Dougherty, Terrence Anthony v Coate, Jennifer Ann & Anor Erskine, Donald James v Coate, Jennifer Ann & Anor

[1995] FCA 1076

IN THE FEDERAL COURT OF AUSTRALIA   )
VICTORIA DISTRICT REGISTRY         ) 
GENERAL DIVISION                   )

No. VG887 of 1995

BETWEEN:TERRENCE ANTHONY DOUGHERTY

Applicant

AND: JENNIFER ANN COATE

Firstnamed Respondent

AND:AUSTRALIAN SECURITIES COMMISSION

Secondnamed        Respondent

VG888 of 1995

BETWEEN:DONALD JAMES ERSKINE

Applicant

AND:JENNIFER ANN COATE

Firstnamed Respondent

AND:     AUSTRALIAN SECURITIES                     COMMISSION

Secondnamed Respondent

CORAM:    Jenkinson J.

PLACE;    Melbourne

DATE:     14 December, 1995

REASONS FOR JUDGMENT

I am convinced that it would be necessary to engage in a minute examination of the evidence in this case, even if Mr. Hayes is correct in his submission that it will be possible to demonstrate error of law in the Magistrate's reasoning.  It will of course not be a sufficient discharge of the duty of the court exercising jurisdiction under the Administrative Decisions (Judicial Review) Act to identify a particular error or law and send the matter back to the Magistrate.  It would be essential that the court consider the whole of the evidence and the whole of the nature of the case that is being made.  If the evidence were incapable of supporting a case under any of these charges, it would be the court's duty to give a direction to that effect, and if that were not the position it would be the duty of the court to expound the relevant law, complex as it must be if Mr. Hayes' first submission is correct : that is to say, the submission founded on what Gowans J. said in Marchesi's Case.  It would be the duty of the court then to expound in considerable detail what the relevant considerations were which the Magistrate would have to take into account.  I can only repeat the ever strengthening observations by judges of the High Court, to say nothing of other courts, against the fragmentation of the criminal process by judicial review at this stage.

I am convinced that the discretion would at the hearing be exercised against review and therefore I think at this stage I should make the order sought.  I will order in each case that the proceeding be, pursuant to Order 20, Rule

2(b) of the court's rules, dismissed.

I certify that this and the 2 preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.

Associate

Dated:  14 December, 1995