Ezekiel-Hart v ACT Director of Public Prosecutions

[2023] ACTSC 373

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Ezekiel-Hart v ACT DPP

Citation: 

[2023] ACTSC 373

Hearing Date: 

24 November 2023

Decision Date: 

8 December 2023

Before:

McWilliam J

Decision: 

(1)    The application filed 9 October 2023 is dismissed. 

(2) The proceeding is listed in the Registrar’s civil applications list at 9:45am on 2 February 2023 for the referral and determination of the first defendant’s application filed 5 October 2023 and any order to be made under r 3566 of the Court Procedure Rules 2006 (ACT).

(3)    The defendants are to file and serve written submissions in relation to the matters the subject of order 2 on or before 21 December 2023.

(4)    The plaintiff is to file and serve written submissions in reply on or before 31 January 2024.

Catchwords: 

ADMINISTRATIVE LAW – JUDICIAL REVIEW – Application for review of decisions of Directors of Public Prosecution (ACT and Commonwealth) – application in proceeding to transfer proceeding to Federal Court – whether a “special federal matter” – whether special reasons for declining to transfer exist – where relief sought may be beyond the power of any court – special reasons established

Legislation Cited: 

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 8, 9

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Australian Human Rights Commission Act 1986 (Cth) ss 4, 26

Court Procedures Rules (2006) (ACT) r 3566

Director of Public Prosecutions Act 1983 (Cth) ss 5, 9

Human Rights Commission Act 2005 (ACT) s 98

Judiciary Act 1903 (Cth) ss 39B, 79(1)

Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 4(1)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss 3, 6, 9(3)

Legislation Act 2001 (ACT) s 7

Cases Cited: 

Ayles v the Queen [2008] HCA 6; 232 CLR 410

Burns v Corbett [2018] HCA 15; 265 CLR 304

Crosby v Kelly [2012] FCAFC 96; 203 FCR 451

Ex parte Golding (1903) 3 SR (NSW) 260

Hardwick v Federal Commission of Taxation [2015] NSWSC 1557

Hopkins v Governor-General of Australia [2013] NSWCA 365; 280 FLR 49

Kruger v Commonwealth of Australia (1997) 190 CLR 1

Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265

Magaming v The Queen[2013] HCA 40; 525 CLR 381

Maxwell v The Queen (1996) 184 CLR 501

Moore v Commonwealth Director of Public Prosecutions [2023] NSWCA 153

MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; 233 CLR 601

R v YL [2004] ACTSC 115

Woods v Porter [2018] ACTSC 161

Parties: 

Self-Represented (Plaintiff)

ACT Director of Public Prosecution (First Defendant)

Commonwealth Director of Public Prosecution (Second Defendant)

Representation: 

Counsel

Self-represented ( Plaintiff)

A Muller SC (First Defendant)

E Jones (Second Defendant)

Solicitors

Self-Represented (Plaintiff)

ACT Director of Public Prosecutions (First Defendant)

Commonwealth Director of Public Prosecution (Second Defendant)

File Number:

SC 348 of 2023

McWILLIAM J:          

1․At some point prior to 1 August 2023, the plaintiff in this proceeding, Mr Ezekiel-Hart commenced criminal prosecutions against the Council of the Law Society of the ACT (Council) and Mr Robert Reis, the Professional Standards Manager at the Law Society of the ACT, alleging contraventions of s 98 of the Human Rights Commission Act 2005 (ACT) and s 26 of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act).

2․In separate decisions, each of the defendants in this proceeding, the Director of Public Prosecutions for the ACT (the ACT DPP), and the Director of Public Prosecutions for the Commonwealth (the CDPP), took over those prosecutions under their respective laws and then discontinued them in the Magistrates Court. Both DPPs are involved as the summons laid by Mr Ezekiel-Hart alleged contraventions of, as noted above, both Territory and Commonwealth laws. The ACT DPP decided to take over and discontinue those prosecutions brought under ACT law (on 25 July 2023 in respect of the prosecution against the Council, and on 27 July 2023 in respect of the prosecution against Mr Reis). The CDPP did the same in respect of the prosecutions bought under Commonwealth law around a similar time, and all summons were formally dismissed by a magistrate on 1 August 2023. In doing so, and relevant to the present interlocutory application, the CDPP was acting pursuant to s 9 of the Director of Public Prosecutions Act 1983 (Cth) (CDPP Act).

