Glass (a pseudonym) v Chief Examiner
[2015] VSCA 127
•29 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2015 0017 | |
| DAVID GLASS (a pseudonym)[1] | Applicant |
| v | |
| THE CHIEF EXAMINER & ORS | Respondents |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | SANTAMARIA, FERGUSON and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 May 2015 |
| DATE OF JUDGMENT: | 29 May 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 127 |
| JUDGMENT APPEALED FROM: | [2015] VSC 29 (Garde J) |
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APPEAL – JUDICIAL REVIEW – Application for extension of time to commence judicial review proceedings – Special circumstances must be established if time to be extended – Strength of case for judicial review to be taken into account in determining if special circumstances made out – Non-publication direction made under Major Crime (Investigative Powers) Act 2004 – Direction rescinded to enable coercively obtained evidence to be used in prosecution of alleged co-offender – Coercive powers order expired at time of rescission – Whether non-publication direction can be revoked after expiry of coercive powers order – Instrument of delegation “in respect of” coercive powers order – Whether delegate empowered to rescind non-publication direction – Major Crime (Investigative Powers) Act 2004 ss 4, 43 – Supreme Court (General Civil Procedure) Rules 2005 r 56.02 – The Chief Examiner v Mary Brown (a pseudonym) [2013] VSCA 167, AJH v Chief Examiner (2011) A Crim R 370, Balmer and Associates v VLA [2012] VSC 536.
PRACTICE AND PROCEDURE – Appellate courts – Discretion – Point not argued before associate judge nor in appeal before judge in Trial Division – Whether merits of case outweigh need for finality in litigation – Civil Procedure Act 2010 ss 7–9.
PRACTICE AND PROCEDURE – Leave to appeal – Real prospect of success but merits of case weak and point not argued before judge in Trial Division – Discretion exercised to refuse leave – Supreme Court Act 1986 s 14C, Kennedy v Shire of Campaspe [2015] VSCA 47.
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C T Carr | Theo Magazis & Associates |
| For the First Respondent | Mr R M Niall QC with Mr A Imrie | Office of Chief Examiner |
| For the Third Respondent | Ms F L Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
SANTAMARIA JA
FERGUSON JA
McLEISH JA:
TABLE OF CONTENTS
Introduction
The facts
The associate judge’s decision
The Judge’s decision
Ground of appeal
The applicant’s arguments
(a) Are the merits of the applicant’s judicial review grounds very good?
(i) Did the Chief Examiner have power to revoke the Direction?
(ii) Did the examiner have power to revoke the Direction?
(b) Did the associate judge err in her approach?
(c) Should the applicant be permitted to argue a point not argued before the judge?
Other matters
Conclusion
Introduction
The Major Crime (Investigative Powers) Act 2004 (‘the Act’) provides a regime for the use of coercive powers to investigate organised crime. The first step in the legislative scheme is for the Court to make a coercive powers order (‘CPO’) if it is satisfied of certain matters. Once a CPO has been made, witnesses may be compelled to attend an examination before the Chief Examiner appointed under the Act or his[2] delegate. Witnesses do not have the benefit of the right to silence nor the privilege against self-incrimination, which have been abrogated by the Act. Examinations are held in private. Moreover, there is power to restrict the publication of information given by witnesses, and a duty to do so, if the safety or fair trial of a person might[3] otherwise be prejudiced.
[2]The current Chief Examiner is a male and for this reason, we will use the masculine gender when referring to him.
[3]The word ‘might’ was used in the Act at the time relevant to this application. The Act has since been amended. A non-publication direction must be made if the failure to do so would reasonably be expected to prejudice the safety or fair trial of a person: s 43(2).
In the present case, the applicant was compelled by order to give evidence under the Act before an examiner (who was the delegate of the Chief Examiner). The examiner made a direction preventing publication of information about the identity of the applicant and his evidence. Subsequently, the applicant was convicted and sentenced. Following this, the direction was revoked so that the applicant’s evidence could be used in the prosecution of another person.
Almost two years later, the applicant sought judicial review of the decision to revoke the direction. The applicant relied on three grounds of review. For present purposes, only one of them is relevant. In substance, the applicant contends that there was no power to revoke the direction because the CPO had expired.
The application for judicial review of the decision revoking the direction was more than 21 months out of time. The Court has power to grant an extension of time for the bringing of such an application if there are special circumstances. An associate judge refused the extension of time application. A judge sitting in the Practice Court dismissed an appeal from the decision of the associate judge. The applicant now seeks leave to appeal from the judge’s orders. There is only one proposed ground of appeal, namely that the judge erred in not holding that the associate judge had erred by refusing to make a qualitative assessment of the merits of the judicial review proceeding for the purposes of determining whether to extend time.
At the outset, we would observe that it is not surprising that the judge made no such finding of error on the part of the associate judge — it was not a matter that was argued before him.
For the reasons which follow, we would refuse leave to appeal.
The facts
The applicant was charged with trafficking a commercial quantity of methylamphetamine and other offences in April 2009. On 15 July 2010, the Court made a CPO under the Act which authorised the use of coercive powers in respect of his alleged offending. On 20 August 2010, the Chief Examiner delegated his powers in relation to the CPO to an examiner. The examiner issued a summons directed to the applicant. The applicant gave evidence on 7 September and 14 October 2010 in relation to the then pending charges against him and the alleged criminality of others. The examiner made a non-publication direction (‘Direction’) under s 43 of the Act to preserve, as far as possible, the applicant’s fair trial on the outstanding charges. Among other things, this meant that the evidence given by the applicant before the examiner could not be published or communicated to anyone. The CPO expired on 14 July 2011.
