Draoui v District Court of South Australia & Anor
[2010] SASC 151
•28 May 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
DRAOUI v DISTRICT COURT OF SOUTH AUSTRALIA & ANOR
[2010] SASC 151
Judgment of The Honourable Justice David
28 May 2010
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - HEARING - NATURE OF HEARING - OPPORTUNITY TO PRESENT CASE
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS - APPREHENSION OF BIAS
Application for judicial review of District Court judge's decision to refuse an application to revoke a supervision order and set a time limit before which applicant can re-apply - applicant was liable to supervision for 10 years - applicant made application to revoke supervision order - applicant withdrew application orally to the court on day prior to hearing of application - judge proceeded to refuse application and set time limit - whether judge committed jurisdictional error by proceeding to deal with application - whether judge afforded applicant opportunity to be heard - whether an apprehension of bias existed on the part of the judge.
Held: Judge committed jurisdictional error by proceeding to deal with the application - judge did not afford applicant the opportunity to be heard - no apprehension of bias existed on the part of the judge - certiorari setting aside the decisions of the judge ordered.
Criminal Law Consolidation Act 1935 (SA); Supreme Court Civil Rules 2006 (SA), referred to.
BP Australia Ltd v Brown (2003) 58 NSWLR 322; Craig v State of South Australia (1995) 184 CLR 163; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Kanda v Government of Malaya [1962] AC 322; Kioa v West (1985) 159 CLR 550; Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1, applied.
DRAOUI v DISTRICT COURT OF SOUTH AUSTRALIA & ANOR
[2010] SASC 151Civil:
DAVID J. This is an application for judicial review of a decision by a judge of the District Court of South Australia:
·to refuse an application to revoke a supervision order; and
·to set an 18 month time limit before the applicant can re‑apply to vary or revoke the supervision order
pursuant to s 269P of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).
In summary, the applicant relies on three grounds:
1.the judge fell into jurisdictional error by deciding an application that was not before him because it had been withdrawn;
2.the applicant was not afforded procedural fairness because he was not given an opportunity to be heard on the issue of the time limit; and
3.the applicant was not afforded procedural fairness because a reasonable observer would have apprehended bias on the part of the judge.
The applicant seeks the following order:
An order in the nature of certiorari to quash the orders made on 12 November 2009 by a Judge of the District Court.
The Statutory Provisions
Section 269P of the Act states the following:
269P—Variation of revocation of supervision order
(1) At any time during the limiting term, the court may, on the application of the Crown, the defendant, Parole Board, the Public Advocate or another person with a proper interest in the matter, vary or revoke a supervision order and, if the order is revoked, make, in substitution for the order, any other order that the court might have made under this Division in the first instance.
(2) If the court refuses an application by or on behalf of a defendant for variation or revocation of a supervision order, a later application for variation or revocation of the order cannot be made by or on behalf of the defendant for six months or such greater or lesser period as the court may direct on refusing the application.
Facts
The following summarises the key events in this matter:
·10 April 2000‑2 May 2002:
The applicant was alleged to have committed 84 offences related to fraud.
·20 November 2006:
The judge found the applicant was unfit to stand trial on the charges, pursuant to s 269H of the Act.
·15 March 2007:
The judge, satisfied that the objective elements of the offences were made out, ordered the applicant be liable to supervision, pursuant to s 269M of the Act.
·27 September 2007:
Pursuant to s 269O(1)(b)(ii) of the Act, the judge made a supervision order in relation to the applicant and set a time limit of 10 years for the order, pursuant to s 269O(2) of the Act.
·26 November 2008:
The applicant filed an application to revoke the supervision order, pursuant to s 269P of the Act. The hearing was scheduled for 28 July 2009, but vacated as the applicant’s counsel was not available. The hearing was rescheduled for 12 November 2009.
·12 August 2009:
The applicant filed an application for variation of the supervision order to be allowed to travel overseas. The judge refused the application on 14 August 2009.
·11 November 2009:
The applicant requested a directions hearing. The matter was subsequently called on and Mr Mancini (counsel for the applicant) invited the judge to consider disqualifying himself. The judge refused the invitation. Mr Mancini verbally advised the court that he would no longer be pursuing the application for revocation of the supervision order.[1]
·12 November 2009:
The hearing of the matter proceeded, despite the withdrawal of the application the preceding day. The judge subsequently refused the application to revoke the supervision order, and ordered that no further application could be made to vary or revoke the order for a period of 18 months, pursuant to s 269P(2) of the Act.
[1] Affidavit of George Joseph Stephen Mancini sworn on 21 December 2009.
The events of 12 November 2009 are the subject of this judicial review. I set out the entire transcript of those proceedings:[2]
[2] Transcript of Proceedings, R v Draoui, (District Court of South Australia, Judge Muecke, 12 November 2009).
