Haydon v Magistrates Court

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HAYDON v MAGISTRATES COURT & ROFE
[2001] SASC 65

Full Court:  Doyle CJ, Olsson and Perry JJ

  1. DOYLE CJ           I have read the reasons prepared by Perry J.  There is no need for me to repeat the relevant facts, or the circumstances under which these proceedings have come before the Court.  I adopt what Perry J has said. I accept the accuracy of the statement of principles found in the reasons of Perry J.

  2. I also agree, for the reasons given by Perry J, that the Magistrate erred in dealing with the claim by the Director of Public Prosecutions that Mr Haydon and the other accused should not be permitted to inspect the material produced by the Director in response to the subpoena issued under s 20 of the Magistrates Court Act.  I agree with Perry J that the Magistrate erred in failing to decide the claim that the material was the subject of public interest immunity, and immune from inspection by the persons charged.  Instead of considering and deciding the claim by reference to the principles referred to by the Magistrate, and set out in the reasons of Perry J, the Magistrate has simply left the decision to be made by the trial Court.  This the Magistrate was not permitted to do.

  3. This Court can interfere if the Magistrate has wrongly failed to exercise the jurisdiction that he was called upon to exercise when the claim of immunity was made.  The plaintiff submits that there has been a wrongful failure by the Magistrate to exercise his jurisdiction.  That being the submission advanced, it is not necessary to consider whether or not there has been an error of law on the face of the record:  cf Craig v The State of South Australia (1995) 184 CLR 163.

  4. This Court does not sit on appeal from a Magistrate conducting a preliminary examination.  The Court’s ability to interfere in the conduct of a preliminary examination is limited, and there are powerful reasons for the Court exercising those limited powers with restraint.  But authority establishes that sometimes an error of law made by a Magistrate in the course of a preliminary examination will amount to a failure to exercise the jurisdiction conferred on the Magistrate.  Such a failure may be remedied by an order by this Court requiring the Magistrate to exercise the jurisdiction.  The relevant principle was stated as follows by Rich, Dixon and McTiernan JJ in The King v War Pensions Entitlement Appeal Tribunal;  ex parte Bott (1933) 50 CLR 228 at 242-243:

    “A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed.  If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded…

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Details
Case
[2001] SASC 65
Decision Date

CaseChat Overview and Summary

In Haydon v Magistrates Court, the applicant, Haydon, sought various forms of relief against the Magistrates Court and the Director, relating to a summons that he had issued. The primary legal issues before the court were whether the court had jurisdiction to hear Haydon's claims, whether the claim of public interest immunity should be upheld, and whether Haydon should be granted access to certain material. Additionally, the court had to determine whether the Special Magistrate's refusal to grant an adjournment was reviewable, and whether the Director was subject to relief. The court examined the nature of the claims, the principles of public interest immunity, and the extent of the court's jurisdiction in reviewing decisions made by a Special Magistrate.

The court found that the Magistrates Court did have jurisdiction to hear Haydon's claims, as they were not barred by the doctrine of public interest immunity. The court held that the claim of public interest immunity should be upheld, and that Haydon should not be granted access to the material in question. This decision was based on the balance between the public interest in maintaining the confidentiality of certain information, and the individual's right to access that information. Furthermore, the court found that the Special Magistrate's refusal to grant an adjournment was not subject to review, as it was a decision within the magistrate's discretion. The Director, on the other hand, was not subject to relief, as the court found that the Director had not acted improperly in their capacity.