On 22 March 2012, the applicant was sentenced for the offences with which he had been charged. Two weeks later, Victoria Police applied for revocation of the Direction. The applicant was given an opportunity to comment on the possible revocation. His solicitor (Mr Cole) submitted to the examiner that the Direction should remain in force to protect the applicant’s safety. At the examiner’s direction, Victoria Police made submissions setting out the grounds for releasing the transcript of the applicant’s evidence. The covering letter accompanying those submissions stated that the applicant’s evidence would be used in a prosecution of his alleged co-offender. On behalf of the applicant, Mr Cole responded to these submissions.
On 1 August 2012, the examiner revoked the Direction. The applicant’s evidence was published to the Office of Public Prosecutions and the solicitors for the alleged co-offender on 27 August 2012. By no later than mid-October 2012, the applicant knew that the Direction had been revoked. At this time, he was placed into protective custody in prison.
While the applicant was still in custody, the Office of Public Prosecutions issued two subpoenas requiring him to appear as a prosecution witness at the trial of his alleged co-offender. The applicant’s version of events only referred to the second subpoena pursuant to which he was brought to court in March 2014. The trial of the applicant’s alleged co-offender was adjourned. The applicant said that this was the first time that he understood how the decision to release his evidence would unfold. On 26 March 2014, with the financial assistance of his partner and brother, he instructed a solicitor, Mr Theo Magazis, in respect of this matter. On 31 March 2014, the applicant was represented by counsel at the trial of his alleged co-offender. The trial was adjourned.
The applicant instructed a different solicitor, Mr Robert Sdraulig, to pursue an appeal against his sentence. The application for leave to appeal was instituted in June 2014 and on 31 July 2014, leave was granted and the appeal was allowed. The applicant was released on parole on 18 August 2014.
The trial of the applicant’s alleged co-offender has not taken place. The next date for mention in that matter is 3 June 2015. The Court was informed that the trial has not proceeded pending the outcome of this proceeding.
The associate judge’s decision
On 11 July 2014, the applicant filed a proceeding seeking judicial review of the decision of the examiner to revoke the Direction. The last day to bring such a proceeding was 30 September 2012, that being 60 days from when the examiner made his determination to revoke the Direction.[4] Accordingly, the applicant’s originating motion seeking judicial review was more than 21 months out of time. The Court has power to extend the time for commencement of judicial review proceedings if the applicant establishes that there are special circumstances.[5]
[4]Supreme Court (General Civil Procedure) Rules 2005 r 56.02(1), (2).
[5]Ibid r 56.02(3).
The application for an extension of time was heard by an associate judge. The applicant’s main argument was that the decision was infected by jurisdictional error, namely that the examiner did not possess the power to revoke the Direction in the circumstances of the case because the CPO had expired. The associate judge refused the application for an extension of time.[6]
[6]David Glass (a pseudonym) v Chief Examiner & Ors [2014] VSC 507 (‘AsJ Reasons’).
The associate judge dealt first with the applicant’s delay in seeking to make the application for judicial review. She recorded that his explanation had two limbs – first that he did not understand the consequences of the release of his evidence until March 2014 and secondly, that he said that he was not in a financial position to challenge the decision until that time. Her Honour rejected both explanations and said:
In my view, the [applicant’s] explanation fails because of its generality and its omissions, made evident on comparison to the facts. First, the plaintiff entirely fails to refer to Mr Cole. In particular, he does not say whether or not he sought Mr Cole's advice when the decision was made to rescind, or, if not, why not. The [applicant] also entirely fails to refer to the first subpoena, and his subsequent instructions to, and private funding of, another lawyer, Mr Sdraulig, to act for him in respect of the confiscation and appeal against sentence proceedings. Finally, he gives no explanation whatsoever of the further delay incurred from March 2014 (when he says he appreciated the consequences of the rescission and Mr Magazis confirms he was instructed) to July 2014 when this proceeding was filed, itself a period in excess of the usual time period of two months for making application for judicial review. That alone would be sufficient to defeat his application for extension of time.[7]
[7]Ibid [49].
The associate judge then went on to set out in more detail why she had reached this conclusion. This section of her reasons ended with a statement that the applicant’s delay in bringing the judicial review proceedings was not adequately explained and that this ‘is a significant factor against the grant of leave to file out of time.’[8]
[8]Ibid [73].
The associate judge then turned to consider the applicant’s prospects of success should he be granted leave to seek judicial review out of time. She said:
I will approach this question on the basis that all the plaintiff needs to show is that his substantive case has merit in the sense that it is arguable. The converse to being “arguable” is that it has no real prospect of success, which is what the defendants contend. I do not consider that the authorities require the Court to seek to evaluate, in an interlocutory application and so without the benefit of full argument, the degree of merit to the substantive case; merely whether there is some. I do not take the parties as inviting me to do otherwise.[9]
[9]Ibid [75].
The associate judge recorded that there were three main arguments identified in the initiating process for judicial review. Her Honour held that each was arguable.[10] She concluded that this ‘is a factor tending towards the grant of an extension of time to seek judicial review.’[11]
[10]Ibid [79], [84], [85].
[11]Ibid [86].
Next her Honour considered whether there was any prejudice to the respondents if the extension was granted. She decided that there was and said that this was a significant factor against the grant of an extension of time to allow the judicial review proceeding to be brought.[12]
[12]Ibid [90].
After this, the associate judge discussed and accepted the contention of the applicant that the issues he seeks to litigate are of great public importance. She observed that this is a factor that supports the grant of an extension of time.[13]
[13]Ibid [96].
