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Eastman v Miles

Eastman v Miles

Case [2004] ACTSC 32 25 May 2004

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DAVID HAROLD EASTMAN v THE HONOURABLE JEFFREY ALLAN MILES, IAN PIKE, DIRECTOR OF PUBLIC PROSECUTIONS (ACT) and ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY [2004]
ACTSC 32 (25 May 2004)

ADMINISTRATIVE LAW – decision – s 475 Crimes Act 1900 (ACT) – direction for inquiry not given into matters raised by applicant – whether refusal to direct constitutes a reviewable decision – requirement of perception of doubt or question before direction can be given.
ADMINISTRATIVE LAW – decision – circumstances where direction not given – whether a refusal to decide – failure to decide and refusal to decide distinguished – precondition for power to be exercised – Right to Life Association (NSW) Inc v Secretary Department of Human Services & Health & Anor (1995) 56 FCR 50 considered.
ADMINISTRATIVE LAW – allegation of bias – applicant sought direction from decision-maker without raising bias – no question of apprehended bias arises.
CRIMINAL LAW – inquiry after conviction – inquiry pursuant to s 475 Crimes Act 1900 (ACT) – murder conviction – nature and scope of power to direct inquiry – judicial review sought of non-exercise of power – question of bad faith in such circumstances – no substance in allegations of bad faith.

Administrative Decisions (Judicial Review) Act1989 (ACT)
Crimes Act1900, s 428E, s 475, Part 20
Criminal Law Amendment Act 1883 (NSW)
Crimes Act 1900 (ACT)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Crimes Act 1900 (NSW)

Eastman v The Queen (1997) 76 FCR 9
Eastman v The Queen (2000) 203 CLR 1
Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 77 ALJR 1122; 198 ALR 1
Director of PublicProsecutions (ACT) v Eastman (2002) 130 A Crim R 588
Director of Public Prosecutions (ACT) v Eastman [2002] FCAFC 209; 118 FCR 360; 131 A Crim R 488; 192 ALR 353
La Roche v Cormack and Others (1991) 33 FCR 414
Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321
Ross & Anor v Costigan & Anor (1982) 41 ALR 319
Edelsten v Health Insurance Commission (1990) 27 FCR 56
Lamb v Moss (1983) 76 FLR 296
Eastman v Somes (1992) 106 FLR 346
Brownsville Nominees Pty Ltd v Federal Commissioner of Taxation (1988) 19 FCR 169
Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health & Anor (1995) 56 FCR 50
Right to Life Association (NSW) Inc v The Secretary of the Commonwealth Department of Human Services and Health and Anor (1994) 36 ALD 264
Varley v Attorney-General (NSW) (1987) 8 NSWLR 30
Kioa & Ors v West & Anor (1985) 159 CLR 550
Annetts & Anor v McCann & Ors (1990) 170 CLR 596
Re Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342
Anisminic v Foreign Compensation Commission [1969] 2 AC 147

Smith v East…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Eastman v Miles

Details

AGLC: Eastman v Miles [2004] ACTSC 32
Case: [2004] ACTSC 32
Decision Date: 25 May 2004

CaseChat Overview and Summary

In Eastman v Miles, the applicant sought judicial review of the first respondent's decisions not to direct an inquiry under section 475 of the Crimes Act 1900 (ACT) into the circumstances of his conviction for murder. The High Court was tasked with determining whether the refusal to direct such an inquiry constituted a reviewable decision and whether the failure to decide on the matter amounted to a refusal to decide, and if there was any apprehended bias in the decision-making process.

The central legal issue was whether the refusal to direct an inquiry, when there was no perception of doubt or question raised by the applicant, constituted a reviewable decision. The Court examined whether a refusal to decide was distinguishable from a failure to decide, and if there was a precondition for the power to be exercised. It was necessary to distinguish between a refusal to decide and a failure to decide, as highlighted in the case of Right to Life Association (NSW) Inc v Secretary Department of Human Services & Health & Anor (1995) 56 FCR 50. Additionally, the Court needed to determine if there were any allegations of bias that could affect the decision-making process.

