Hopcroft, A.G. v Price, M

[1985] FCA 221

. .

..

2 .

l

25 March 1985 a t the Local Court the Mauistrace heard evidence

c z l l e d by and. or? &half of the appl icant , and on 26 March heard

aruument bp counsel f o r the applicanr: and the informant.

.. .

I

Qn 28 March 1985 the Magisrrace announced thac he 3ed

decided. pursuane r o s . 4 1 ( 6 ) of the Jus-cices kct 1902 (N.S.W.),

as amended. t o commdr the applicant f o r c r i a l i n r e s 2 E c t of eaci;

of the informations referred to above, ocher chan that re la t i s j?

to the patienr; Rise. He stood the matter over t o . ? A p r i l I F S 5

for t h e plirpnse of committing the applxcant for t r x a l . Trier? is

c o n t e n t i m S e t w e n t h e p a r t i e s 8 s t o t h e terms used i~! &?--e

Mauistrate i n kxs reasons on 2 8 March . 1985. parc lcu lar lp in

r e l a t l o n r:c references. expl ic i t or o therwise, :@ the funcr;icq ot-

his versior! cf The f m c t i o n of s.41 of t h e Jus t ices Pcr;. 'ic t h l s

-. . . __ _ _

matter I s h a l l r e f e r l a t e r .

,

I

7 .

. ..

Tableland Peanuts Ptv. Ltd-. v. The Peanut Plarketinu Bow?. 58

B.L.J.R. 283.

I not intend to refer t o these in detail but a list

of authorities relied upon was pro-Tided by the applicant in thls

_ _ . - . - .

._

regard. Certain propositions may be mentioned at this staqe

which are of some siqnificance here. Cme, the decision of a

Mauiscrate to commit For trial is Yithin the class of case that may be reviewed under the Judici-al Review Art. .. . . .

TGO. this Courr,

has a discretion to refuse relief even thouuh a prima faciz cas1

for relief has been made out. Three. the power to make

declarations or decisions affectinu committal proceedings is one

which ought to be exercised only in exceptional cases. B11 these

propositions emerge from the decislon of Lamb v. Moss (1983) A9

&R 533. I would add that to interfere with the conduct of

such proceedings which have proceeded to the point of announced

intention to commit would not only be a drastic step buc

consistently with Lamb v. Moss (supra) vould only be contemplated

in the most unusual circumstances. Even if there were to be shobn

an arguable case for error made bp the Magistrate so that one

miuht be required to consider the exercise of the discretion to

I

grant injunctive relief or declaratory relief, it is to be

I

5

remembered that ther? are competing interests. Wot only is cher?

the interest of the accused or the defendant in those

proceedings; there 1s a l s o the interest of the aeneral public in

proceedings in courts, including commttal proceedings in respect

of alleged offences. Such proceedings, desirably, should be

dealt wlth expeditiously. Accusations of criminal conduct should

be resolved as speedily a s is consistent with the proper

admmistration of !ustice. See, for example. Lamb T T . Moss

(supra): Seymour v . The Attornev-General for the Commonwealth of

Australia,- (unreported) I 7 .. November - 1984. Full Court of thxs

.=

Court; Fermia v. Hand (1984)l F.C.R. 336 at p.337.

One of the criticisms by ser.ior counsel for the

applicant of <h2 gap in which this matter has been dealt wizh by

the Magistrate relates to the xords spoken by him indiracing an intention to commit. It is suqqested he misdirtct3d himself as

to the meaning of 5.41. It was arqued. as I understood counsel,

that the Maqistrate held. after hearing all the evidence, that

what was required was that the applicant should, by evidence

called on his behalf, (including of course, where appropriate.

his own evidence). displace the prima facie case which had

already been established.

are in sone diff1cult-J here since what is actually before the Court, chat is, chis Court. ar? noc, first, the aczua1

kJe

words spoken but notes made by solicitors of what gas sald. Tne

chance for error is considerable in chis hearsay pcocess. Trip

I

____*--II---l-C-_.--_-.l-r--	---	.------.	-.	_-lo	-.-.-.I.._ -------..-	_ _	...-
r

I .