The next matter dealt with by the associate judge was the respondents’ submission that there would be no relevant injustice or prejudice to the applicant if an extension of time is refused. In her view, the applicant could seek protection from the County Court (the trial court for the applicant’s alleged co-offender) in relation to the publication of his evidence. Consequently, she did not consider that ‘the possibility of further prejudice to the [applicant] arising from further publication to be a factor supporting the grant of an extension of time, because protection against that risk is otherwise available.’[14] The associate judge observed that there was no basis upon which to take the applicant’s safety into account because he had failed to file evidence that there was any risk in that regard.[15] The associate judge found it unnecessary to consider the respondents’ submissions that the judicial review proceeding lacks utility because there are alternative means available to the prosecution to obtain his evidence in the trial of his alleged co-offender.[16]
[14]Ibid [101].
[15]Ibid [105].
[16]Ibid [109].
The associate judge then set out her conclusions as follows:
I conclude that the [applicant] has failed to show special circumstances by reason of which the time for the making of his application for judicial review should be extended. In particular, he has not given an adequate explanation for what is a very long period of delay. I accept that at all relevant time he was in prison, and have taken into account that from October 2012 he was in protection, and so in more onerous conditions. However, he has not given a satisfactory account of why he did not seek legal assistance earlier given that he was represented at the time the decision was made, learnt of it shortly thereafter, and was made aware from September 2012 that he would be called in the trial of [his alleged co-offender]. Further, he was able to directly instruct another lawyer in other proceedings, despite being in protection, from at least June 2013, and privately fund that lawyer. Remarkably, the [applicant] himself did not refer to these matters and it was for the [respondents] to expose them.
I accept that the issues the [applicant] seeks to raise in the substantive proceeding are of public importance, and that he has arguable matters to put. However, he has not shown any prejudice to him if the decision is not reviewed that has not already occurred, or is not capable of other remedy. By contrast, there would be further prejudice to the public interest in the prosecution of [his alleged co-offender] if the extension is granted, and so further delay to that trial occasioned.
Having regard to all these matters, I will refuse the application for extension of time.[17]
[17]Ibid [110]–[112].
The Judge’s decision
The applicant appealed to a judge sitting in the Practice Court. There were multiple grounds of appeal which were grouped into three categories:
(1) the associate judge turned the explanation of the delay by the applicant into a condition precedent to the exercise of discretion in favour of the applicant;
(2) the associate judge erred when she found that any prejudice to the applicant would be capable of cure by other remedy; and
(3) the associate judge erred in concluding that further publication of the applicant’s evidence would not prejudice him, particularly in the light of the finding that one of the issues that would be engaged in the substantive hearing was the encroachment upon the common law right of silence.
In respect of the first category, the judge held that it was plain from a reading of the associate judge’s decision as a whole that she did not treat the explanation for delay as a condition precedent to a finding of special circumstances or to the exercise of her discretion.’[18] He observed that the associate judge noted that there were a number of matters (including delay) that were relevant to the application for an extension of time and that she analysed each factor before weighing them up.[19] The judge accepted that the associate judge had considered delay a significant factor but she did not treat it as a threshold or mandatory requirement or akin to a condition precedent.[20] Consequently, his Honour held that the first category of grounds of appeal failed.
[18]Glass v Chief Examiner & Ors [2015] VSC 29 (‘Judge’s Reasons’) [11].
[19]Ibid [12].
[20]Ibid [16].
In respect of the second category of grounds of appeal, the judge held that as the associate judge had found there was no prejudice to the applicant, her consideration that any prejudice to him would be capable of cure by an application to the criminal trial judge was not a vitiating error as it was not ultimately taken into account or given any weight by her.[21]
[21]Ibid [26].
As to the last ground of appeal (right to silence), the judge held that the associate judge fully appreciated and gave significant weight to the civil rights of the applicant and as to the right to silence.
In dismissing the appeal, the judge concluded:
I am not satisfied that there is any error such as would enliven the discretion of this court under Rule 56.02(3). The weight to be given to relevant considerations taken into account in making a discretionary decision is quintessentially for the decision maker. Individual perspectives as to the weight that should be given by a decision maker to particular relevant factors may vary but it is not for this court, on appeal from an Associate Justice, to interfere with the weight given to particular relevant factors in the absence of demonstrated error of fact, law or as to the exercise of the discretion.
In the present case, there is no legal basis on which the exercise of the discretion can be revisited. [22]
[22]Ibid [36]–[37].
Ground of appeal
The applicant has appealed from his Honour’s orders on the basis that:
(a) the learned associate judge refused to make a qualitative assessment of the merits of the judicial review proceeding for the purposes of determining whether to extend time;
(b) instead of a qualitative assessment of the merits, the learned associate judge adopted a binary approach of determining whether the judicial review proceeding was either arguable or had no real prospect of success;
(c) the learned judge in the Trial Division erred in failing to find that such an approach was erroneous.
Therefore, the sole ground of appeal concerns the approach that the associate judge took to assessing the substantive merits of the case for judicial review. It is unsurprising that the judge did not find that the associate judge’s approach was erroneous. As can be seen from what is set out in the preceding section, and as we noted at the commencement of these reasons, this argument was not raised before him. This is a matter to which we will return later in these reasons.
The applicant’s arguments
The applicant approached the application for leave to appeal and the appeal if leave were to be granted on the basis that there were three hurdles that he would overcome. First, he submitted that there are very good grounds for seeking a review of the decision of the examiner. Secondly, the associate judge erred in her approach to determining whether time to bring the application for review should be extended because she did not make a qualitative assessment of the merits of the judicial review proceeding. Finally, he would overcome the fact that what he now seeks to argue was not put before the judge on the appeal from the associate judge’s orders.
We will deal with each of these matters in turn.
(a) Are the merits of the applicant’s judicial review grounds very good?
