Kirsch v Dolman
[2001] VSC 234
•19 July 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6028 of 2001
| HELMUT KIRSCH v | Plaintiff |
| JASON KENNETH DOLMAN | First Named Defendant |
| and | |
| THE MAGISTRATES' COURT AT MELBOURNE | Second Named Defendant |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 July 2001 | |
DATE OF JUDGMENT: | 19 July 2001 | |
CASE MAY BE CITED AS: | Kirsch v Dolman and Anor | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 234 | |
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Judicial Review – failure to give notice of application – denial of natural justice – jurisdictional error – costs payable by policeman – no entitlement to certificate under Appeal Costs Act 1998.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Appeared on his own behalf | |
| For the First Named Defendant | Mr A. Burns (Solicitor) | Victorian Government Solicitor |
| For the Second Named Defendant | No appearance |
TABLE OF CONTENTS
Parties................................................................................................................................................... 2
The Decision....................................................................................................................................... 2
No Opposition.................................................................................................................................... 3
Certificate under Appeal Costs Act 1998........................................................................................ 4
A. Civil or Criminal Proceeding?.................................................................................................... 5
B. Judicial Review – an Appeal?...................................................................................................... 8
C. Crown not entitled to Certificate................................................................................................ 9
D. Discretionary Matters................................................................................................................. 10
Conclusion......................................................................................................................................... 10
HIS HONOUR:
This is the return of a summons, in a proceeding instituted by originating motion, seeking judicial review of an order made by a Magistrate on 4 May 2001, requiring the plaintiff to undergo a compulsory procedure pursuant to s.464T of the Crimes Act 1958 ("the Act"). A compulsory procedure is the taking of an intimate or non‑intimate sample from a person suspected of a crime, or the conduct of a physical examination of such a person – see s.464(1). Section 464T is found in sub-division 30A of the Act, which is concerned with custody and investigation.
Parties
The plaintiff, Helmut Kirsch ("the plaintiff"), is an elderly person who, in February this year, was residing at 302 Arden Street, North Melbourne.
The first named defendant, Jason Kenneth Dolman ("the defendant"), is a member of the Victorian Police Force.
The second named defendant, the Magistrates' Court of Victoria, is joined as a necessary party pursuant to Rule 56.01(3) of the Rules of Court, representing the Magistrate who made the order. In accordance with the normal practice, the Court informed this Court that it did not propose to participate in the judicial review and has informed the Court that it will abide the decision.
The Decision
On 4 May 2001, the defendant made application to the Magistrates' Court, pursuant to s.464T of the Act, for an order directing the plaintiff to undergo a compulsory procedure. The plaintiff was not informed that application was to be made, and was not present when the order was made.
Section 464T(4) provides -
"(4)Except on an application made in accordance with s.464V or 464W, the Magistrates' Court must not make an order directing a person to undergo a compulsory procedure unless the person is present."
Sections 464V and 464W did not apply.
Clearly, there has been a breach of sub-section (4) of s.464T.
In the case of Garry Stephen Lednar & Ors v The Magistrates' Court of Victoria and the Chief Commissioner of Police, I considered the various provisions of sub‑division 30A of the Act. I was concerned with s.464ZF of the Act. In my reasons delivered on 22 December 2000, I found that members of the police force applying for orders and the Magistrates' Court overlooked a number of important matters with respect to applications for DNA samples. In addition to finding that a number of orders were made contrary to s.125 of the Magistrates' Court Act 1986, in that the orders were not made in open court, I also drew attention to the fact that there had been a failure to comply with some of the provisions of s.464ZF.
Despite the criticisms made, it appears that some members of the force and some Magistrates are still failing to comply with the provisions of the Act.
The provisions in sub-division 30A substantially encroach upon the rights of the individual. The legislation has been carefully drawn to ensure that the interference with the rights of the individual are kept to a minimum. It is absolutely vital that members of the force and Magistrates ensure that, before any orders are made under any of the sections in sub-division 30A, all statutory requirements have been satisfied. This present matter is another example where insufficient attention was paid, by both the defendant and the Magistrates' Court, in respect of the application concerning the plaintiff.
The plaintiff should have been given notice of the application, and the order should not have been made until he was present at the Court.
Indeed, this is made very clear by s.464T(7)(d) which requires the Court, making the order, to inform the person ordered to undergo the procedure, that a member of the force may use reasonable force to enable the procedure to be carried out.
No Opposition
The plaintiff issued an originating motion on 30 May 2001, seeking a review of the order and an order, in the nature of certiorari, quashing the decision.
No issue was raised as to whether the application should have been made by way of appeal from an order of the Magistrates' Court pursuant to the Magistrates' Court Act 1986 – see s.92.
The jurisdiction of this Court to review decisions of inferior courts is limited. The jurisdiction is supervisory, and does not entitle the Court to canvass matters that it would on an appeal. In a judicial review, the Court is exercising its common law jurisdiction. The Court is concerned with the legality of what was done by the Court, and is not concerned with the merits of the decision under review. There are a number of well-established grounds for the exercise of the jurisdiction, most importantly, jurisdictional error, failing to observe some applicable requirement of procedural fairness, fraud, or an error of law on the face of the record. See Craig v South Australia (1995) 184 CLR 163 at 175-76.