The Court held that the refusal to direct an inquiry did not constitute a reviewable decision because there was no requirement for the perception of doubt or question to be raised by the applicant. The distinction between a refusal to decide and a failure to decide was considered, but the Court found that in this case, the decision-maker had not refused to decide but had simply not made a decision when there was no basis for exercising the power. Furthermore, the Court dismissed the allegation of bias, as the applicant had not raised any issue of apprehended bias in relation to the decision-maker.

The Court dismissed the applications for orders of review in respect of the first respondent's decisions not to direct an inquiry under section 475 of the Crimes Act 1900 (ACT). The Court found that there was no reviewable decision, no failure or refusal to decide, and no apprehended bias in the decision-making process.

Orders

Orders of the court

The applications for order of review in respect of the decisions of the first respondent be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Eastman v Miles [2004] ACTSC 32

Most Recent Citation

Carter v Minister for Aboriginal Affairs [2005] FCA 667

Cases citing this decision · 8 of 8 shown

The Coast Protection Board v Carramatta Holdings Pty Ltd
[2015] SASCFC 64 Para 14

…proceedings to move for appropriate relief.[21] [20] Varley v Attorney General (NSW) (1987) 8 NSWLR 30; Eastman v The Honourable Jeffrey Miles & Ors [2004] ACTSC 32. [21] Hudspeth v Scholastic Cleaning and Consulting Services Pty Ltd (No 4) [2013] VSC 14.…
Eastman v Besanko
[2010] ACTCA 15 Para 1

…These observations about whether there is a “decision” not to order an inquiry are consistent with those made by Gray J in Eastman v Miles (2004) 181 FLR 418 at [49] to [53] about the operation of the then s 475 of the Crimes Act, a predecessor of Pt 20 which was replaced by the current provisions (initially with dif…
David Harold Eastman v The Australian Capital Territory
[2008] ACTCA 8 Para 6

…ct by virtue of the extended definition in s 3(3) of the Act. As the primary judge noted, this issue was also considered by Gray J in Eastman v Miles [2004] ACTSC 32. In that case, Gray J (at [37]) considered the observations of Ellicott J in Ross v Costigan (No 2) (1982) 59 FLR 184 that s 3(3) of the Commonwealth…
Attorney-General (ACT) v Eastman
[2008] ACTCA 6 Para 1

…, ACTCA 14 of 2006, is an application for leave to appeal out of time from a judgment in another proceeding, namely that of Gray J in Eastman v Miles (2004) 181 FLR 418, which was handed down on 25 May 2004. It was heard by the Court of Appeal together with Mr Eastman’s appeals from the last two of the judgments refe…
Dunstan v von Doussa
[2008] FCA 97

…Area Health Board v Attorney-General [1993] 1 NZLR 235 cited Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391 cited Eastman v Miles (2004) 181 FLR 418 cited Finch v Goldstein (1981) 55 FLR 257 cited R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 cited Toy Centre Agencies Pty Ltd v…
Eastman v Miles
[2007] ACTSC 27 Para 1

…iry by seeking judicial review of certain actions taken by the respondent in the direction given to the magistrate pursuant to s 475: Eastman v Miles (2004) 181 FLR 418. Those proceedings were dismissed by Gray J on 25 May 2004.…
Eastman v Higgins
[2007] ACTSC 29 Para 1

…he grounds for that challenge, and the challenge, were dismissed by Gray J in the Supreme Court of the ACT on 25 May 2004: Eastman v Attorney-General [2004] ACTSC 32.…
Carter v Minister for Aboriginal Affairs
[2005] FCA 667 Para 7

…to hold that the Minister has a duty to make that decision as required by s 7(1)(a) of the AD(JR) Act. Gray J by implication held in Eastman v Miles (2004) 181 FLR 418 at 430 [39] that there was no such duty when a power was expressed to be exercisable on the decision-maker's own motion. His Honour there referred to…

View all 8 citing cases →

Cases cited in this decision · 28 of 28 shown

Eastman v Director of Public Prosecutions (ACT)
[2003] HCA 28 Para 1

…In Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 at [8] McHugh J discussed the general intent of s 475 tracing back to its origins in the Criminal Law Amendment Act 1883 (NSW) and the Crimes Act 1900 (NSW) -…
Re Minister for Immigration and Multicultural Affairs; Ex parte MIAH
[2001] HCA 22 Para 1