In essence, the applicant contends that he has very strong grounds upon which to seek review of the examiner’s decision to revoke the Direction. We do not agree. In our view, the applicant’s proposed case is at best arguable, if not weak.
For the purposes of the leave application and appeal, the applicant relied upon only one of his three proposed grounds of review (having two aspects); that is, whether:
(a)because the CPO had expired, the Chief Examiner had no power to revoke the Direction; and
(b)the examiner had no power to revoke the Direction because the instrument of delegation did not grant power to do so.
(i) Did the Chief Examiner have power to revoke the Direction?
When the Direction was first made and later revoked, s 43(1)-(4) of the Act read:
(1) The Chief Examiner may direct that—
(a) any evidence given before the Chief Examiner; or
(b)the contents of any document, or a description of any thing, produced to the Chief Examiner; or
(c)any information that might enable a person who has given evidence before the Chief Examiner to be identified; or
(d)the fact that any person has given or may be about to give evidence at an examination—
must not be published or communicated, or must not be published or communicated except in such manner, and to such persons, as the Chief Examiner specifies.
(2)The Chief Examiner must give a direction under subsection (1) if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence.
(3)A person who makes a publication or communication in contravention of a direction given under subsection (1) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).
(4) If—
(a) a person has been charged with an offence before a court; and
(b)the court considers that it may be desirable in the interests of justice that particular evidence given before the Chief Examiner, being evidence in relation to which the Chief Examiner has given a direction under subsection (1), be made available to the person or to a legal practitioner representing the person—
the court may give to the Chief Examiner or the Chief Commissioner a certificate to that effect and, if the court does so, the Chief Examiner or the Chief Commissioner (as the case requires) must make the evidence available to the court.[23]
[23]Section 43 was amended in 2014 and no longer appears in this form.
It is beyond doubt that a direction made under s 43(1) may be revoked.[24] There are some limits though upon when that can be done. In AJH v Chief Examiner[25] Beach J observed that when the criteria in s 43(2) exist the direction may not be revoked, albeit that subsection (4) may provide a means for disclosure in those circumstances.[26]
[24]The Chief Examiner v Mary Brown (a pseudonym) [2013] VSCA 167; James v The Office of Chief Examiner and the Director of Public Prosecutions [2006] VSC 384; E v Chief Examiner [2010] VSC 353; AJH v Chief Examiner (2011) A Crim R 370.
[25](2011) A Crim R 370.
[26]Ibid [20].
Section 43 was also considered by this Court in The Chief Examiner v Mary Brown (a pseudonym).[27]The Chief Examiner had made a non-publication order which included exceptions permitting disclosure by Victoria Police and the Office of Public Prosecutions for the purposes of a prosecution of an offence. The Chief Examiner subsequently refused a request by the respondent for a variation of the non-publication order to remove those exceptions. It is not clear whether at the time that the variation was sought, a CPO was still in operation. On an application for judicial review, a judge declared that the non-publication order was invalid in respect of that part of it permitting the two exceptions. The Chief Examiner appealed. In construing the legislation, Tate JA (with whom Harper JA and Garde AJA agreed) referred to the principle of legality saying:
It is a fundamental principle of the common law that Acts which derogate from fundamental common law rights should be construed narrowly. The circumstances in which a non-publication order may be made are those in which the right to silence has been abrogated, as has the privilege against self-incrimination. A power to create exceptions to a non-publication order is in effect a power to authorise the disclosure of information obtained under compulsion in a context in which the protection afforded by the common law has been withdrawn. Recognition of that context supports the view that a restrictive interpretation of the exception-making power under s 43(1) ought be adopted.[28]
[27][2013] VSCA 167.
[28]Ibid [92] [footnote omitted].
Tate JA held that the exceptions to the direction to permit publication for the purpose of prosecution were unlawful. This was because the exceptions were unauthorised by the Act and because they were in direct contravention of the mandatory requirement under s 43(2) to give a direction where the failure to do so might prejudice the safety or reputation or fair trial of a person.[29] In arriving at that conclusion, her Honour described s 43(2) as both mandatory and ambulatory and observed that a non-publication order ‘must continue in force and effect, relevantly, for whatever time the failure of an order to be in force might prejudice the safety or reputation of a person.’[30]
[29]Ibid [90].
[30]Ibid [85].
The first part of the applicant’s substantive case for judicial review may be shortly stated. It is that the power to make a s 43(1) direction is conditioned upon the existence of a CPO at the time the direction is made; the power to revoke a direction is subject to that same limitation; here, the CPO had expired at the time the Direction was revoked with the consequence that the examiner lacked the power to do that.
The applicant’s case was developed in the following way. He submitted that s 4 of the Act provides the authorisation for the use of the Chief Examiner’s powers (including the power to make a direction under s 43(1)). He submitted that s 4 is a jurisdictional pre-requisite setting the field of operation for the Chief Examiner’s powers. That section provides:
A coercive powers order authorises the use in accordance with this Act of powers provided by this Act for the purpose of investigating the organised crime offence in respect of which the order is made.
The applicant contended that the corollary is that if there is no CPO in existence, the Chief Examiner has no powers to exercise. He submitted that the scheme of the Act supports his argument. The powers to issue a witness summons or to bring a witness who is in custody to court are expressly subject to a CPO being in force.[31] There is no such statement in respect of other powers exercisable by the Chief Examiner under the Act. The applicant contended that s 4 operates to impose the same limitation in respect of those powers because otherwise the Chief Examiner could exercise all of his powers after the expiry of a CPO. He gave as an example the situation where an examination is commenced, but not completed, and is adjourned to a date after the CPO has expired. In this regard, s 29(2) of the Act provides (so far as relevant) that the Chief Examiner may continue to conduct an examination of a person despite the fact that there are other proceedings related to the subject matter of the examination. The applicant argued that it would be manifestly inconsistent with the scheme of the Act to continue an adjourned examination in circumstances where the CPO has expired.
