common law in Australia or that there is a common law of individual States is to ignore the central place which precedent has in both understanding the common law and explaining its basis.’[83]
[83]Patrick Stevedores Holdings Pty Ltd v DPP [2012] VSC 31, [81]-[84] (citations omitted).
109 Further on in his reasons the judge observed:
In light of the explicit statement in Cal No 14 v Motor Accidents Insurance Board that the intermediate appellate court of one state is bound to follow the decision of another unless convinced it was ‘plainly wrong’ the reference to ‘[d]ifferent intermediate appellate courts within that hierarchy may give inconsistent rulings’ does not connote, in my opinion, that intermediate appellate courts have the freedom to do so, but rather as their Honours say that if they do so not all of them will have correctly applied or declared the common law.
Accordingly, if Nicol constituted binding authority on whether at common law the expiration of a limitation period that is otherwise capable of extension by administrative decision is attended by an obligation to accord procedural fairness, then it might be said that the Full Court of the Federal Court in Oates v Williams was bound to follow it unless they found it to be ‘plainly wrong.’ They did find that it was wrong and gave detailed reasons why it was wrong. I think it is fair to say they found it ‘plainly wrong.’
If that be the case, then in my view, I would be bound to follow Oates v Williams. As the High Court has made abundantly plain, there is only one common law of Australia and that common law is not based on geography. The common law is the same throughout Australia. Thus, either Oates v Williams or Nicol correctly states the common law. Both cannot stand. In my opinion, the principle of overturning decisions forms part of the rules of precedent and the common law. On this basis, I would be bound to follow Oates v Williams on the assumptions I have stated.
Even if Nicol and Oates v Williams are not directly binding on me for reasons I have already explored, in my opinion I would not be justified as a trial judge in departing from the seriously considered dicta of Oates v Williams which carries with it the view that Nicol… was plainly wrong on the issue of whether the person alleged to have committed the offence had acquired a right or immunity from prosecution and that therefore the decision to authorise proceedings after the expiration of a limitation period was attended by an obligation to accord procedural fairness.
Similarly to the position in Cole, the decision of the Full Court of the Federal Court in Oates v Williams on whether the consent of the Attorney-General was attended by an obligation to accord procedural fairness was not overruled or dealt with by the High Court in AG v Oates.
I sum up the position as follows. I find the ratio of Nicol is not directly determinative of the issue before me. I find that the reasoning in Oates v Williams, SEC v Commissioner, Gelzinis v T&R (Murray Bridge) and Karounos v Flavel, persuasive and propose to follow these authorities.
If, contrary to my finding, Nicol is direct authority that (absent other authorities) I would normally be bound to follow, then I find that I should not do so but instead follow the authority of Oates v Williams that has found Nicol to be wrong.
If Nicol is not direct authority but considered dicta that (absent other authorities) I should follow, then for similar reasons I feel bound to follow the considered dicta of Oates v Williams.[84]
[84]Ibid [87]-[94].
110 With respect, it is by no means clear that the Full Federal Court, in Oates v Williams, did, as his Honour found, consider Nicol not just to be wrong, but ‘plainly wrong’. The point was simply not addressed, and having regard to when the decision was handed down, did not need to be.
111 The starting point in dealing with the approach to be taken by an intermediate appellate court to decisions of intermediate appellate courts of other states and territories is to be found, at least in relation to uniform legislation, in Australian Securities Commission v Marlborough Gold Mines Ltd.[85] There, the High Court stated:
[U]niformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court – and all the more so a single judge – should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.[86]
[85](1993) 177 CLR 485.
[86]Ibid 492.
112 The High Court restated, and arguably extended, this doctrine when, in Farah, it required intermediate appellate courts to follow decisions of other intermediate appellate courts on matters involving the common law of Australia, unless they were ‘plainly wrong’.[87]
[87]See also CAL No 14v Motor Accidents Insurance Board (2009) 239 CLR 390.
113 There is, however, considerable debate, and some uncertainty, as to the meaning to be accorded to the adjective ‘plainly’ in the context of the expression ‘plainly wrong’. The use of that adjective suggests something far more potent than mere disagreement.