6 .

I I

versions which miuht be offered will differ as they have in the

hearing before me. Mr. Stack’s affidavit of 1 April 1945 does

not agree with the narration I have quoted by senior counsel for

the applicant, nor do I suggest for one monent, that it was

intended precisely to do so, nor that Mr. Stack’s affidavic is

other than a truchful account of what he heard, assisted by a

note taken at che time. This account differs from that deposed

to in the affidavit of 3 April 1955 of Mr. Speirs. Havins heard

__

the Magistrate’s reasons replayed on tape on which chep were

recorded. - I can agree it would have been extremely difficult to - .- _. - .

record an accurate note of what he said. It is to be borne in mind that a Magistrate who is committin? or intending to commit for-trial does nor; in every utterance always follow che precise wording of what a particular section of an act requires or lays down as his duty. He may not in chose terms correctly describe

his degree of satisfaction at any particular stage. He may not

reproduce the very words of s.41 or sub-S. 41(6): in referring

to his opinion as to what the evidence is capable of justifying

in front of a jury he may deparc from the precise verbiacre ln

those sections. Thac does not mean that	he has	fallen into
error..

Doing che best I can on the versions which I have

referred to and listening to the rendition on the tape. I am not

satisfied that in any way the Magistrate’s reasons have falled

correctly to reflect what should be his approach CO the task in

fronr, of him in this regard. Ic follows that I am not persuaded

7.

that on the evidence here the Magistrate has been sho%n to have

made any error in his references to the requirements of	5.41 and
its relevant sub-sections.

Other questions have been raised as to the construction

of s.129 and Reghlation 10 of and made under the Health Insurance

m. I do not accept that an application for interlocutory

relief in respect of committal proceedings should be the occasion

for a minute careful consideration of any questions of statutory

construct-Lon which map have .. arisen in those proceedings. No

- -

doubt many such questions were considered, were discussed, were the subject of argument and determination by the Magistrate and

F

no doubt they will be che subject of discussion and submission in

other proceedings including, perhaps. these proceedings.

I have not been shown, nor has it been demonstrated to

me. that there exists any error in the approach of the

Magistrate insofar as he has dealt with in his reasons. s.129 or

Regulation 10. As at present advised and on zhe little time at

my disposal I incline to the view that "referral", which has been

the subject of submissions. does imply more than completing a

form and does require some personal advertance to the

requirements of the patient referred to. I am at pains CO avoid

trying to enumerate all the matters to which advertance is

required and I wish to indicate that I am not attemptinu finally

to announce a construction of the Act or the Reaglation 1

have arrived at in any firm sense. My views at this stage a r e ,

I .

8 .

I as it were. inchoate and formed for the purpose of this

application only. That questions of lac; may arise under the

sections and reaulations to which reference has been made. as was

conceded, is not a reason for granting an injunction in these proceedings, particularly as on the material before me I am not able to be satisfied, even prima facie, that the Magistrate has fallen into error. Nevertheless. one should conslder the balance

Qf convenience. even if only because it has been the subject of

-

aruument from both counsel.

. . .- .

B substantial part of the applicanc‘s contention is that

adverse publicity would certainly arise from any reporc of a

t.	._	committal if It should take place. This may be so, but I would
have been impressed more with thls argument if I had been given
evidence as to what has been overall the state of reportlng
hitherto, for example, in Taree. of the pcogress of these
matters.

In mv opinion, to interfere with this matter now would

unjustifiably interfere with the ordinary administration of

justice and would tend to bring the administration of crimlnal

law into disrepute. The balance of convenience. in my view.

indicates that having reqard to considerations of public policy and the public Interest in the matter. it ;Jould be hest if I

I refused this injunction, and I do so.

I have to say that I have not fully reproduced. though I

9 .

do hope 1 have considered. all the arwments vhich have been

offered by counsel. Accordingly, I refuse ths injunction. I

stand the natter over to Friday next, the 12th instant, for

further directions in relation to hearinq of the substantive

issues that remain. I will reserve the question of costs.

f