[31]The Act ss 14(1), 15(1) and 18(1).
The applicant relied upon s 35A as a second example to show that s 4 imposes a limitation on the exercise of the Chief Examiner’s powers under the Act. One of the things that section permits is for the Chief Examiner to require a person who is present at an examination to give evidence, even if they are not the subject of a witness summons. Again, the applicant submitted that it would be inconsistent with the scheme of supervision by the Court established by the Act for the Chief Examiner to be able to examine a person about matters the subject of a CPO after it had expired.
The applicant submitted that, consistently with the principle of legality, the construction of s 43 for which he contended placed fewer restrictions upon common law rights and for this reason too was to be preferred. He also submitted that the principle had much to say about the scope to be given to s 4.
Moreover, so the applicant argued, the obligation imposed by s 43(2) sets a low threshold for the making of a non-publication direction because all that was required was that it ‘might’ prejudice the safety, reputation or fair trial of a person. Hence, in his submission there is only a remote possibility that the need for the making of a non-publication direction would not be detected during the course of a person’s examination. It follows, he says, that the risk that such a necessary direction would not be made during the life of a CPO is also remote and does not give rise to a valid basis for thinking that non-publication orders may need to be made or revoked when there is no CPO in force.
The applicant noted that the scheme for obtaining evidence and documents established by the Act is one covered in secrecy. Among other things, the Act provides for an application for a CPO to be heard in closed court,[32] for the non-publication of information derived from or about the obtaining of a CPO,[33] for examinations to be held in private[34] and for information obtained through the process to be kept secret indefinitely by the Chief Examiner and police officers.[35] Accordingly, the applicant submitted that the fact that it may not be necessary for a non-publication direction to remain in place because the criteria in s 43(2) no longer existed does not make the continuation of the direction absurd.
[32]Ibid s 5(8).
[33]Ibid s 7(1).
[34]Ibid s 35(1).
[35]Ibid s 68.
The next step in the applicant’s argument involves consideration of the source of the power to revoke a non-publication direction that has been made under s 43. The applicant submitted that the source of power is s 41A of the Interpretation of Legislation Act 1984, which provides that:
If an Act or subordinate instrument confers power to make, issue or grant an instrument (not being a subordinate instrument) the power shall, unless the contrary intention appears, be construed as including a power, exercisable in the same manner and subject to the same conditions or limitations (if any), to repeal, revoke, rescind, amend, alter or vary an instrument made in the exercise of that power.
The applicant submitted that it follows that the power to revoke a non-publication direction is subject to the same conditions or limitations as the power to make a non-publication direction. Therefore, he contended that as the power to make a non-publication direction is contingent upon a CPO being extant at the time of the power being exercised, so too is the power to revoke such a direction. As noted above, the CPO in this case expired before the Direction was revoked. Therefore, the applicant contended that there was no jurisdiction to revoke the Direction. So, he says, after the CPO expires, a non-publication direction remains in force, and may not be revoked, that position being consistent with the privacy with which the statute surrounds examinations.
So far as the authorities are concerned, the applicant submitted that in Mary Brown the question of the need for an extant CPO to be in place for variation or revocation of a non-publication direction was not argued. Indeed, it was not relevant to the question determined by the Court which held that at the time the original non-publication order was made it was lawful. The applicant submitted that the reference by Tate JA to s 43(2) as mandatory and ambulatory must be understood as confined to the time during which there is a proper basis for the power to make a non-publication direction; that is, only throughout the period when a CPO operates. The applicant also observed that the reported decisions do not make it clear whether there was an extant CPO at the time that non-publication directions have been rescinded and there was no evidence before the Court as to the currency of any CPO in those cases.[36] In any event, the point now sought to be argued by the applicant was not agitated in those cases.
[36]REG v Chief Examiner [2011] VSC 532; AJH v Chief Examiner [2011] VSC 499; James v The Office of the Chief Examiner [2006] VSC 384.
We do not accept that s 43 is predicated upon a CPO operating at the time a non-publication direction is made.
In the first place, s 4 is limited in its operation to powers provided ‘for the purpose of investigating the organised crime offence.’ The power to make a non-publication direction is not such a power. Rather, it is a power that is exercised in certain circumstances to protect the product of a compulsory examination. Consequently, the language of s 4 does not operate to limit when and in what circumstances a non-publication direction may be made (or revoked).
Turning to the text of s 43 itself, it does not specify that there must be a CPO in force before a non-publication direction may be made. Of course, the proper interpretation of the section also requires consideration of how the legislative scheme operates. For the purposes of this appeal, the scheme of the Act provides for the following steps:
(a) the making of a CPO (ss 5, 6, 8, 9);
(b) the issue of a summons to a witness and other means by which witnesses may be brought to examinations (ss 14, 15, 18);
(c) the examination of witnesses (ss 29, 35A);
(d) the making of ancillary directions to ensure that the process and the information obtained at an examination are and remain confidential with limited exceptions (ss 20, 43, 67).
It is only in respect of the second step that the legislature has seen fit to impose the pre-requisite of an extant CPO to the exercise of power to secure the attendance of a witness at an examination by providing in ss 14(1), 15(1) and 18(1):
This section applies if a coercive powers order is in force in respect of an organised crime offence.
In our opinion this strongly suggests that such a prerequisite for the exercise of ancillary powers (including the making of s 43 non-publication directions) is not required and was not intended by the legislature. Had it been Parliament’s intention to impose such a limitation, it would have been a simple matter to replicate the same statement in s 43. As we have noted, s 43 is silent in this regard and for the reasons that we have given, s 4 does not expressly introduce such a restriction.