114 In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs,[88] Allsop J, with whom Weinberg J agreed on this point, said that the Full Federal Court would follow its earlier decisions unless they were ‘plainly wrong’. His Honour added that this meant that the later Court had to be ‘convinced or persuaded’ of that error, and that this state of satisfaction could not be reached where the Court simply disagreed with the earlier decision.[89]
[88](2006) 150 FCR 214, 257.
[89]See also BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234, 253-4 (Greenwood J); Ying v Song [2009] NSWSC 1344; Gett v Tabet (2009) 254 ALR 504, 563, 566-7 (Allsop P, Beazley and Basten JJA).
115 In Gett v Tabet,[90] the New South Wales Court of Appeal observed that:
[90](2009) 254 ALR 504, 565-6 (Allsop P, Beazley and Basten JJA).
The phrases “plainly wrong” or “clearly wrong” can be understood to focus on at least one or more of the following attributes of a ruling:
(a) the fact of error is immediately (in the sense mentioned in [283] above) apparent from reading the relevant judgment;
(b) the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred (compare Chamberlain and Clutha), and
(c) the nature of the error that can be demonstrated with a degree of clarity by the application of correct legal analysis.
In our view, the first possibility is liable to be highly subjective and should not be required, where the other two possibilities are satisfied. The existence of (b) and (c) is a precondition to the exercise of the power to depart from earlier authority.
116 The Court went on to say that the use of the ‘semantic label’ (clearly or plainly wrong’) should be seen as a ‘necessary, but not sufficient, condition for departure from earlier authority’. It said that such a course is not to be lightly undertaken, particularly where there is a possibility that the earlier decision had been applied consistently over time.[91]
[91]Ibid 566 citing John v Federal Commissioner of Taxation (1989) 166 CLR 417, 438-9 (Mason CJ, Wilson, Dawson, Toohey, and Gaudron JJ).
117 Whatever view one takes of the meaning of the term ‘plainly wrong’, it obviously goes well beyond merely considering an earlier judgment to have been erroneously decided. There is nothing to indicate that the Full Federal Court, in Oates v Williams, would have been prepared to go that far in its criticism of Nicol. Had Oates v Williams been decided after Farah, there is at least the possibility that the Court in Oates v Williams would have felt constrained to follow Nicol.
118 All this may be beside the point because, ultimately, the judge considered that both Nicol and Oates v Williams were distinguishable, and that neither was ‘directly determinative’. In our respectful opinion, his Honour was correct in that regard.
119 What was said in Nicol about s 381(2) of the Companies Act 1961 not giving any right or conferring any immunity was at most obiter dicta, apparently stated without the benefit of any argument. The case was decided on the basis of whether there was a ‘legitimate expectation’ that would give rise to a right to be heard.[92] Further, as we have previously said, Nicol concerned the Minister, not the Director whose position is entirely distinguishable.[93]
[92]As we have noted above at [50], ‘legitimate expectation’ is no longer part of the vocabulary to be used when considering procedural fairness.
[93]See [29] above.
120 We turn then to Oates v Williams. The basis of the Court’s reasoning was that under s 1316 of the Corporations Law, once the five year period had passed, the accused had ‘the ability to plead an absolute answer to a criminal prosecution’.[94] It was said that this defence was a legal right or immunity (albeit conditional) which was very important, and which entitled the offender to be heard before a decision was made, unless the legislation made it clear (which it did not) that such a duty did not exist.[95]
[94](1998) 84 FCR 348, 354 (Foster, von Doussa and Finkelstein JJ).
[95]Ibid 354-5, 359.
121 On one view, the decision stands as authority for the proposition that a right arises or an immunity from prosecution is conferred once a limitation period expires, even though that period may subsequently be extended. Alternatively, the decision might be viewed as more narrowly confined and, as we have said, distinguishable. It deals with different legislation, expressed in different terms. Moreover, it was the Minister, rather than the Director, who was charged with responsibility for providing consent to the prosecution, and that makes a significant difference. Finally, as the appellants contended, the decision having been reversed on appeal to the High Court (albeit on different grounds to those presently relevant), there must at least be some doubt as to the authority of the reasons given on the issue before this Court. In our view, Oates v Williams was not binding upon his Honour, and is not binding upon this Court. That is so irrespective of whether we consider it to be ‘plainly wrong’.
