the Chief Justice asked me about three references
in volume I of the white book at which the magistrate
appears to have referred to the trial rather than

the committal. The first of those is at page 152
and we make two submissions about that passage.
The first and most important is that this is not
part of his reasons for the order which he made.
This was on the previous occasion where he was
delivering judgment and he started delivering
judgment about the defamation count against Mr Grassby
having dealt with every other count against every
other person and determined that there was no matter
on which anyone else should be committed for anything

else. Then at line 12,he says:
I'll just come back to the matter now concerning
Mr Grassby and I've purposefully not gone any
further in that matter because subject to what counsel
wish to say about the matter, I have thought of
granting a permanent stay of the proceedings.
The reasons that I have thought of that -

and he then goes on with the rest of 152. These
are not his reasons for his ultimate decision, they
are the reasons why he thought of the matter and

proposes to invite counsel to make submissions
to him. Those reasons are, first, that it was clear
in 1980 that the charge could have been brought
then if it was going to brought and he says additionally

he was sued and there was an apology. But at line 35,
he said:
I've had certain rema~ks to say about the
evidence of Mr Smith and the attitude of the
National Crime Authority, having regard to
those circumstances it would seem to me that it
would be an abuse of process to continue these
proceedings given the fact that if a trial

doesn't get on for another say two years,
some ten years will have passed -

apology has been accepted, considerable expense.

(Continued on page 35)

C2T2/2/MB	34	12/4/89
Grassby

MR BENNETT (continuing): And then, at line 46, he says:

The resultant outcome of which I would
have thought in the circumstances hardly
likely to result in imprisonment, perhaps
at worst might result in a bond of some
description or a fine, or perhaps even a conditional discharge atthe discretion -
He then refers to another matter, to a no bill in

the WATERHOUSE case. He says:
Taking all those matters into account, it

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 Grassby v The Queen

Details

AGLC: Grassby v The Queen [1989] HCATrans 80
Case: [1989] HCATrans 80
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia concerning an application for special leave to appeal. The applicant, Mr Grassby, sought to challenge a decision made by a magistrate. The core of the dispute revolved around the magistrate's decision to grant a permanent stay of proceedings against Mr Grassby, which the applicant argued was an abuse of process.

The legal issues before the High Court included whether the magistrate's reasons for granting the permanent stay were properly articulated and whether the timing of the magistrate's consideration of an abuse of process defence, relative to the decision to commit for trial, affected the validity of the stay. Specifically, the court considered whether the magistrate's preliminary remarks about granting a stay constituted his final reasons for the order, and whether the magistrate was obligated to make an order under section 41 of the relevant legislation at a particular point in his thought processes.

The court examined the magistrate's pronouncements, noting that his initial statements regarding a permanent stay were presented as preliminary thoughts, inviting submissions from counsel, rather than definitive reasons for his ultimate decision. The applicant's counsel argued that the order for a stay was valid even if it followed the magistrate's conclusion that there was sufficient evidence to commit for trial, provided the magistrate considered all the evidence and determined that continuing the proceedings would constitute an abuse of process. The court considered whether the magistrate's reasoning, which referenced the delay in bringing the charges, the applicant's prior legal action and apology, and the potential for a lenient outcome, amounted to a proper exercise of discretion to stay proceedings as an abuse of process.

Orders