By contrast, the legislature ensured that the requirement for a CPO to be in force if a witness summons is to be issued sits harmoniously with other provisions in the Act which provide for the revocation of a witness summons in circumstances where the CPO itself is revoked.[37] The approach adopted in the legislation makes sense given the intrusive nature of examinations and their effect on common law principles, such as the abrogation of the privilege against self-incrimination.
[37]The Act ss 12C, 13.
However, when one comes to consider the purpose of a confidentiality direction — that is to protect the safety, reputation[38] or fair trial of a witness — the same rationale for a prerequisite that there be a CPO in force is not found. Taking safety as an example, we do not accept the applicant’s argument that there would never be a need to make a s 43(2) confidentiality direction after a CPO had expired. Whilst we do accept that in many cases the likelihood of risk to the safety of a witness may be apparent from the examination, it is not a remote possibility that there may be occasions where that is not the case. Yet the applicant’s interpretation would see such a person go unprotected because the CPO had expired. That cannot be so.
[38]Section 43 no longer includes reference to the reputation of a person although it did at the time relevant to this appeal.
Conversely, where the safety of a witness is no longer at risk, the justification for keeping the information and evidence provided by that person confidential evaporates. In our opinion, the confidentiality provision serves no purpose in that situation. Unlike the other provisions of the legislation which automatically impose secrecy obligations,[39] before the secrecy obligation imposed by s 43 bites, the Chief Examiner has to take the step of making a non-publication direction. Absent that direction, secrecy does not attach to the evidence. Consequently, the fact that secrecy is a central theme of much of the legislation does not support the maintenance of secrecy brought about by a s 43 direction when the s 43(2) criteria are no longer met.
[39]See [44] above.
The legislature also explicitly limited the duration of a CPO to 12 months[40] (albeit that that time may be extended.[41]) It did not do this in respect of non-publication directions. Again, this suggests to us that the proper interpretation of ss 4 and 43(2) does not require a CPO to be in force at the time that the non-publication direction is made or revoked.
[40]The Act s 9(2)(f).
[41]Ibid s 10.
In respect of the applicant’s submission concerning s 35A (which requires a person at an examination to give evidence), it seems to us that in almost all cases the answer will be found in ss 12C and 13. Those sections provide for the revocation of witness summonses when a CPO has been revoked. Consequently, in that situation, s 35A often will have no work to do because there would be no examination being conducted at which a person in attendance would be required to give evidence. Even if there might be circumstances where that is not so, whatever view one takes of s 35A and the continuation of an adjourned examination pursuant to s 29(2), those considerations do not bear upon the proper construction of the ancillary power provided by s 43. Sections 35A and 29(2) are concerned with the examination itself; they are not concerned with the product of the examination which s 43(2) seeks to protect. Consequently, the interpretation of ss 35A and 29(2) are better left to a case where the facts require a determination of their proper construction.
The principle of legality does not point to a contrary interpretation. We accept that one must consider that the protection given by s 43 is a protection given in circumstances where the common law privilege against self-incrimination and the right to silence have been removed. However, as Gageler and Keane JJ said in Lee v New South Wales Crime Commission:[42]
Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that ‘[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve ‘[43]
[42](2013) 251 CLR 196.
[43]Ibid [313]–[314] (footnote omitted), [126] (Crennan J agreeing).
Here, one must look to what is protected by a non-publication direction and that is a person’s safety and right to a fair trial. If those things are not in danger, then the need for protection dissipates and there is no encroachment on the person’s common law rights so far as those matters are concerned.
It follows that, the primary foundation for the applicant’s contentions having failed, we do not accept that the power to revoke a direction expires at the same time as the relevant CPO. Indeed, that would not be consistent with the object of s 43 which exists to protect personal safety and the right to a fair trial. If those preconditions to the making of a non-publication direction are not continuing, then there can be no rational nor policy basis for the direction to continue. As Tate JA in Mary Brown and Beach J in AJH v Chief Examiner observed, a confidentiality direction must remain in place when the criteria in s 43(2) exist. So too, the converse must be true that if those criteria no longer prevail, the direction may be revoked.
(ii) Did the examiner have power to revoke the Direction?
The second basis upon which the applicant relied concerns the power of the examiner to revoke the Direction. He argued that the instrument of delegation did not grant a revocation power and therefore the examiner lacked the power to do so.
Section 65(4) enables the Chief Examiner to delegate his power to revoke a direction. He did so in this case delegating to the examiner:
Any and all functions, duties and powers given to me under Parts 2, 4 and 5 of the Act … to be exercised:
in respect of coercive powers order CPOA091 0020 ... ; and
in respect of the following persons:
[the applicant] ...
The applicant submitted that this makes it clear that the delegation was in respect of the CPO but by the time the examiner came to exercise the delegated power, that order had expired. So he says, there were no longer any powers to exercise in respect of the CPO with the authority given by it ceasing and the powers to be exercised in relation to it being exhausted. Consequently, he submitted, even if the Chief Examiner could still revoke the Direction, the examiner could not.
We do not accept the applicant’s submissions. The delegation used the words ‘in respect of’ the CPO. Those words have a very wide meaning.[44] In our opinion, properly construed, the revocation of the Direction was ‘in respect of’ the CPO that had existed albeit that at the time of revocation it had expired. There is nothing in the legislation, nor in the terms of the instrument of delegation itself that would require the CPO to be current. Rather, the phrase ‘in respect of’ is a descriptive term linking the delegation to a particular set of circumstances (that is, those initially created by the CPO) with the instrument of delegation going on to limit further the exercise of powers by the examiner so that he could only do so in respect of named persons (who included the applicant).
