John Holland Pty Ltd v Wallis - [2022] WASC 358

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   JOHN HOLLAND PTY LTD -v- WALLIS [2022] WASC 358
CORAM:   ARCHER J
HEARD:   21 JUNE 2022 AND FURTHER SUBMISSIONS FILED 26 AND 28 JULY 2022
DELIVERED          :   8 NOVEMBER 2022
FILE NO/S:   CIV 2150 of 2021
MATTER:   An application under the Magistrates Court Act 2004 (WA) section 36 for a review order against T Hall, Magistrate of the Magistrates Court at Perth
BETWEEN:   JOHN HOLLAND PTY LTD
Applicant
AND
CRAIG ROBERT GEORGE WALLIS
First Respondent
MAGISTRATE THOMAS RUSSELL HALL
Second Respondent
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Interested Party

Catchwords:

Review of a magistrate's refusal to dismiss or stay a prosecution - Validity of prosecution notice - Efficacy of delegation of power to authorise an inspector to commence a prosecution - Statutory construction - Source of power to authorise - Source of function to authorise - Necessary intendment - Incidental power

Legislation:

Work Health and Safety Act 2011 (Cth), ss 152 - 153, 260

Result:

Decision quashed

Category: A

Representation:

Counsel:

Applicant	:	A P Young KC & K Kumar
First Respondent	:	M Howard SC & J Solliss
Second Respondent	:	No appearance
Interested Party	:	No appearance

Solicitors:

Applicant	:	Sparke Helmore Lawyers
First Respondent	:	Commonwealth Director of Public Prosecutions
Second Respondent	:	State Solicitor's Office
Interested Party	:	No Appearance

Case(s) referred to in decision(s):

A v Maughan [2016] WASCA 128; (2016) 50 WAR 263
Ashwin v Housing Authority [2019] WASC 144
Brockway v Kirk [2019] WASC 8
Director of Public Prosecutions (Cth) v Haddad [2019] NSWCA 55; (2019) 367 ALR 269
Egan v Willis [1998] HCA 71; (1998) 195 CLR 424
Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727
Hemmett v Market Direct Group [2018] WASC 214
HongkongBank of Australia Ltd v Australian Securities Commission (1992) 40 FCR 402
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Mercantile Mutual Life Insurance Co Ltd v Australian Security Commission (1993) 40 FCR 409
Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820; (2004) 81 ALD 365
R v Judd [1919] HCA 9; (1919) 26 CLR 168
Rayney v AW [2009] WASCA 203
Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357
Re Magistrate G Benn; Ex parte Gething [2019] WASC 380
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Taylor v Attorney General [2019] HCA 30; (2019) 268 CLR 224
Trolly, Draymen and Carters Union of Sydney and Suburbs v Master Carriers Association of NSW [1905] HCA 20; (1905) 2 CLR 509

ARCHER J:

Introduction

On or about 31 January 2019, the applicant, John Holland, was charged with an offence against s 32 of the Work Health and Safety Act 2011 (Cth) (WHS Act). The prosecution notice was signed by the first respondent, Mr Craig Wallis.
On 26 July 2021, the applicant applied to…

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.

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Details

Case: [2022] WASC 358
Decision Date

CaseChat Overview and Summary

The case of John Holland Pty Ltd v Wallis involved a Dismissal Application heard by Magistrate Hall on 21 September 2021. The applicant, John Holland Pty Ltd, sought a review of the Decision under section 36 of the Magistrates Court Act 2004 (WA). The primary contention was that Mr Wallis, who had initiated the prosecution, lacked the necessary authorisation to do so. Magistrate Hall dismissed the Dismissal Application, leading to the subsequent Review Application. The applicant argued that the magistrate should have found that Mr Wallis was not authorised to commence the prosecution, which prompted the magistrate to provide a notice of intention to abide.

The legal issues before the court involved the interpretation and application of section 36 of the Magistrates Court Act 2004 (WA). The court needed to determine whether the applicant had established an arguable case that an error of the type identified in s 36(1)(a), (b), or (c) was made. This required the court to examine whether the error was either a jurisdictional error or an error of law on the face of the record. The applicant's argument hinged on whether the magistrate's decision to dismiss the application was flawed due to an absence of authorisation in Mr Wallis.

In delivering the decision, the court considered the statutory framework and the applicable legal principles. The court noted that for a review order to be made under section 36(1), the applicant must demonstrate an arguable case of an error of the specified type. The court examined the arguments presented and concluded that the applicant had not established such an arguable case. The court found no merit in the applicant's assertion that Mr Wallis lacked the necessary authorisation, thus dismissing the Review Application. The court's reasoning was grounded in the statutory requirements and the evidence presented, leading to the affirmation of the magistrate's decision.

No further orders were made as the court found no grounds for a review under the specified statutory provisions. The decision underscored the importance of the proper authorisation of individuals initiating prosecutions and the rigorous standards required for a successful judicial review application.