…the enactment (cf Annetts & Anor v McCann & Ors (1990) 170 CLR 596 at 598; Re Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57).…
Johnson v Johnson
[2000] HCA 48

…Johnson v Johnson (2000) 74 ALJR 1380, 174 ALR 655…
Eastman v The Queen
[2000] HCA 29 Para 1

…9). His application for special leave to appeal to the High Court was granted, however his appeal was dismissed on 25 May 2000 ( Eastman v The Queen (2000) 203 CLR 1). The High Court held that it could not receive fresh evidence, in particular, evidence of the applicant’s fitness to plead. It also held that the Fe…
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health
[1995] FCA 1060 Para 1

…lied was that of the Full Court of the Federal Court in Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health & Anor (1995) 56 FCR 50 which applied the aspect of the Bond decision to which I have just referred. The Right to Life case was an appeal from a decision of Lindgren J which…
Northern Territory v Mengel
[1995] HCA 65 Para 1

…rm, or foreseeable risk of harm akin to establishing the tort of misfeasance in public office (cf Northern Territory & Ors v Mengel & Ors (1994-1995) 185 CLR 307 at 347-348) before it can be said that the decision-maker acted in bad faith. Even what might constitute bad faith in the exercise of a statutory pow…
Saddington v Building Workers Industrial Union of Australia
[1993] FCA 473

…Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 336 and 338. See also General Newspapers Pty Ltd v Telstra Corporation [(1993) 45 FCR 164] at 170 per Davies and Einfeld JJ.…
La Roche v Cormack
[1991] FCA 760 Para 1

…ns of the second respondent, it is appropriate that I stay this aspect of the proceedings rather than dismiss it (see La Roche v Cormack and Others (1991) 33 FCR 414).…
Annetts v McCann
[1990] HCA 57 Para 1

…tice which might otherwise have required a hearing in the exercise of the power conferred under the enactment (cf Annetts & Anor v McCann & Ors (1990) 170 CLR 596 at 598; Re Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57).…
Australian Broadcasting Tribunal v Bond
[1990] HCA 33

…s 3(2)(a), (b) and (g)). It was a decision which had “the character or quality of finality”; it was an ultimate or operative decision: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 336 and 338. See also General Newspapers Pty Ltd v Telstra Corporation [(1993) 45 FCR 164] at 170 per Davies and Einfeld JJ.…
Vakauta v Kelly
[1989] HCA 44

…R v Eastman (No. 2) (1995) 121 FLR 155 Vakauta v Kelly (1989) 167 CLR 568 R v Australian Broadcasting Tribunal & Ors ex parte Hardiman & Ors (1980) 144 CLR 13 Kaycliff v Australian Broadcasting Tribunal (1989) 19 ALD 315…
Edelsten v Health Insurance Commission
[1988] FCA 258

…stralian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321 Ross & Anor v Costigan & Anor (1982) 41 ALR 319 Edelsten v Health Insurance Commission (1990) 27 FCR 56 Lamb v Moss (1983) 76 FLR 296 Eastman v Somes (1992) 106 FLR 346 Brownsville Nominees Pty Ltd v Federal Commissioner of Taxation (1988) 19 FCR 169 Ri…
Brownsville Nominees Pty Ltd v Federal Commissioner of Taxation
[1988] FCA 411 Para 1

…y to make a decision (s 7(1)(a)). That was the point taken in the decision of Brownsville Nominees Pty Ltd v Federal Commissioner of Taxation (1988) 19 FCR 169. However, that case is not authority for the proposition that there cannot be a decision under the ADJR Act unless there was a duty or obligation to make it.…
Kioa v West
[1985] HCA 81 Para 1

…the existence of a doubt or question, or on the question of the exercise of the power. As Mason J (as he then was) said in Kioa & Ors v West & Anor (1985) 159 CLR 550 at 584 –…
Prasad v Minister for Immigration and Ethnic Affairs
[1985] FCA 46

…) 159 CLR 550 Annetts & Anor v McCann & Ors (1990) 170 CLR 596 Re Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342 Anisminic v Foreign Compensation Commission [1969] 2 AC 147…
National Companies and Securities Commission v News Corporation Ltd
[1984] HCA 29

…Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321.…
Lamb, Peter v Moss, Thomas Ervin
[1983] FCA 264 Para 1

…articularly so where there is a matter under consideration that is a necessary step in the process (such as a committal proceeding (see Lamb v Moss (1983) 76 FLR 296, Eastman v Somes (1992) 106 FLR 346)) and even where there is no requirement that the matter be considered. In any event, it is necessary to carefully…
Lamb v Moss
[1983] FCA 254 Para 1

…hat may be particularly so where there is a matter under consideration that is a necessary step in the process (such as a committal proceeding (see Lamb v Moss (1983) 76 FLR 296, Eastman v Somes (1992) 106 FLR 346)) and even where there is no requirement that the matter be considered. In any event, it is necessary to…
Australian National University v Burns
[1982] FCA 207

…l be impaired. Although Bowen CJ and Lockhart J appeared to emphasize the first of these considerations in Australian National University v Burns (1982) 64 FLR 166, at p 172; 43 ALR 25, at p 30), there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret “decision” in a…
Duff v Freijah
[1982] FCA 191

…CJ and Lockhart J appeared to emphasize the first of these considerations in Australian National University v Burns (1982) 64 FLR 166, at p 172; 43 ALR 25, at p 30), there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret “decision” in a way that would involv…
Ross v Costigan
[1982] FCA 57 Para 1

…t is not a decision to which the ADJR Act applies. In support of this submission, the observations of Ellicott J in Ross & Anor v Costigan & Anor (1982) 41 ALR 319 at 322 in considering that the report of a Royal Commissioner was not a reviewable decision under s 3(3) of the Commonwealth Act, were cited. Ellicott J…
R v Australian Broadcasting Tribunal; Ex Parte Hardiman
[1980] HCA 13 Para 1

…propriate for the first respondent to be a protagonist in these proceedings (see R v Australian Broadcasting Tribunal & Ors ex parte Hardiman & Ors (1980) 144 CLR 13 at 35), but the Attorney-General was an appropriate contradictor. In these circumstances, s 19(3)(b) of the ADJR Act requires the Attorney-General to b…
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group
[1969] HCA 10

…atter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321.…
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation
[1963] HCA 41

…he duty to act fairly depends on a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504, Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudic…
[2002] FCAFC 209
[2002] FCAFC 209 Para 1

…was reversed on 3 July 2002 on an expedited appeal to the Full Court of the Federal Court, Director of Public Prosecutions (ACT) v Eastman [2002] FCAFC 209; 118 FCR 360; 131 A Crim R 488; 192 ALR 353. On 28 May, the High Court allowed an appeal by the applicant against the decision of the Federal Court and ordered…
[1969] 2 AC 147
[1969] 2 AC 147 Para 1

…ed in bad faith, it will vitiate that exercise of power. A decision made in bad faith will be a nullity ( Anisminic v Foreign Compensation Commission [1969] 2 AC 147 at 171 per Lord Reid). There are obvious conceptual difficulties in the non-exercise of a power on this basis. Those difficulties flow from the quest…
[1956] AC 736
[1956] AC 736 Para 1

…bad faith. Even what might constitute bad faith in the exercise of a statutory power is uncertain. In Smith v East Elloe Rural District Council & Ors [1956] AC 736 at 770, Lord Somervell of Harrow observed –…
[1983] 1 AC 768
[1983] 1 AC 768

…ground of invalidity of an administrative decision has been described by Lord Diplock, in Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821, as being reserved for “decisions that, looked at objectively, are so devoid of any plausible justification, that no reasonable body of persons co…

Legislation cited in this decision · 6

Crimes Act 1900 (ACT)
428E 2 mentions (from Para 1)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
1 mention (from Para 1)
Administrative Decisions (Judicial Review) Act 1989 (ACT)
1 mention (from Para 1)
Criminal Law Amendment Act of 1883 No 9a (NSW)
1 mention (from Para 1)
Supreme Court Act 1970 (NSW)
40) 1 mention
Therapeutic Goods Act 1989 (Cth)
1 mention (from Para 1)