[44]Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45, 47.
The alternative submission made by the applicant rested on s 43 being, as he described it, in a ‘silo.’ As we understood the argument, he contended that if (contrary to his primary argument) the powers given by s 43 did not depend upon the existence of a current CPO, then as a matter of construction of the instrument of delegation, the power to make or revoke a direction under s 43 was not bestowed on the examiner. In his submission, this was so because the wording of the delegation was limited to functions, duties and powers ‘in respect of coercive powers order CPOA091 0020’ only. That is, all that was delegated were powers directly emanating from the particular CPO that was identified in the instrument of delegation. So the argument ran, the power to make a non-publication direction was not such a power.
In our opinion, this submission must be rejected. As we have already said, the words ‘in respect of’ have a broad meaning. The delegation is drafted in the descriptive manner in which it is to give some nexus to the circumstances in which the powers may be exercised. That is, insofar as relevant here, the delegated powers can only be exercised provided there is some connection between the CPO (whenever it operated), the applicant and the powers to be exercised.
It follows from what we have said that in our view, the merits of the applicant’s case for judicial review are weak. Consequently, as the applicant accepted, he must fail in his application for an extension of time and even if leave to appeal were granted, he would fail in the appeal. Nevertheless, we will deal briefly with the other matters that he sought to establish to obtain leave to appeal.
(b) Did the associate judge err in her approach?
To recap, the applicant contended that the associate judge had erred in her approach to whether there were special circumstances warranting extending time for commencing the judicial review proceeding. He submitted that the error that she made was that she refused to make a qualitative assessment of the merits of the judicial review. Instead, she adopted a binary approach looking only to ascertain whether the case was arguable or had no real prospect of success. In essence, his contention was that in weighing up whether special circumstances had been established, the associate judge took account of a different factor (an arguable case) to the factor that she should have taken into account (a very good case). In this way he submitted that it was not just a discretionary matter of weight to be given to the strength of the case but rather a substantive component to be factored in to the task of assessing whether special circumstances had been made out.
In contrast, the respondent submitted that the issue was one of weight; that it is not essential to consider the substantive merits in each case; that the applicant’s case being weak, the associate judge weighed the merits in his favour at their highest.
In the earlier decision of Balmer and Associates v VLA[45] the associate judge reviewed the authorities and some academic writing dealing with the principles for granting an extension of time to bring judicial review proceedings.[46] She concluded that one of the factors to be taken into account was whether there is an arguable case for error.[47] As we have set out above, in the present case, the associate judge took the same approach and considered whether the ‘substantive case has merit in the sense that it is arguable’.[48] Her Honour went on to contrast that with a case that has no real prospect of success. Hence the binary approach about which the applicant complains.
[45][2012] VSC 536.
[46]Ibid [28]–[38].
[47]Ibid [36].
[48]AsJ Reasons [75].
The circumstances of each case dictate the factors to be taken into account in determining whether or not the applicant for an extension of time has established that there are special circumstances justifying the extension.[49] One of the factors will ordinarily be the merits of the case. If the case is unmeritorious, then it would be futile to grant an extension. The stronger the case, the more weight that might be accorded to that factor. Whilst it is not necessary nor desirable to examine the merits in too much detail, the strength of the case should be sufficiently apparent from the review undertaken to enable the judge or associate judge to give the appropriate weight to it. In some situations all that might be said is that the case is arguable. In other cases, it may be more than arguable. Even if the case is a strong one, other factors may outweigh the merits such that overall it cannot be said that there are special circumstances justifying the extension.
[49]Mann v Medical Practitioners Board of Victoria [2004] VSCA 148.
Here, as we have observed, the applicant does not have a good case and the associate judge having assessed it as arguable, the strength of the applicant’s case was weighed in his favour.
We would note that it is not surprising that the associate judge adopted the approach that she did. Before the associate judge, counsel for the applicant (who did not appear on the appeal to this Court) said:
Just to define first how we think about special circumstances, what test is to be applied, I submit to Your Honour that special circumstances are not limited to the reasons for the failure to bring the application within time. That of course is a relevant, but in my submission not a determinative matter for Your Honour to consider. The other matters I will be asking Your Honour to turn your mind to are in addition to the reasons for filing out of time the prospect of success, or potential prospects of success of the substantive application, which I intend to adumbrate very lightly, but just so there is some force to the proposition that this is a real question, not something fanciful or brought flippantly or lightly.
Counsel then addressed the issue of delay. Following this, counsel turned to address other matters she submitted were relevant to whether special circumstances had been established. The following exchange ensued:
Counsel for the applicant: Firstly, very briefly, Your Honour, I will adumbrate — hopefully just sketch the basic arguments that will be put should the application to extend time proceed.
Her Honour: Yes. In relation to that, I could not be, without a referral from a judge, the ultimate decision maker, and given that I would feel some unease about expressing a view as to the merits of the application, is it conceded by the [respondents] that it’s not without merit, or do the [respondents] want to put submissions on the merit of the application?
Counsel for the first respondent: We do, Your Honour.
Her Honour: All right. Then I will need to hear what the plaintiff has to say.
Counsel for the applicant: We understand the final determination, Your Honour.
Her Honour: Yes.
Counsel for the applicant: But there is some force in the arguments, I will submit, and that is a very significant matter going to this application.
In light of how the matter was argued, it is not surprising that, as noted above, the associate judge stated in her written reasons that her approach in respect of the prospects of success factor was to consider whether the applicant’s substantive case had merit in the sense that it was arguable. Counsel’s submission that there ‘is some force in the arguments’ must be understood in light of what she said earlier. That is that the ‘force’ in the arguments was one that showed that they were real as opposed to fanciful.