122 We would also distinguish Gelzinis and QUBE Ports. In Gelzinis, the issues were whether the purported exercise of the power to extend time was within power and whether the written instrument extending time must include reference to the basis for the extension. The Court was not determining whether procedural fairness had to be afforded – it was simply assumed that there was such a requirement. Unlike in this case, the decision-maker had received submissions from the parties. Whilst Gray J stated that he had taken into account that the decision to extend time ‘addressed a substantive right’, his Honour’s comment must be understood in light of the acceptance by the parties that the Acting Director’s decision was subject to judicial review.[96] In those circumstances, and with great respect, we would not place substantial weight upon his Honour’s dicta.
[96](2009) 103 SASR 194, 201 [22].
123 QUBE Ports concerned a decision about a refusal to accept an enforceable undertaking. That is an entirely different matter to that with which we are concerned in the present case. Whilst the Court quoted with apparent approval what the judge below said in this case, that cannot, in our respectful opinion, have the effect of rendering his Honour’s decision immune from appeal. Whether that decision should stand must be a matter for this Court, and not for a passing observation by an intermediate appellate court which has not had the benefit of any argument regarding its correctness.
124 If, contrary to the judge’s view and our own, both Nicol and Oates v Williams were directly in point, they would be plainly irreconcilable. The High Court, in its various pronouncements on precedent since Farah, has not clearly indicated how trial judges, or intermediate appellate courts, should deal with conflicting decisions of other intermediate appellate courts, whether on matters involving uniform national legislation, or the common law of Australia.
125 Of course, the judge found, as he was entitled to, that Oates v Williams (as well as the later cases which have followed the Full Federal Court) were, at the very least, highly persuasive. He then chose to follow those cases in preference to Nicol.[97]
[97]Patrick Stevedores Holdings Pty Ltd v DPP [2012] VSC 31, [92].
126 We make no criticism of his Honour for doing so. As a judge at first instance, he was faced with the difficulty that there was a line of authority, some of it highly persuasive, that ran directly counter to Nicol. Where we differ from his Honour is in relation to his conclusion that he was ‘bound’ to follow Oates v Williams[98] based upon what he described as the ‘seriously considered dicta’ in that case.
[98]Ibid [89]
127 The decisions of intermediate appellate courts do not have the precedential weight of decisions of the High Court. Whatever may be the full implications of Farah, and its injunction that ‘seriously considered dicta uttered by a majority’[99] of the High Court should be regarded as binding, there is nothing to suggest that this principle applies to such dicta in the judgments of intermediate appellate courts.
[99]Farah (2007) 230 CLR 89, 159 (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
128 In our opinion, an intermediate appellate court such as our own, faced with conflicting decisions of other intermediate appellate courts, is not bound to follow any one of those decisions. The position might be different if, post Farah, an intermediate appellate court had said that an earlier decision of that court, or of another intermediate appellate court, was plainly wrong. In such circumstances, this Court might be bound to follow the later decision unless we took the view that the later decision was ‘plainly wrong’. Failing that, this Court is at liberty to state the law as it thinks appropriate.
129 The judge was put in a most invidious position, having regard to the conflict between Nicol and Oates v Williams. In our opinion, Nicol, though distinguishable from this case, states the law correctly.
130 We have reached the conclusion that the Director was not required to afford Patrick Stevedores the hearing to which it claims to be entitled. Our reasons may be stated as follows.
131 First, we consider that any decision pursuant to s 132(b) of the OHS Act has many of the hallmarks of a decision by the Director to consent to the institution of a prosecution. In each case, if a proceeding were brought without the requisite authorisation or consent, the defendant would be entitled to have the proceeding struck out or stayed. We can see no distinction between a precondition that must be satisfied before a proceeding is commenced, and one that must be satisfied only after a particular period has passed. In neither case can it truly be said that any substantive right on the part of a defendant is affected by the Director’s decision to permit the prosecution to go forward. At most, each decision exposes the putative defendant to a risk of conviction. That risk is the same, in both cases, as the risk that inheres in any situation where there is no anterior requirement of authorisation or consent.
132 Secondly, as we have noted,[100] the Director’s role under the OHS Act is in key respects supervisory. He is responsible for the prosecution in this State of all serious indictable offences. When the Authority is unwilling to prosecute, but a request is made by another that a prosecution be brought, the Director’s statutory responsibility is to step in and advise. His right to bring prosecutions for indictable offences against the OHS Act is expressly preserved by the legislation.