3․By Originating Application filed on 29 August 2023 in this Court, the plaintiff commenced a fresh civil proceeding, seeking judicial review of each of the decisions made by the ACT DPP and the CDPP to take over and discontinue the prosecutions. 

4․The plaintiff seeks relief quashing the decisions and mandating the continuation of the criminal proceedings which were taken over by the respective DPPs.

The present application

5․The CDPP has filed an application dated 9 October 2023, seeking an order to transfer the proceeding to the Federal Court, pursuant to s 6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-Vesting Act).  Essentially, it argued that:

(a)The proceedings involve a “special federal matter” as defined in s 3(1) of the Cross-Vesting Act, because a writ is being sought against a Commonwealth Officer (namely the CDPP) and as such, the proceedings are within the original jurisdiction of the Federal Court: s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act).

(b)Apart from the jurisdiction vested by the Cross-Vesting Act, this Court would not have jurisdiction to hear the proceeding.

(c)Where that is the case, this Court must transfer the proceeding to the Federal Court, unless satisfied that there are special reasons other than reasons relevant to the convenience of the parties: s 6(3) of the Cross-Vesting Act.

(d)There were no special reasons for the Court to retain the matter.

Issues

6․The issue is whether to accede to the CDPP’s application and transfer the proceeding to the Federal Court. The genesis for the application is s 6 of the Cross-Vesting Act. It relevantly provides that if there is a matter pending in a Territory Court that is a “special federal matter” and the Court does not make an order for the proceeding to be determined by the Territory Court under s 6(3) of the Cross-Vesting Act, then the proceeding must be transferred to the Federal Court.

7․Section 6(3) of the Cross-Vesting Act permits this Court to retain the matter “if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties”.

8․There are therefore two issues:

(a)Issue 1: Whether the proceeding involves a “special federal matter”; which involves determining –

(i)Whether the matter is one in which the Federal Court has original jurisdiction; and

(ii)Whether the ACT Supreme Court otherwise has jurisdiction to hear the matter (apart from the operation of the provisions in the Cross-Vesting Act).

(b)Issue 2: If the proceeding does involve a “special federal matter”, whether there are “special reasons” for declining to transfer the proceeding under s 6(3) of the Cross-Vesting Act.

Notification of application to Attorneys-General

9․Section 6(4) of the Cross-Vesting Act requires that notification of the special federal matter must be given to the Attorney-General of the Commonwealth and the Attorney-General of the ACT (being the Attorney-General of the place where the proceeding is pending). 

10․That enables the respective Attorneys-General to be heard on the application if they choose to. Under s 6(6) of the Cross-Vesting Act, in considering whether there are special reasons to decline to transfer the matter, the Court must take into account any submission made by an Attorney-General in relation to the proceeding.

11․The evidence before the Court established that such notice occurred on 7 November 2023. 

12․The Commonwealth Attorney-General has (on 21 November 2023) declined to make any submission on the decision whether to transfer. The ACT Attorney-General has not yet responded, but as more than 14 days have passed since notice was given, I consider that a reasonable time has elapsed to provide the ACT Attorney-General with an opportunity to be heard or otherwise participate (as required by s 6(4)(b) of the Cross-Vesting Act).  Despite the lack of a response from the ACT Attorney-General, the Court is not prevented from determining the application.

Issue 1: Does the proceeding involve a “special federal matter”?

13․The definition of a “special federal matter” is contained in s 3(1) of the Cross-Vesting Act.  The relevant paragraph of the definition is (e), which states as follows:

(e)a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903;

being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction.

14․The first part of that definition directs attention to s 39B of the Judiciary Act and the  assessment of whether the matter is one within the original jurisdiction of the Federal Court. 

15․The second part of the definition is whether the Territory would have jurisdiction apart from the Cross-Vesting Act. 

Understanding what constitutes “a matter”

16․Section 6(1A) of the Cross-Vesting Act provides as follows:

However, the court must only transfer so much of the proceeding as is, in the opinion of the court, within the jurisdiction (including the accrued jurisdiction) of the Federal Court, or the court mentioned in paragraph (2)(b), as the case may be.