The court granted leave to appeal against the order refusing leave to appeal, and substituted an order giving leave to serve the proceedings upon the Magistrates Court, ordering that service of the proceedings be dispensed with. The court also declared that the claim of public interest immunity should be upheld, and affirmed the order denying access by Haydon to the material in question. Finally, the court dismissed the claims in the summons seeking review of the Special Magistrate's decision to refuse an adjournment, and relief against the Director.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ (dissent) OLSSON J PERRY J
I would make the following orders:(a)Granting leave to appeal against the order refusing leave to appeal, allowing the appeal against the refusal of leave to serve the summons upon the Magistrates Court, substituting an order giving leave to serve the proceedings upon the Magistrates Court, ordering that service of the proceedings be dispensed with, and ordering that the hearing of the application for leave to appeal be treated as the hearing of the claim made against the Magistrates Court in the summons.(b)Declaring that the claim of public interest immunity with respect to the material in question should be upheld.(c)Affirming the order denying access by Mr Haydon to that material.(d)Dismissing the claims in the summons:(i)seeking review of the learned Special Magistrate’s decision to refuse an adjournment; and(ii)seeking relief against the Director.JUDGMENT CITATIONSLISTED IN ORDER OF APPEARANCE IN JUDGMENT1. SCR r 94.01(2).2. SCR r 98.07(1).3. Sankey v Whitlam (1978) 142 CLR 1 per Gibbs ACJ at 39. The process of distinguishing between the two classes has been described as “rough but accepted”: see Burmah Oil Co Ltd v Bank of England [1980] AC 1090 per Lord Wilberforce at 1111 and see Commonwealth v Northern Land Council and Anor (1993) 176 CLR 604 per Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ at 616.4. Zarrow and Ors v Australian Securities Commission (1992) 36 FCR 40 per Lockhart J at 45 citing Sankey v Whitlam (supra) per Gibbs ACJ at 39. See also Sankey v Whitlam (supra) per Stephen J at 57. As to cabinet documents, see Adelaide Brighton Cement v South Australia (1999) 75 SASR 209 (Debelle J).6. Sankey v Whitlam (supra) per Gibbs ACJ at 43.7. R v Hardy (1794) 24 State Tr 199 at 808.8. (1985) 3 NSWLR 230 at 246:“The protection of the identity of informers is the result of the immunity from disclosure granted to communications made in the public interest. The protection is no longer regarded as the consequence of an independent rule or privilege but is recognised as a particular manifestation of the doctrine of public interest immunity”,citing D v National Society for the Prevention of Cruelty to Children [1978] AC 171 per Lord Simon at 218, 222-230, 232. The learned author of Law of Privilege (McNicol) (The Law Book Co Ltd 1992) states (10):“Obviously ... the continued existence of the informer privilege is essential for the criminal law. Nonetheless, many of the wider rationales supporting the privilege (such as the protection of the public and the detection of crime) are co-extensive with the rationales supporting the operation of the public interest immunity doctrine, and here the informer privilege will be effectively subsumed under the doctrine of public interest immunity.”9. See R v Robertson and Anor ex parte McCaulay (1983) 21 NTR 11 per O’Leary J at 20-21 citing Tipene v Apperley [1978] 1 NZLR 761 at 768.10. Young v Quin and Ors (1985) 4 FCR 483 per Bowen CJ at 485, 59 ALR 225 at 227, and see Sankey v Whitlam (supra) per Gibbs ACJ at 38 and 44.11. Sankey v Whitlam (supra) per Stephen J at 58:“What are now equally well established are the respective roles of the court and of those, usually the Crown, who assert Crown privilege. A claimed Crown privilege has no automatic operation; it always remains the function of the court to determine upon that claim.”See also Conway v Rimmer [1968] AC 910 per Lord Morris at 954.12. (1984) 154 CLR 404 at 412.13. See also Conway v Rimmer [1968] AC 910 per Lord Reid at 940.14. For example, even a claim that disclosure would be detrimental to national security will not be conclusive: Attorney-General (Victoria) v Heinemann Publishers (Aust) Pty Ltd (1987) 75 ALR 353. See generally Sankey v Whitlam (supra) per Stephen J at 29.15. Australian National Airlines Commission v Commonwealth (1975) 132 CLR 582; Sankey v Whitlam (1978) 142 CLR 1 per Gibbs ACJ at 46; Koowarta v Bjelke-Petersen (1988) 92 FLR 104; Conway v Rimmer [1968] AC 910 at 983. It is not necessary to discuss the particular circumstances when it might be thought proper to inspect, which is a topic upon which authorities give expression to somewhat differing judicial views.16. See Sankey v Whitlam (supra) at 42-43 and Alfred Crompton Amusement Machines v Customs and Excise Commissioners [1974] AC 405 at 433.17. Cain and Ors v Glass and Ors (No 2) (1985) 3 NSWLR 230.18. (1985) 39 SASR 203.19. Goldsmith v Newman and Anor (1992) 59 SASR 404 per King CJ at 409.20. Ibid per King CJ at 408.21. See s 3(1) and see Carter v Hayes (1994) 61 SASR 451 per King CJ at 453 and see Hunt and Anor v Russell and Anor (1995) 63 SASR 402.22. Public Service Association (SA) v Federated Clerks’ Union and Anor (1991) 173 CLR 132 per Dawson and Gaudron JJ at 160.23. Ibid per Brennan J (as he then was) at 142.24. (1992) 9 WAR 82. See also Ex parte Minister for Corrective Services (1993) 9 WAR 534 per Malcolm CJ at 540.25. Ibid 93.26. Goldsmith v Newman (1992) 59 SASR 404 per King CJ at 412; R v Kelly (1981) 28 SASR 271 per King CJ at 274; Storer v Murphy and Anor (No 1) (1991) 104 FLR 303, R v Grieve ex parte Ellis (1978) 19 SASR 437 per Hogarth ACJ, Bright and King JJ at 441, S v Metanomski (1993) 65 A Crim R 352 per King CJ at 353.27. See Sankey v Whitlam 142 CLR per Gibbs ACJ at 22 and see Fuller and Anor v Field and Anor (1995) 66 SASR 1 per Matheson J at 20.28. [1890] 25 QBD 494 at 498.29. 15 M & W 169.30. 24 St Tr 199.31. (1885) 4th edition, Article 113 at 200.32. Citing R v Hardy 24 ST 811; AG v Bryant 15 M & W 169; R v Richardson 3 F & F 693. [Gr Ev i.§ 250; US v Moses 4 Wash C C 726; State v Soper 16 Me 293; Worthington v Scribner 109 Mass.33. As Priestley J remarked in Cain v Glass (No 2) (1985) 3 NSWLR 242:“The courts have always recognised the great importance of not forcing public disclosure by police of their sources of information.”34. [1995] 1 VR 84.35. [1995] 1 VR at 89.36. Ibid at 90.37. Ibid at 91.38. [1994] 1 WLR 746 per Lord Taylor of Gosforth CJ, Auld and Mitchell JJ at 752.39. 20 December 1993 (unreported).

Ratio Decidendi

Legal Principle Established

Established by: OLSSON J, PERRY J

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