That this was the approach that the applicant expected the associate judge to take is made clear from the transcript of the appeal to the judge. Indeed, on that occasion in supporting the approach taken by the associate judge, counsel then appearing for the applicant said:
In my submission once the grounds are arguable — that’s what the Associate Justice found, the grounds are arguable. In terms of the test for Her Honour to apply and Your Honour to apply if we get there, once that is established, and it was proper and prudent for Her Honour not to go further than to simply check the boxes if you like: arguable, yes or no? Arguable in each case she found. That’s the end of the work in my submission for the question on merit. Those questions are arguable. Some time is spent by the first respondent in their submissions talking about whether they’re winners or how strong they are. Once the grounds are arguable then it becomes a matter for a full hearing in my submission.
As we have said, consideration of the strength of the merits of the substantive case for judicial review may well bear upon how much weight should be given to it as a factor. Consequently, in our opinion it may not always be sufficient to consider whether the case is merely arguable or on the other hand, has no real prospect of success. We would add that the fact that an associate judge may not have power to hear and determine the ultimate application for judicial review (without an order made by a judge referring the substantive trial to an associate judge) does not mean that associate judges cannot and should not make an assessment of the prospects of success. In doing so, they are not determining the ultimate matter. Rather, they are simply making an assessment of the prospects of success for the purposes of the application before them for an extension of time. Whilst some care may need to be taken in analysing and describing the strength of the merits, it is nevertheless a task that more often than not will be necessary and should not be shied away from by judges and associate judges.
(c) Should the applicant be permitted to argue a point not argued before the judge?
Ordinarily litigants are bound by the way that they conduct their cases at first instance and it is not open to a party who has elected not to pursue a particular course at trial to argue on appeal points not taken originally.[50] It matters not whether the failure to run an argument was deliberate or due to inadvertence.[51] The principle is most strictly applied where a party seeks to raise a new point that could possibly have been met by calling evidence below.[52] If the facts are not in dispute, or if the new argument concerns a question of law or construction of a document alone, then it is still a discretionary matter for the Court as to whether to entertain the argument on appeal or not.[53] Relevant to the exercise of that discretion are expediency and the interests of justice.[54] With the introduction of the Civil Procedure Act 2010, it will also be necessary for the Court to consider the effect that permitting the new argument to be run will have on the just, efficient, timely and cost-effective resolution of the real issues in dispute between the parties.[55] Other matters may also be relevant.
[50]Coulton v Holcombe (1986) 162 CLR 1; Elliott v Australian Securities and Investments Commission & Anor (2004) 10 VR 369, 391.
[51]Metwally v University of Wollongong (1985) 60 ALR 68, 71 cited with approval in Coulton v Holcombe (1986) 162 CLR 1, 8.
[52]Water Board v Moustakas (1988) 180 CLR 491, 497; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 461.
[53]Water Board v Moustakas (1988) 180 CLR 491, 497.
[54]Ibid.
[55]Civil Procedure Act 2010 ss 7–9.
As we have remarked above, the error asserted by the applicant was not one that was argued before the associate judge nor in the appeal before the judge. Indeed it was quite the reverse. The applicant submitted that the matters which are often taken into account in refusing to permit a party to rely upon a ground not argued previously do not apply in the present case. He noted that this is an appeal from an appeal rather than an appeal from a trial. Consequently, it is not necessary here to consider whether additional evidence would have been led as a result of the new argument. He submitted that the only relevant consideration here is the need for finality in litigation. However, he contended that that consideration is outweighed by the merits of his case. As we have noted above, we do not accept that the merits are strong.
As matters transpired, the new issue was fully argued on the appeal because that was the most efficient manner of proceeding. In that sense, the question of whether leave to argue the point should be granted is somewhat arid.
Nevertheless, it seems to us that the failure to take the point below is a matter that in this case is relevant to the question of whether leave to appeal should be granted. The legislative provision specifies that leave may be granted only where the appeal has a real prospect of success.[56] Whilst it could be said that the applicant’s case on appeal had a real prospect of success (in the sense that it was not fanciful), as this Court observed in Kennedy v Shire of Campaspe,[57] the Court retains a discretion as to whether leave should be granted. In the circumstances of this case, taking into account the weakness of the merits of the underlying substantive case and the failure to take the point before both the associate judge and the judge, we would exercise the discretion and refuse leave to appeal. In any event, if leave were to be granted, we would dismiss the appeal for the reasons that we have given above.
[56]Supreme Court Act 1986 s 14C.
[57][2015] VSCA 47.
Other matters
Given the conclusions which we have reached, it is not necessary to consider how the Court might re-exercise the discretion to grant an extension of time had there been error established. Suffice to say, that had that task been required, we would have exercised the discretion to refuse an extension of time. Putting the applicant’s arguments at their highest (and without determining them) if there are public interest considerations and if there is some utility in the proceeding continuing without any prejudice to the respondents, those matters are not sufficient to outweigh the unexplained substantial delay of the applicant, the fact that there is no evidence (other than an assertion as at 1 May 2012 that has not been substantiated nor updated) that the applicant is exposed to a safety risk and the weakness of the substantive merits of the review.
Conclusion
The substantive merits of the applicant’s case for judicial review are at best arguable if not weak. That being so, he has not made out the principal reason why he contends that he should be granted an extension of time in which to seek judicial review of the examiner’s decision to revoke the non-publication direction. The grant of an extension of time would therefore be futile.
Moreover, the applicant sought to argue as the only proposed ground of appeal that the principles to be applied in determining whether an extension of time should be granted are different to those which he urged both the associate judge and the judge to apply.
In all the circumstances, we would refuse leave to appeal. Had leave been granted, we would have dismissed the appeal.
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