17․It was accepted by the ACT DPP that if the Court decided to transfer the federal aspect of the proceeding, then it would transfer the entire proceeding. There is no dispute that the Federal Court would have jurisdiction over the claim against the ACT DPP. The Commonwealth can invest the Federal Court with Territory jurisdiction, and s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) in combination with s 9(3) of the Cross-Vesting Act is such an investiture of complete Territory civil jurisdiction on the Federal Court: Crosby v Kelly [2012] FCAFC 96; 203 FCR 451 at [35].

18․However, it is important to understand what constitutes a “special federal matter”, and specifically the boundaries of the “matter” itself, because that will inform the critical question of whether the Supreme Court has jurisdiction over “the matter” apart from the operation of the Cross-Vesting Act.

19․Here, there are two decisions under challenge and two respondents, one operating under Territory legislation, and one operating under Commonwealth legislation.  The factual substratum was not in evidence in sufficient detail to determine whether the separate claim against the ACT DPP nevertheless was part of the one matter with the claim against the CDPP.  I tend to the view that the “matter” is only the federal component, namely the claim against the CDPP, and have proceeded on that basis in considering jurisdiction below. 

20․It is also important to point out what is not part of “the matter”.  Part of the factual substratum includes the earlier criminal prosecutions which have been discontinued by the defendants.  However, they are separate proceedings.  The fact that the Supreme Court may have had jurisdiction in relation to those previous criminal proceedings does not then have a bearing on subsequent civil proceedings.

Is the matter within the original jurisdiction of the Federal Court?

21․Section 39B of the Judiciary Act commences as follows:

39BScope of original jurisdiction

(1)Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

22․The CDPP is a statutory office holder pursuant to s 5 of the CDPP Act. The relief sought by the plaintiff is in the nature of mandamus. The plaintiff is seeking to compel the CDPP to continue the prosecutions he commenced. The present proceeding is therefore one that involves the exercise of Federal Jurisdiction, with such jurisdiction being within the original jurisdiction of the Federal Court, subject to anything to the contrary in subsections 39B(1B), (1C) or 1(EA) of s 39B of the Judiciary Act.

23․For reasons that follow, none of those subsections of s 39B of the Judiciary Act apply here. 

24․Section 39B(1B) deals with the circumstance where a decision has been made to prosecute a person, and the prosecution is proposed to be commenced in a court of a State or Territory.  That is not the case here.  There is no prosecution presently before the court.  What is before the court is the judicial review proceeding.  The decision that is under challenge is the reverse, namely the decision to discontinue the prosecution.

25․Section 39B(1C) deals with the circumstance where a prosecution for an offence is on foot and any appeal arising out of such prosecution. Again, neither of those circumstances apply here.

26․Section 39B(1D) deals with a particular claim for relief again before the commencement of a prosecution. That does not apply here, as the prosecution was commenced but discontinued. Section 39B(1E) provides an exception to the operation of s 39B(1D). It may be passed over because the facts giving rise to the plaintiff’s application do not fall within s 39B(1D).

27․Section 39B(1EA) deals with civil proceedings where there is a “related civil proceeding decision”, which, when traced through the definitions including cross-references to different legislation, concerns national security information. It has no application here.

28․The plaintiff pointed to a definition in s 39B, being a “related criminal justice process decision”. He argued that the decision to take over a prosecution and discontinue it was a related criminal justice process decision. While I accept that the judicial review proceeding against the CDPP might be viewed as falling within that definition, that does not assist the plaintiff. Before the definition in the section becomes relevant, the matter must first fall within one of the subsections, none of which apply which for reasons just discussed.

29․However, there is also a separate path to the original jurisdiction of the Federal Court. Section 39B(1A) of the Judiciary Act also includes original jurisdiction for any matter:

…arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. 

30․The decisions to take over the private prosecutions instituted by the plaintiff and then discontinue them was made under s 9 of the CDPP Act, being a law made by the Parliament.  The challenge to those decisions may be seen as a matter “arising” under such a law.  It is not a matter in respect of which a criminal prosecution is instituted (those words relate to the criminal offence itself, not the civil decision whether to prosecute it).  Section 1A may be a separate available means by which original jurisdiction is invested in the Federal Court.