The order was made in the absence of the plaintiff, and contrary to the express provision of s.464T(4). Accordingly, the plaintiff has been denied natural justice to which he was entitled pursuant to the Act. Further, the failure to comply with the express terms of s.464T(4) amounted to a jurisdictional error.
Not surprisingly, the defendant did not oppose an order that the order made on 4 May 2001 be quashed.
Certificate under Appeal Costs Act 1998
The solicitor acting for the defendant did not oppose an order that the order be quashed, nor did he oppose an order that the defendant pay the plaintiff's costs, including reserved costs.
However, the defendant, Mr Dolman, sought an indemnity certificate under the Appeal Costs Act 1998.
The plaintiff submitted that because of the failure by the defendant to comply with the law in circumstances where the provisions of the section were clear, the Court, in the exercise of the discretion, should not grant a certificate to Mr Dolman.
During the course of submissions, it became clear that there were a number of issues that had to be addressed on the question of a certificate under the Appeal Costs Act.
They are –
(i)Is the present proceeding before this Court a civil or criminal matter?
(ii)If a civil matter, is a judicial review a proceeding in the nature of an appeal within the meaning of s.4(1) of the Act?
(iii)Does s.38 preclude a member of the police force obtaining a certificate?
(iv)Was the conduct of Mr Dolman such that the Court, in the exercise of its discretion, should refuse a certificate?
A. Civil or Criminal Proceeding?
Mr T. Burns, the solicitor acting for Mr Dolman, submitted that the judicial review was a civil matter and accordingly, under s.4(1) of the Appeal Costs Act, Mr Dolman was entitled to a certificate.
Part 3 of the Act concerns entitlement to payment in criminal matters.
It is clear that there is no provision in the Act which would entitle Mr Dolman to obtain a certificate if the proceeding is a criminal matter.
Section 4(1), which is in Part 2 of the Act, provides –
"4(1) If an appeal against a decision of a court in a civil proceeding –
(a)to the Trial Division of the Supreme Court; or
(b)…
(c)…
succeeds, a respondent to that appeal may apply to the Supreme Court for, and the court may grant, an indemnity certificate in respect of costs."
(Emphases added).
The phrase "civil proceeding" is not defined by the Act.
Judicial review, in this Court, is an ancient jurisdiction which this Court has with respect to inferior courts, tribunals and administrative bodies. It is a jurisdiction which goes back many centuries, and is supervisory in nature to ensure that those bodies exercise their powers and procedures in accordance with the law and within jurisdiction.
The present judicial review was concerned with an order made pursuant to the Crimes Act, in circumstances where a member of the police force was seeking a DNA sample which may be used as part of an investigation against the plaintiff, who was suspected of committing an offence. The sample may be used as evidence in the hearing of a charge that may be laid against the plaintiff.
The application and the order are part of a procedure which could lead to criminal charges being laid and heard. The statutory procedure is part of the weaponry available to members of the police force to investigate crime.
The prerogative writ jurisdiction, which was the predecessor to judicial review, was exercisable by this Court and the superior courts of Westminster against inferior courts, exercising both civil and criminal jurisdictions.
Over the years, both in this State and in England, the right to appeal has been regulated by statute. From time to time, the courts have been confronted with the problem of whether there is a right of appeal in relation to a criminal cause or matter.
In Amand v Home Secretary (1943) AC 147, the House of Lords was concerned with a case where a Netherlands subject was arrested in England as an absentee, without leave, from the Netherlands Army. A divisional court refused his application for a writ of habeas corpus, and the Court of Appeal held that it had no jurisdiction to hear an appeal from this decision. The statute concerning appeals excluded an appeal from "a criminal cause or matter". So, the question was whether the application for a writ of habeas corpus was a criminal cause or matter.
At p.156, Viscount Simon LC said –
"It is the nature and character of the proceeding in which habeas corpus is sought which provides the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal."
Applying that test, the House of Lords held that the appellant's application for the writ of habeas corpus and the refusal was "in a criminal cause or matter", and accordingly, there was no right of appeal.
In R v Watt; ex parte Slade (1912) VLR 225, the Full Court was concerned with the question whether there was a right of appeal where an application had been made for the issue of a writ of mandamus. The Court, at first instance, refused to issue the writ. At p.241, Cussen J noted that in some cases, the nature of the proceeding was equivocal as to whether it was criminal or civil. He went on to say this –
"Such are cases of habeas corpus, mandamus, certiorari, and matters of that kind. In these cases you may have to look back to see whether the matter directly under consideration is not merely subordinate or ancillary to some prior and more substantial matter, and where the decision one way or the other, in the matter directly under consideration, does or does not affect the proceedings on, or in connection with, the other and more substantial matter. If you find it does affect the prior matter, whether a proceeding in court or not, which itself is criminal, then it may be held, and it has been held in many cases, that the proceeding directly under consideration is a criminal matter. There are numerous examples of that class of case in the books, and I think it is that class of case which gives rise to the most difficulty. In both classes it is the substance and not the form which determines the ultimate decision. If, for example, you have an application for habeas corpus, you cannot determine straight off, simply on learning that fact, whether the matter is criminal or not. If you find that that habeas corpus relates to the imprisonment of some person who is imprisoned for some offence, then it would probably be held that it is a criminal matter, and if it relates to the custody of a child, apart from any question of imprisonment in the ordinary sense, it may be held to be a civil matter. The same considerations will determine cases in connection with many applications for mandamus, certiorari, and so on."