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

The Dismissal Application was heard by the second respondent, his Honour Magistrate Hall, on 21 September 2021. His Honour dismissed the Dismissal Application (Decision). On 1 November 2021, the applicant applied to this Court for a review order of the Decision under s 36 of the Magistrates Court Act 2004 (WA) (Review Application). The applicant asserts, in effect, that the magistrate ought to have found that Mr Wallis was not authorised to commence the prosecution. The learned magistrate has, appropriately, provided a notice of intention to abide. Section 36 of the Magistrates Court Act 2004 (WA) is a statutory judicial review power.[9] Section 36(1) provides:[9] Rayney v AW [2009] WASCA 203 [27] (McClure JA, as her Honour then was; Buss JA, as his Honour then was, and Newnes JA agreeing).(1)If a person is or would be aggrieved by one or more of the following ‑(a)the failure of a Court officer to do any act or make any order or direction ‑(i)on the ground that the officer is under a duty to do the act or make the order or direction; or(ii)on any ground that might have justified an order of mandamus;(b)an act, order or direction that a Court officer proposes to do or make -(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or(ii)on any ground that might have justified an order of prohibition;(c)an act, order or direction done or made by a Court officer -(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or(ii)on any ground that might have justified an order of certiorari,the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires. A review order can only be made if the applicant establishes an arguable case that an error of the type identified in s 36(1)(a), (b) or (c) was made. To fall within s 36(1), the error must be either a jurisdictional error, or it must be an error of law on the face of the record.[10] [10] Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357. See also Rayney [27] ‑ [34] and Ashwin v Housing Authority [2019] WASC 144 [3] ‑ [9]. As to what a jurisdictional error is, see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J) and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123. The procedure for making, and in relation to, an application under s 36(1) is set out in O 56A of the Rules of the Supreme Court 1971 (WA). If a review order is made, and if at the hearing of the review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, the Court may:[11](a)order that the act, order or direction be or not be done or made or set aside, as the case requires;(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;(c)make any necessary consequential orders.[11] Section 36(4) of the Magistrates Court Act.

Ratio Decidendi

Legal Principle Established

At the time, s 597(1) - (3) of the Corporations Law provided:Section 597. Examination of persons concerned with corporations(1)In this section, a reference, in relation to a corporation, to a prescribed person, is a reference to an official manager, liquidator or provisional liquidator of the corporation or to any other person authorised by the Commission to make applications under this section or to make an application under this section in relation to that corporation.(2)Where it appears to the Commission or to a prescribed person that:(a)a person who has taken part or been concerned in the promotion, formation, management, administration or winding up of, or has otherwise taken part or been concerned in affairs of, a corporation has been, or may have been, guilty of fraud, negligence, default, breach of trust, breach of duty or other misconduct in relation to that corporation; or(b)a person may be capable of giving information in relation to the promotion, formation, management, administration or winding up of, or otherwise in relation to affairs of, a corporation; the Commission or prescribed person may apply to the Court for an order under this section in relation to the person.(3)Where an application is made under subsection (2) in relation to a person, the Court may order that the person attend before the Court on a day and at a time to be fixed by the Court to be examined on oath on any matters relating to the promotion, formation, management, administration or winding up of, or otherwise relating to affairs of, the corporation concerned. For ease of reference, I will refer to an application for an order under s 597 as an 'Examination Application'. The Regional Commissioner's decision to authorise the third respondents to make Examination Applications was purportedly made in the exercise of powers delegated by the first respondent, the Australian Securities Commission (ASC). There were two instruments of delegation, which I will refer to as the 'first instrument' and the 'second instrument'. The first instrument of delegation relevantly read as follows:[56][56] Mercantile Mutual, 426 - 427.AUSTRALIAN SECURITIES COMMISSIONASC LAWDELEGATION OF POWERS AND FUNCTIONSPURSUANT to section 102 of the ASC LAW, the AUSTRALIAN SECURITIES COMMISSION ('the Commission') HEREBY DELEGATES to each of the persons from time to time holding, occupying or performing the duties of the offices and positions mentioned in Schedule A and Schedule B (other than a person who has been suspended from or is on leave from and is during the course of such leave absent from the Commission), all of the powers and functions conferred or expressed to be conferred on the Commission by or under the following provisions:(1)all of the powers and functions conferred or expressed to be conferred on the Commission by or under the provisions of the Corporations Law other than subparagraph 409(5)(a)(ii), subsections 65(1), 260(1), 313(6), 349(7), 733(1), 1058(9) and section 1113;(2) …(3) … AND THE COMMISSION HEREBY DECLARES for the removal of doubt that this delegation does not revoke, and is not intended to be construed as revoking, any previous delegation granted by the Commission, except insofar as a previous instrument delegated functions and powers to persons suspended or on leave from the offices of positions mentioned in that instrument.SCHEDULE A(a)the Regional Commissioner for the State of New South Wales;…DATED this 21st day of March 1991.[The Common Seal of the ASC was duly affixed]