31․Whichever of the available paths is taken, the present proceeding for a writ against the CDPP is a matter within the original jurisdiction of the Federal Court.

Does the Court have jurisdiction to hear the matter apart from the operation of the Cross-Vesting Act?

32․The defendants submitted that the Court does not otherwise have jurisdiction to review decisions made by the CDPP.  I agree with that conclusion, for reasons that follow.

33․The proceedings are commenced pursuant to the Administrative Decisions (Judicial Review) Act 1989 (ACT) (Territory ADJR Act).  However, that Act only applies (relevantly here) to decisions made under an Act of the ACT Legislative Assembly: see the definition of “enactment” in the Dictionary to the Territory ADJR Act, and the definition of “Act” in s 7 of the Legislation Act 2001 (ACT).

34․The decisions made by the CDPP that the plaintiff wishes to challenge were made under a Commonwealth Statute.  As such, the plaintiff cannot rely on the Territory ADJR Act as a source of jurisdiction.

35․To the extent that the plaintiff relies on the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Cth ADJR Act), as being the statutory source of judicial review:

(a)Section 5 provides that a person who is aggrieved by a decision may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) (only) for judicial review.

(b)Section 8 provides that the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) have jurisdiction to hear and determine application made to those Courts under that Act.

(c)Section 9 of the Cth ADJR Act expressly excludes State court jurisdiction to review a decision to which the Cth ADJR Act applies.  There is no section that otherwise provides the Territory courts with jurisdiction in respect of that statute.

36․During the hearing, the second defendant addressed whether this Court had inherent supervisory jurisdiction to review the impugned decisions. While there is a broad jurisdiction granted to this Court under s 20 of the Supreme Court Act 1933 (ACT), the historic common law jurisdiction of any State or Territory court does not include the jurisdiction to issue a writ of mandamus against a Commonwealth officer. In Ex parte Golding (1903) 3 SR (NSW) 260 it was held that, before the establishment of the High Court, a State court had no power to grant mandamus against a federal officer. This principle was affirmed in Kruger v Commonwealth of Australia (1997) 190 CLR 1 at 171; MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; 233 CLR 601 at [27]-[30]; and Burns v Corbett [2018] HCA 15; 265 CLR 304 at [129]. Accordingly, this Court undoubtably does not have the inherent jurisdiction to hear the part of the plaintiff’s claim that seeks a writ of mandamus against the CDPP.

37․The plaintiff in his written submissions relied on s 4 of the AHRC Act as a source of jurisdiction.  That section of the AHRC Act says that the statute in question is “not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with that Act.”  Those words do not in terms create or vest any jurisdiction in any court.  They merely operate to preserve any concurrent regime (if it exists) in a State or Territory, to the extent that it is not inconsistent with the Commonwealth statute. 

38․Such reliance also misunderstands the nature of the decision to which jurisdiction attaches. This judicial review proceeding does not in any way involve the offence created by s 26 of the AHRC Act, being one of the offences that the plaintiff originally prosecuted.

39․The proceeding relates to the CDPP’s discretion to take over the prosecution and then discontinue it.  The AHRC Act does not operate on that conduct and there is no anti-discrimination or human rights legislation that otherwise provides the ACT Supreme Court with jurisdiction in relation to a decision made by a Commonwealth officer, acting on behalf of the Commonwealth and not the Territory.

40․Accordingly, the “matter” with which this judicial review proceeding is concerned, insofar as it affects the CDPP, is a special federal matter within s 3(1) of the Cross-Vesting Act.

Issue 2: Are there “special reasons” for declining to transfer the proceeding?

41․The plaintiff argued that, even if the Court found the only jurisdiction was that arising from the combined operation of s 39(1) of the Judiciary Act and s 4(1) of the Cross-Vesting Act, nevertheless that was sufficient jurisdiction to permit this Court to determine the proceeding at a final hearing. The plaintiff argued that the Court should exercise its discretion under s 6(3) of the Cross-Vesting Act to keep the proceeding in this Court, as there are ‘special reasons’ for doing so.

42․Section 6(3) of the Cross-Vesting Act provides as follows:

The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.

