Dubois v Lovegrove

[1988] HCATrans 15

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A32 of 1987

B e t w e e n -

ROGER DUBOIS

Applicant

and

BARRY PATRICK LOVEGROVE

Respondent

Application for special leave to

appeal

WILSON J

DAWSON J

Dubois

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 19 FEBRUARY 1988, AT 3.13 PM

Copyright in the High Court of Australia

AlT 15/1/PLC l 19/2/88

MR G.D. WENDLER: If the Court pleases, I appear with my

learned friend, MR S.H. MacFARLANE, for the applicant.

(instructed by Fardone & Co)

MS C.M. BRANSON:  May it please the Court, I appear for the

respondent.	(instructed by the Crown Solicitor for South
Australia.

WILSON J:	Mr Wendler.
MR WENDLER:	Your Honours, since this application for special

leave to appeal concerns a criminal matter, the applicant

presents to Your Honours an outline of contention.

Before I begin to address the merits of this

application for special leave to appeal, it is important

that I indicate that this application comes directly

from a single justice of the Supreme Court of South

Australia to this Court. There has been no application to the Full Court for leave to appeal from the refusal of leave to appeal to the Full Court from the single

justice from whence this application comes. There are

two very good reasons for this.

DAWSON J: What about the judgment of Mr Justice Cox?

MR WENDLER:  An application was made to him for leave to appeal

to the Full Court which was refused but there has been

no application to the Full Court for leave to appeal.

It comes directly to this Court from his judgment.

DAWSON J: From whose?

MR WENDLER:  Mr Justice Cox's judgment.

DAWSON J: Yes, that is what I understood.

MR WENDLER: There are two very good reasons for this: the

operation of the decision in SOTIRCHOS V BATES, a decision of

the Full Court of South Australia, is to the effect

that when leave to appeal has been refused by a single

justice of the Full Court, that is to be regarded as an

end of the matter unless the matter raises some issue of

public importance for the State of South Australia.

The second reason is this: it has been consistently held

in this State since at least 1923 that there is no appeal

from an order refusing to commit an individual for trial

or an order committing an individual for trial.

GAUDRON J:  It would not just be in this State either, would it?

That body of law, I would have thought, was throughout

the Commonwealth except where there was special provision

made to the contrary and I know of none.

MR WENDLER:  But the way the JUSTICES ACT is designed in the

State of South Australia it is unique. Section 163 of

the JUSTICES ACT is a unique provision. The other States

AlTlS/2/PLC	2	19/2/88
Dubois

appear to have a procedure whereby a case can be stated

in some way. That takes the pressure off, to a certain

extent, appeals to a superior court reviewing a decision
of a magistrate. In this particular situation section 163

of the JUSTICES ACT prevents - - -

WILSON J: Reviewing any decision of a magistrate, whether

interlocutory or otherwise? Do you say that?

MR WENDLER:  Well, section 163 prevents a review by way of an

appeal to the supreme court against - - -

WILSON J: No, you were describing what other States have as a

procedure by way of a stated case that permits the

review of a decision of the magistrate. I am asking you

of any decision of a magistrate, whether interlocutory or

otherwise?

MR WENDLER: Yes, as I understand it.

WILSON J: Yes, carry on.

MR WENDLER:  Do Your Honours have a copy of section 163 of the

JUSTICES ACT?

WILSON J: Yes, we have, Mr Wendler.

MR WENDLER: This is the section in the JUSTICES ACT which controls

appeals to the supreme court from courts	of summary
jurisdiction.	It has been held that unless the order is

a final order there is no appeal. There is no appeal

against an interlocutory order. Nowhere in that section

is the word "final" mentioned. In fact, it appears to

set up a right of appeal against every order or adjudication.

concerning an evidence ruling which the applicant contends	In the present appeal there was an adjudication
was wrong.	We sought to agitate that in the Supreme Court

of South Australia and the appeal was held to be

incompetent.

WILSON J: Assume there was an adjudication. Was it of a court

of summary jurisdiction?

MR WENDLER:  Yes, it was.

WILSON J: It was.

MR WENDLER: It was an adjudication, yes.

WILSON J: Of a court of summary jurisdiction?

MR WENDLER: That is right.

WILSON J: Notwithstanding that it was a preliminary proceeding

preparatory to a possible committal for trial?

MR WENDLER: That is right.

AlTlS/3/PLC	3	19/2/88
Dubois

WILSON J: Is such a proceeding carried on before a court of

summary jurisdiction in South Australia?