[100]See [74] above.
133 Against that background, it would be incongruous if the Director were not obliged to consider the likely prospects of a conviction when determining whether to authorise a prosecution outside the two year period. While there might be some sympathy for Ministers and their staff in respect of the burden of assessing the strength of a proposed case in other areas, no such considerations apply in respect of the Director. Assessing the strength of potential prosecutions is, after all, a core element of the Director’s broader powers and functions.[101]
[101]It is not as though such a role is alien to the Director. For example, in relation to prosecutions under the Funerals Act 2006 (Vic), if the Director of Consumer Affairs Victoria wishes to bring a prosecution after 3 years, the consent of the Director is required. One of the governing principles under the applicable Director’s Policy is that an extension of time under the Funerals Act will not be granted if it is considered that the prosecution is unlikely to be successful: Director’s Policy Criteria for the Granting of Consent to Extend Time to Prosecute Under the Funerals Act 2006 (2 November 2011) [35.6].
134 One might ask rhetorically why, under the OHS Act, Parliament has chosen to make the Director, and not some other person, the decision-maker for authorising prosecutions brought after two years. The answer must be that it was intended that he would not only consider the reasons for the delay, but would also apply his expertise to assess the likelihood of the prosecution succeeding, and whether, in his opinion, the public interest requires it to be instituted. It seems clear to us that the Director must have regard to each and every one of these matters. It follows, almost inexorably, that his decision is not susceptible to judicial review. To the extent that the judge below arrived at a different conclusion, he was, with respect, in error.
135 There are several other aspects of his Honour’s reasoning on which we would comment. We do not agree with his view that the issue for consideration on a stay application once proceedings were brought would be determined simply by whether the decision to extend time for instituting proceedings was correct.
136 Nor, with respect, do we agree that ‘the court does not … otherwise have the power to ensure that an accused person is extended procedural fairness as it would have in relation to the institution of the proceedings themselves where the court can
and does enforce procedural fairness.’[102] If a prosecution were to be instituted in this case, the court could well be invited to consider whether that proceeding should be permitted to continue. On an application for a stay, the court could take into account the delay in prosecution, and its effect upon the fairness of the trial. It could take into account the preponderance of matters that Patrick Stevedores would now wish to have the Director take into account in determining whether to authorise the prosecution. This would include the availability of witnesses and documents, as well as any matters that might result in prejudice to Patrick Stevedores in defending itself.
[102]Patrick Stevedores Holdings Pty Ltd v DPP [2012] VSC 31, [68]-[69] (citation omitted).
137 Finally, we are fortified in our view (that the Director is not required to afford Patrick Stevedores a hearing before deciding whether to grant the authorisation sought) because a decision to that effect would invite extremely deleterious consequences. If the Director is required to accord procedural fairness, it must follow that any decision that he takes on this point is subject to judicial review. In many instances, this can only lead to unwarranted fragmentation of the criminal justice process, with attendant lengthy delay.
138 Once the possibility of judicial review of the Director’s decision is accepted, the door is opened to challenge as to the adequacy of any hearing afforded to Patrick Stevedores. The starting point might be a challenge to the adequacy of the disclosure of the documents provided to the Director concerning this matter, followed by a challenge to the procedures followed on review. This can lead to a litany of legal proceedings, at significant cost to the public, but, more importantly, involving lengthy delay.
139 If anyone doubts the force of this concern, they have only to consider the vast body of jurisprudence that arose throughout the 1980s and 1990s in the Federal Court regarding the validity of search warrants, and the lawfulness of searches conducted pursuant to those warrants. A well-resourced defendant can easily pursue administrative law remedies in the courts that will take years to resolve. [103]
[103]As to the development of the law in relation to procedural fairness and investigative tribunals and some of the issues that arise in that context, see Margaret Allars, 'Reputation, Power and Fairness: A Review of the Impact of Judicial Review Upon Investigative Tribunals' (1996) 24 Federal Law Review 235, 268-272.
140 This would surely be contrary to one of the primary objects of the OHS Act, namely, the timely prosecution of offences under that Act.
Conclusion
141 For the reasons set out above, we would allow this appeal and set aside the declaration and orders made below. In their place, we would order that the originating motion dated 11 November 2011 be dismissed.
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[36]Ibid.
67
36
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