43․The plaintiff argued that there were a number of factors that constituted special reasons for the Court declining to transfer the matter.  First, the plaintiff argued that the interests of justice favoured the proceeding involving the ACT DPP and the CDPP being heard together and not fragmenting the proceedings, by carving out the Federal aspect of the proceeding against the CDPP for transfer to the Federal Court.

44․The defendants agreed, submitting that whatever the decision made by the Court, the entire proceedings should either remain in this Court or be transferred to the Federal Court.  Fragmentation is thus not an issue.

45․Next, the plaintiff argued that there was nothing to suggest that the Federal Court would be able to provide a more efficient or timely resolution of the proceeding. On the contrary, the plaintiff argued that the lack of a resident Federal Court judge in the ACT meant that the costs and inconvenience to all parties would be likely to increase as a result of transfer. This submission was met by the defendants pointing to s 6(3) of the Cross-Vesting Act, which provides that special reasons are reasons “other than reasons relevant to the convenience of the parties”.

46․The plaintiff also argued that if the matters are all transferred and the plaintiff is ultimately successful in quashing the decisions made by the CDPP and the ACT DPP, then the criminal proceeding will necessarily return to Territory.  The defendants accepted this was the case.  Again however, they submitted this was a matter categorised as one of convenience, and not of itself a special reason to decline the application to transfer. 

47․The defendants each submitted that there was a dispute about the underlying merit of the proceeding, and the first defendant has filed an application dated 5 October 2023 seeking to set aside the Originating Application on the basis that the decisions the subject of challenge are not amenable to judicial review.  It should be emphasised that the parties did not attempt to address the underlying merit of the proceeding in any substantive way on the present application.  That question is very much live.

48․The second defendant submitted that the Federal Court was the appropriate forum in which to deal with that question, once the proceeding was transferred.  However, in my view, where there appears to be a very significant issue about the justiciability of the decisions under challenge, that is relevant to the jurisdiction of any court to review the decisions under challenge by this proceeding.  It would be quite unsatisfactory for the Supreme Court to transfer a matter to the Federal Court for judicial review, only for that Court to then find that the matter was not amenable to review in the first place.   

49․Under s 79(1) of the Judiciary Act, although this Court is exercising Federal jurisdiction for the purposes of determining the present application, the procedural rules of the Territory apply. One of those rules of procedure is r 3566 of the Court Procedures Rules (2006) (ACT).  It provides as follows (emphasis added):

3566Judicial review—power of the court to stay or dismiss applications in certain circumstances     

(1)The court may, by order, stay or dismiss a judicial review application, or a claim for relief in a judicial review application, if the court considers that—

(a)it would be inappropriate—

(i)   for the proceeding in relation to the application or claim to be continued; or

(ii)     to grant the application or claim (including, for an application for a statutory order of review, because the Judicial Review Act, section 8 (2) (b) (Effect of Act on other rights) applies); or

(b)the application is incompetent; or

(c)no reasonable basis for the application or claim is disclosed; or

(d)the application or claim is frivolous or vexatious; or

(e)the application or claim is an abuse of the court’s process.

Note: …

(2)A power of the court under this rule may be exercised at any time in the relevant proceeding but, in relation to the power to dismiss an application, the court must try to ensure that any exercise of the power happens at the earliest appropriate time.

(3)The court may make an order under this rule on application by a party to the proceeding or on its own initiative.

(4)The court may receive evidence on the hearing of an application for an order under this rule.

50․The operation of this rule and the words emphasised above are to promote the early termination of proceedings that fall within the categories specified.  Where there is a real question about whether there is a reasonable basis for the application disclosed, the Court does not allow the proceeding to drift along until it suits a party to bring an application, including transferring a proceeding where there is a known concern to another jurisdiction to occupy the undoubtedly stretched judicial resources of another court in dealing with it.  The rule has greater force here because in fact one of the parties (the first defendant) has sought an early crystallisation of the point by filing an application seeking the proceeding be dismissed, and the application was made before the present cross-vesting application.

51․The concern about whether the decisions made by the defendant are amenable to judicial review arises from the existence of clear High Court authority on this very question, which relates to what is described as the prosecutorial discretion.  In Maxwell v The Queen (1996) 184 CLR 501 (Maxwell)where Gaudron and Gummow JJ explained at 534 (emphasis added):

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… The integrity of the judicial process – particularly its independence and impartiality and the public perception thereof – would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what.