MR NIARCHOS: Your Honour’s chamber perhaps might have been advised earlier, but the applicant does not pursue the application which he filed on 26 November 2008 and seeks no order on that application accordingly.
HIS HONOUR: Can I dismiss it?
MR NIARCHOS: I believe your Honour makes no order. It is not a question of dismissing it.
HIS HONOUR: Why is that?
MR NIARCHOS: Because the applicant is not pursuing it and withdraws it in its entirety.
HIS HONOUR: Why shouldn’t I dismiss it?
MR NIARCHOS: Because there is no point in dismissing it. The applicant himself does not pursue it.
HIS HONOUR: Is he going to pay the costs?
MR NIARCHOS: I’m sorry.
HIS HONOUR: What about the costs?
MR NIARCHOS: This is not a cost jurisdiction with respect and I’m not aware that the Crown would be seeking any order for costs at all.
HIS HONOUR: I don’t know about the Crown. What about all the costs thrown away by the court. Who pays for the psychiatrist?
MR. NIARCHOS: I’m not in a position to put that submission which your Honour is raising. The applicant is withdrawing his application in its entirety, seeks no order and asks for nothing further from your Honour this morning.
HIS HONOUR: Thank you. Ms Telfer.
MS TELFER:I have no submissions. The only consequence that might follow from your Honour’s order is if your Honour refused the application, then there are some consequences pursuant to s 269P. That is, that the applicant cannot apply for another six months. If your Honour simply dismissed the application in my submission those consequences under 269P don’t come into operation.
HIS HONOUR: What if I refuse the application.
MS TELFER:If your Honour refused the application, that is a different matter. Then 269P(2) comes into operation preventing another application for variation or revocation being made for a further six months or a greater or lesser period as the court may direct on refusing application.
HIS HONOUR: Mr Niarchos.
MR NIARCHOS: I’m sorry. What aspect is your Honour wishing to hear me on?
HIS HONOUR: Any aspect.
MR NIARCHOS: Your Honour cannot refuse an application that is not proceeded with by the applicant. Your Honour has heard no evidence or submissions. None of the witnesses that could be called have been called or would be called by the applicant or Crown.
HIS HONOUR: You don’t propose to call any witnesses?
MR NIARCHOS: I’m not pursuing the application. The application is not pressed.
HIS HONOUR: Are you prepared to tell me why?
MR NIARCHOS: Yes. It’s a matter that the applicant has elected at this point not to proceed and having taken advice on the matter. Your Honour would appreciate that the applicant can at any time choose not to pursue an application of this kind.
HIS HONOUR: I refuse and dismiss Mr Draoui’s application filed on 26 November 2008 as varied yesterday and I direct that no further application may be made for variation or revocation of the order that I made on 27th of September 2007 for a period of 18 months.
MR NIARCHOS: Your Honour, that, with respect, is a most inappropriate order under that section. I would most vehemently pursue an objection to the order both as to the refusal and as to the time for which the applicant would be prevented from making an application. Those issues have not been ventilated.
HIS HONOUR: Thank you.
Grounds of appeal
Generally
Rule 199 of the Supreme Court Civil Rules 2006 (SA) invests the Supreme Court with power to make an order for judicial review, including the power to make an order in the nature of certiorari in relation to the grounds relied upon. Rule 199 provides:
199—Power to make order for judicial review
(1) The Court may make an order for judicial review.
(2) An order for judicial review is an order of one of the following kinds‑
(a)an order preventing another court or a tribunal that has a duty to act judicially from acting beyond its jurisdiction or in contravention of the requirements of natural justice (prohibition);
(b)an order setting aside the decision of another court or a tribunal that has a duty to act judicially because of error, absence of jurisdiction, failure to observe the requirements of natural justice or fraud (certiorari).
(c)an order to compel the performance of a duty of a public nature that cannot be enforced by some other adequate legal remedy (mandamus).
(d)an order to prevent a person from wrongfully exercising, or purporting to exercise, functions of a public character (quo warranto).
I further note the nature of certiorari as stated by the High Court in Craig v State of South Australia,[3] and it being an appropriate order should any of the grounds succeed:[4]
Where available certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”.
[Footnotes omitted.]
The passage makes it clear that either a jurisdictional error or a denial of procedural fairness is enough to warrant an order in the nature of certiorari.
[3] Craig v State of South Australia (1995) 184 CLR 163.
[4] Craig v State of South Australia (1995) 184 CLR 163 at 175-6.
Ground 1
I first turn to ground 1. Mr Niarchos argues that you cannot refuse an application that has been discontinued. He submits that once the court was notified that the application had been withdrawn on the preceding day, the court had no jurisdiction to hear the matter, and thus fell into jurisdictional error by refusing an application that was not before it.