MR WENDLER:  Yes. In my respectful submission, this is what

happens: the critical question is not what - the magistrate
does not decide guilt or innocence, he decides whether to
commit for trial; whether to put a person in jeopardy or

not. That is a - - -

DAWSON J:  He does not really even decide that. What he decides

is what happens to the person so far as his freedom is

concerned.	He decides whether he should be refused bail
or given bail or set free.	That is what he decides.

MR WENDLER: That is right. In other words, whether to put a

person in jeopardy or not.

DAWSON J:  But that is not exercising the jurisdiction of a

court of sun:nnary jurisdiction, that is an administrative

function.

MR WENDLER:  This is one of the great controversies as to what

really happens jurisprudentially during a committal hearing.

DAWSON J: Not much controversy about that.

MR WENDLER: Well, as I read the cases it appears that this

committal hearing is a strange animal. It appears to be

an administrative functionary determining very, very

important rights. This is an issue of particular

importance to the State of South Wales. In other words,

the applicant seeks special leave to appeal to attack the

construction of section 163 of the JUSTICES ACT.	It is an
application of some importance to this State.

WILSON J: And you wish to attack it in respect of, what?

MR WENDLER: In respect of the infiltration of the word "final"

in that section.	The applicant contends that the
word "final" has	been read in as a result of judicial
convenience. It	is not something that exists in the
statute itself.	A right of appeal is created by the words
of the statute.

DAWSON J: Which is the word you rely upon?

MR WENDLER: "Adjudication".

DAWSON J: And that is in the context of "conviction" or "order".

MR WENDLER:	Of the evidence ruling.
DAWSON J:	Both of which indicates something more than a mere

ruling, and it takes its colour from that context.

MR WENDLER:  Yes, that is right.

AlTlS/4/PLC	4	19/2/88
Dubois

DAWSON J:  ..... would be quite hopeless if

proceedings were to be conducted on the basis that

every time the magistrate gave a ruling that proceedings

could stop in order to enable an appeal to be brought

against a ruling.

MR WENDLER:  I agree with that but an evidence ruling is not

part of the law adjective, it goes to substantive

rights. It is not part of the remedial law.

DAWSON J: Well, that does not make it an adjudication

nevertheless within that context.

MR WENDLER:  The applicant seeks to agitate the word

"adjudication" in the sense that it is part of the

substantive law, not part of the law adjective. That	is the critical issue in this application for special
leave to appeal. If the applicant is correct on
that construction then an avenue of appeal from a
court of smmnary jurisdiction would be set up.

GAUDRON J: All of which assumes that we are talking about a

court of SUIIllilary jurisdiction.

WILSON J: That was the point I was going to make to you,

Mr Wendler. You have got to get over that hurdle

as well. Not only would your first point require the

overturning of 60 years of decision making in

South Australia but what authority have you got for

establishing that this Court, conducting a preliminary

hearing, is a court of SUIIllilary jurisdiction?

Mr Justice Cox seemed to think otherwise but you do not

challenge that, do you?

MR WENDLER:  I do not think the answer lies in what it is

called. The answer lies in what this functionary

does.

WILSON J: It does rely in what the proceedings

section 163 applies to, does it not?

MR WENDLER:	Yes.
WILSON J: And it bears on its face an application to a court

of sunnnary jurisdiction. Now, preliminary committals

are determined under Part V, is it - a different Part

anyway of the Act. Have you any authority to say that

this is a court of sunnnary jurisdiction when it was handling

this case, your client's case?

MR WENDLER:	In my respectful submission, the complete reading of the Act suggests that it is a court of sunnnary
jurisdiction carrying out a special function.
DAWSON J:	Mr Wendler, if it were, then there would be an appeal

fran an order of committal. Have you ever heard of an

appeal from an order of committal in this State?

MR WENDLER:  No, but because it has been shut out as a result of

STUART V ALLCHURCH in 1923. This is why this application

5   19/2/88

D ubois

comes to this Court, to agitate this, it attacks this

position. It is of general importance, in my respectful

submission.

WILSON J: Yes. Well, continue your submissions.

MR WENDLER:  I cannot pursue it much further. I would simply

be embarking on arguing the appeal in its entirity. I

have simply identified what the specialness of the

application is. I cannot pursue it much further in

this type of proceeding. If the Court pleases.

WILSON J:  The Court need not trouble you, Miss Branson. The

Court is not persuaded that sufficient doubt attends

the decision of Mr Justice Cox to warrant the grant of

special leave. Special leave is therefore refused.

AT 3.25 PM THE MATTER WAS ADJOURNED SINE DIE

AlTlS/6/PLC	6	19/2/88
Dubois