52․See also Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 at [37] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Magaming v The Queen[2013] HCA 40; 525 CLR 381 at [68] per Gageler J.

53․In Ayles v the Queen [2008] HCA 6; 232 CLR 410, Kiefel J (as her Honour then was, and with whom Gleeson CJ and Heydon J agreed) said at [71] (references omitted, emphasis added):

In Director of Public Prosecutions (SA) v B Gaudron, Gummow and Hayne JJ referred to the fundamental importance of the line drawn between the decision whether to institute or continue criminal proceedings, the province of the executive, and decisions directed to ensuring a fair trial and the prevention of abuse of the court's processes, the province of the courts. In Maxwell v The Queen Dawson and McHugh JJ pointed out that, save where it is necessary to a fair trial or the prevention of abuse, courts in Australia do not purport to exercise control over the institution and continuation of criminal proceedings. In Barton v The Queen it was said that it ought now be accepted that certain decisions involved in the prosecution process are insusceptible of judicial review. They include the decision whether to lay or prosecute a particular charge. In Maxwell v The Queen the refusal of the trial judge to accept a plea, which the prosecution would accept, was considered to be of the nature of a review.

54․In the Territory, in R v YL [2004] ACTSC 115, Crispin J applied Maxwell and referred at [70] to the fact that the courts have no jurisdiction to review the decision by the DPP to decline to proceed on a prosecution, subject to the inherent jurisdiction of the court to prevent abuse of their own processes.   His Honour went on to say at [74] that, while the Court had the power to refuse to accept a nolle prosequi (being a formal abandonment of the proceeding), the power would be exercised to prevent an abuse of process, unfairness or injustice “only in rare or exceptional circumstances”.

55․More recently, the general legal principles applying to the exercise of the prosecutorial discretion were set out in Woods v Porter [2018] ACTSC 161 at [19]-[24]. In particular, reference was there made to the prosecutorial discretion as a matter not generally amenable to judicial review save as to the limited circumstance where it is necessary to ensure a fair trial or to prevent a potential abuse of process.

56․A special reason not to transfer the proceeding must surely be where the Federal Court equally would not have the power to grant the relief sought by the plaintiff.  If any authority were needed for that proposition, the defendants drew attention to cases where there were fundamental difficulties with the plaintiffs’ claims that favoured the proceedings being determined without unnecessary delay or additional cost: Hardwick v Federal Commission of Taxation [2015] NSWSC 1557 at [63]; Moore v Commonwealth Director of Public Prosecutions [2023] NSWCA 153 (Moore) at [69(6)]; Hopkins v Governor-General of Australia [2013] NSWCA 365; 280 FLR 49 at [27].

57․I accept that in Moore, the underlying merit of the proceeding had been argued by the time the cross-vesting issue was considered, so that the NSW Court of Appeal was in a position to make findings about merit as a special reason to refuse transfer.  However, that does not detract from the ability of a State or Territory Court to retain a matter for the special reason that there is a serious doubt as to whether the proceedings are competent, given they seek review of a decision that may not be amenable to judicial review at all, regardless of the jurisdiction.  In my view, the interests of justice require that question to first be determined, so as not to transfer a matter that the Federal Court subsequently determines to be a matter that should never have proceeded in the first place.

58․The preferable course is to give the parties the opportunity to address this above concern.  It has been highlighted in somewhat greater detail than might have been otherwise necessary on the present application for the benefit of the self-represented plaintiff.  If it is established that the decisions are amenable to judicial review, then the cross-vesting of the proceeding can be re-agitated at the appropriate time.   

Orders

59․For these reasons, the orders of the Court are as follows:

(1)The application filed 9 October 2023 is dismissed. 

(2)The proceeding is listed in the Registrar’s civil applications list at 9:45am on 2 February 2023 for the referral and determination of the first defendant’s application filed 5 October 2023 and any order to be made under r 3566 of the Court Procedure Rules 2006 (ACT).

(3)The defendants are to file and serve written submissions in relation to the matters the subject of order 2 on or before 21 December 2023.

(4)The plaintiff is to file and serve written submissions in reply on or before 31 January 2024.

I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate:

Date: 8 December 2023