Mr Wait, for the respondent, submits that the applicant was not entitled to withdraw the application. He submits that:[5]
If an applicant under s 269P could simply withdraw an application at their whim, then the very purpose of s 269P(2) could be entirely subverted and avoided because an applicant could simply, two days into a three-day hearing on an application of this sort, decide that the evidence wasn’t falling out in quite the way they had hoped, or decide that a comment here or there from the bench wasn’t favourable and might, two days into a three day hearing, decide to pull the application.
Mr Wait said that there is an implication that arises that there must be some adequate reason for the withdrawal of the application. He also referred the Court to the Court’s inherent jurisdiction to manage litigation before it.
[5] Transcript of Proceedings, Draoui v District Court of South Australia & Anor, (Supreme Court of South Australia, David J, 28 April 2010), p 23 line 32 to p 24 line 3.
The High Court in Craig v State of South Australia[6] described jurisdictional error in the following terms: [7]
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.
[6] Craig v State of South Australia (1995) 184 CLR 163.
[7] Craig v State of South Australia (1995) 184 CLR 163 at 177.
It is implicit in s 269P of the Act that to attract jurisdiction, the judge must:
·firstly, have an application to vary or revoke a supervision order before him to refuse it; and
·secondly, to have refused such an application to set a time limit.
It is important to note that the Act makes no provision for the withdrawing of an application before it, and Mr Niarchos submits that it is enough that it was withdrawn orally before the judge on both 11 and 12 November 2009.
Neither the permission of the court, nor the Director of Public Prosecutions was sought to withdraw the application.
In the absence of any statutory requirement or rule for the withdrawal of the application, an oral statement in court to that effect must be enough to withdraw the application before the court. In addition, there can be no requirement that permission is required of either the Director of Public Prosecutions or the Court without express statement in the Act or in the Supreme Court Rules. In my view, the time limit does nothing to imply that either permission or good reason must exist to withdraw the application. Since the application had been withdrawn, the judge was unable to refuse an application which was not before him. He therefore committed jurisdictional error by asserting jurisdiction on a matter which was not before him.
Even if the judge was entitled to reject the withdrawal of the application, before he can set a time limit for the next application to be made, he must “refuse” the original application. In my view, the term “refuse” implies that the judge has heard argument and perhaps received evidence, considered whether to accept or decline the application, and then declined it. That did not happen in this case. Mr Niarchos called no evidence and made no submissions in relation to the application. I find that the judge could not refuse the application because he did not hear argument in relation to it. Therefore, the judge committed jurisdictional error by setting a time limit when he had not “refused” an application.
I find ground 1 should succeed.
Ground 2
I turn now to ground 2. Mr Niarchos argues that even if there was an application before the court:[8]
[I]t would still have been procedurally unfair because there was no hearing. We weren’t called on to make submissions. There was no evidence before the judge. He didn’t consider any of the materials.
[8] Transcript of Proceedings, Draoui v District Court of South Australia & Anor, (Supreme Court of South Australia, David J, 28 April 2010), p 11 lines 30‑34.
Mr Wait, for the respondent, submits that the judge did invite submissions on the issue of what time period to fix pursuant to s 269P of the Act, even if not specifically alerting Mr Niarchos to that issue. Mr Wait says that the consequence in relation to the time limit was raised by the Crown.[9] The following exchange then took place:[10]
HIS HONOUR: Mr Niarchos.
MR NIARCHOS: I’m sorry. What aspect is your Honour wishing to hear me on?
HIS HONOUR: Any aspect.
[9] Transcript of Proceedings, R v Draoui, (District Court of South Australia, Judge Muecke, 12 November 2009), p 2 lines 29-33.
[10] Transcript of Proceedings, R v Draoui, (District Court of South Australia, Judge Muecke, 12 November 2009) p 3 lines 6-9.
Mr Wait also submits that the judge had expert reports before him to base a decision regarding the fixing of a time period pursuant to s 269P of the Act.
I turn now to the relevant law. As Mason J stated in Kioa v West:[11]
The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?
Mason J noted the “flexible” nature of what procedural fairness requires depending on the circumstances of the particular case.[12] Procedural fairness encompasses two traditional rules, namely the hearing rule and the bias rule. The applicant relies on the hearing rule in relation to ground 2, and the bias rule in relation to ground 3. The hearing rule requires that before a decision is made in relation to a person whose interests are affected, they be given the opportunity to be heard before a decision is made.
[11] Kioa v West (1985) 159 CLR 550 at 585.
[12] Kioa v West (1985) 159 CLR 550 at 585.