(Emphases added).
Although these cases were concerned with the question of appeals in relation to prerogative writ applications, the reasoning provides a practical test to determine the nature of the proceeding.
The Court must consider the substance of the matter which is the underlying proceeding in respect of which judicial review is applied.
Applying that test, it is my opinion that the judicial review was in respect of a matter which was criminal in nature, and that this was the underlying proceeding which was the subject of the exercise of the judicial review jurisdiction of this Court. Hence, the exercise of the common law jurisdiction of this Court was in respect of a matter which was a criminal matter.
It follows that s.4(1) of the Appeal Costs Act does not apply to this judicial review and accordingly, Mr Dolman is not entitled to an indemnity certificate under that sub‑section.
B. Judicial Review – an Appeal?
In light of my conclusion on the nature of the judicial review, it is unnecessary to consider the other two issues. However, they do raise matters of some importance and I will briefly consider them.
The authorities are clear, judicial review is not the exercise of an appellate jurisdiction. See Craig's case, supra, at p.175.
The word "appeal" is defined by s.3(1) of the Appeal Costs Act and extends its normal meaning. The section provides –
"(1) In this Act –
'appeal' includes an appeal by way of re-hearing, an application for a new trial and any proceeding in the nature of an appeal, but does not include a case stated;"
(Emphasis added).
The question is whether judicial review is a proceeding "in the nature of an appeal".
Fullagar J in R v Marshall, ex parte Baronor Nominees Pty Ltd (1984) VR 211 at pp.227-8 held that the old Appeal Costs Fund Act 1964 applied to judicial review. The definition of "appeal" included "any other proceedings in the nature of an appeal", and His Honour held that the provisions of the Act should be liberally construed. He held that an application for a prerogative writ was in the nature of an appeal, and granted a certificate. There is no difference in the relevant wording in the present Act, and I respectfully agree and adopt His Honour's reasoning.
If the proceeding had been a civil proceeding, it would have been open to the Court to grant a certificate under s.4(1) of the present Act.
C. Crown not entitled to Certificate
Section 38 of the Act provides –
"38.A court must not grant an indemnity certificate in favour of the Crown or any person representing the Crown."
Was the defendant, Mr Dolman, a person representing the Crown at the time when the order was made or, as a defendant in the proceeding in this Court? As a general proposition, prerogative remedies are not available against the Crown. The proper procedure against the Crown is a declaratory judgment. See Administrative Law by H.W.R. Wade, 6th ed, at p.644.
Further, in this State, many prerogative-type orders have been made in relation to proceedings involving a member of the police force. These propositions strongly suggest that Mr Dolman is neither the Crown nor a person representing the Crown in the present proceeding.
In any event, a member of the force who is investigating a crime, is not acting in any capacity as the Crown or representing the Crown. It is not until the filing of a presentment that the Crown becomes involved in any prosecution.
In Munday v Gill (1930) 44 CLR 38 at 86, Dixon J said –
"There is, however, a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment or ex officio information are pleas of the Crown. The prosecution for an offence punishable summarily is a proceeding between subject and subject."
See also McEwen v Siley (1972) 21 FLR 131 at 134.
It is clear law that when a police officer lays a charge, he is not acting for or on behalf of the Crown but acting purely and simply on his own decision. In my view, a member of the force, when investigating a crime and applying for a statutory order that a suspect provide a sample, is not acting as the Crown or representing the Crown.
In my opinion, s.38 has no application to the present matter and would not have precluded the grant of a certificate.
D. Discretionary Matters
The plaintiff submitted that, given the circumstances of what was a blatant breach of the law, Mr Dolman should not have a certificate in the exercise of the discretion of the Court. There is no doubt that the Court does have a discretion, and in an appropriate case, may refuse a certificate for good cause. However, because Mr Dolman is not entitled in any event to a certificate because the proceeding is a criminal proceeding, it is unnecessary for me to make any findings in respect of the question of discretion.
An error caused by a submission of a party to a court which should not have been made, may be a ground for refusing the granting of a certificate. See Di Battista v Motton (1971) VR 565.
Conclusion
In my opinion, Mr Dolman is not entitled to a certificate under the Appeal Costs Act 1998 because this judicial review is concerned with a matter which is not a "civil proceeding" within the meaning of s.4(1) of the Act.
I propose to make the following orders –
(i)That the order of the Magistrates' Court of Victoria made at Melbourne on 4 May 2001 in which Jason K. Dolman is the applicant and Helmut Kirsch is the respondent, be quashed.
(ii)That the first defendant Jason Kenneth Dolman pay the plaintiff's costs of the proceeding including reserved costs.
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