The New South Wales Court of Appeal in BP Australia Ltd v Brown[13] stated that in cases before courts, there are more rigorous hearing requirements than in those before tribunals or administrators. Spiegelman CJ stated:[14]
The obligation to comply with procedural fairness imports a higher level of content when imposed on a court than in decision-making processes conducted by administrators or tribunals. It requires, in my opinion, that a person likely to be adversely affected by the order of the court is given an opportunity of making submissions to the court before any such order is made or if, exceptionally, an order is made without such an opportunity being given that, upon application, the person must be put in the same position as he or she would have been prior to the order being made.
Implicit in this statement is the requirement that the person likely to be affected is aware of the issues he or she is required to address and what the subject of the proposed order is. In Kanda v Government of Malaya,[15] Lord Denning said:
If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him.
[13] BP Australia Ltd v Brown (2003) 58 NSWLR 322.
[14] BP Australia Ltd v Brown (2003) 58 NSWLR 322 at 348.
[15] Kanda v Government of Malaya [1962] AC 322 at 337.
The rationale for providing a hearing before decisions are made is self‑evident. As McHugh JA said in Lisafa Holdings Pty Ltd v Commissioner of Police:[16]
The right to be heard, like the duty to give reasons, promotes better decision making.
It gives the judge more material on which to base his or her decision, a better appreciation of the consequences and how they may affect each party, and result in a more considered decision.
[16] Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 at 23.
In relation to the submission that Mr Niarchos was not given the opportunity to be heard or make submissions, I find that he was not afforded adequate notice regarding what issues he was to address. At no time did the judge raise the issue of a time limit or that he was considering making an order pursuant to s 269P(2) of the Act. Offering to be heard on any aspect is not, in my view, sufficient for the purposes of notification, and not sufficient for the purposes of allowing a fair opportunity to be heard. This was especially the case here, as Mr Niarchos was raising the issue of withdrawing the application, rather than contemplating that the judge was ignoring the withdrawal request and proceeding to deal with the application. The result was that being unaware of the impending order, the applicant was not afforded the right to be heard on the time limit issue before the decision was made.
I find ground 2 should succeed.
Ground 3
I turn now to ground 3.
Mr Niarchos argues that the hearing which was conducted by the judge on 12 November 2009 “by way of appearance it simply looked like a predetermination”[17] and that:[18]
The fictitious bystander … looking at what was happening in the court, might … reasonably apprehend that the judge had not brought an impartial mind to all that was before him.
Mr Niarchos contends that the alleged source of apprehended bias is based on the judge’s prior dealing with the matter, in particular making the original supervision order in 2007, refusing an application to vary the supervision order in 2009, and by not disqualifying himself when asked at the directions hearing on 11 November 2009. Mr Niarchos submits that a reasonable lay observer would apprehend bias on the part of the judge by being aware of these factors, and continuing to hear the matter in the way that he did.
[17] Transcript of Proceedings, Draoui v District Court of South Australia & Anor, (Supreme Court of South Australia, David J, 28 April 2010), p 14 lines 8-10.
[18] Transcript of Proceedings, Draoui v District Court of South Australia & Anor, (Supreme Court of South Australia, David J, 28 April 2010), p 14 lines 19-24.
Mr Wait submits that no such apprehended bias existed; Mr Niarchos was invited to make submissions and he chose not to make any, and in effect, no effort was made to persuade the judge not to make the order.
This ground concerns the second traditional limb of procedural fairness, namely, the bias rule. The High Court advocated a two-stage approach to articulating an alleged source of bias:[19]
First, it requires the identification of what is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the matter on its merits.
[19] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345.
It is only after articulating the source of the alleged bias can it be considered whether a:[20]
… fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide.
[20] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345.
The principle of apprehended bias does not require me to make findings about whether the judge was actually biased, and requires no enquiry about whether the judge has a closed mind at the hearing.
I have considered the alleged apprehended bias because of the judge’s prior involvement, and refusing to disqualify himself. Based on these factors, and the way the judge dealt with the matter, I find that a reasonable lay observer would not apprehend that the judge was not bringing an impartial mind to the case. The judge’s prior involvement did not require him to make any findings about the credibility of the applicant, and having previously heard the matter, it was sensible for him to hear the application for variation. There can be no apprehension of bias by refusing to disqualify himself on the day prior, when there was no reason to suggest he should be disqualified.
I find ground 3 should not succeed.
Conclusion
I am satisfied that the judge committed jurisdictional error by proceeding to deal with an application that had been withdrawn. I am further satisfied that the judge did not afford the applicant the opportunity to be heard in accordance with the requirements of procedural fairness.
For the above reasons, I find that the order made by the judge to consider the application, refuse it, and order an 18 month time limit should be quashed.
I therefore make the following orders:
1.an order in the nature of certiorari quashing the order made by the judge on 12 November 2009 to refuse the application; and
2.an order in the nature of certiorari quashing the decision made by the judge to set a time limit of 18 months before the applicant can again apply to vary or revoke the supervision order.
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