Kocalidis v Magistrates' Court of Victoria (No 1)
[2014] VSC 243
•29 May 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No S CI 2013 6087
| PETER KOCALIDIS | Plaintiff |
| v | |
| THE MAGISTRATES' COURT OF VICTORIA STEVEN WONG | First defendant |
| Second defendant |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2014 | |
DATE OF RULING: | 29 May 2014 | |
CASE MAY BE CITED AS: | Kocalidis v Magistrates' Court of Victoria (No 1) | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 243 | |
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ADMINISTRATIVE LAW – Application for judicial review – Magistrate discharged accused after committal hearing – Informant ordered to pay accused’s costs of the committal – Informant seeking judicial review of costs order – Preliminary questions – Nature and source of Supreme Court’s power to quash costs order – Whether court should refuse to quash in the exercise of its discretion
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Robinson QC Ms K Walker | Director of Public Prosecutions (Commonwealth) |
| For the First Defendant | No appearance | |
| For the Second Defendant | Mr P Tehan QC Mr C Carr | Slades & Parsons |
HER HONOUR:
Introduction
On 13 March 2013, Steven Wong, the second defendant, was charged with conspiracy to offer a benefit to a foreign public official, contrary to ss 11.5(1) and 70.2(1) of the Commonwealth Criminal Code. More specifically, he was alleged to have conspired with his former employer, Note Printing Australia Limited (“NPA”), and other former employees and commercial agents of NPA (including Barry Brady, Peter Hutchinson and John Leckenby), to offer a bribe in order to influence Nepalese bank officials to enter into a banknote printing contract with NPA. Messrs Brady, Hutchinson and Leckenby were also charged with false accounting, in relation to an invoice for a payment to NPA’s Nepalese agent.
The first defendant (“the magistrate”) heard committal proceedings concerning the alleged Nepalese offences, on various dates between 22 July and 30 August 2013.
On 25 September 2013, the magistrate discharged Mr Wong and others accused in relation to the alleged Nepalese conspiracy. However, he did commit Messrs Brady, Hutchinson and Leckenby to stand trial in relation to the false accounting charge.
On that same day, the magistrate ordered that the informant pay Mr Wong’s costs of the committal proceeding.[1] The costs order was made under s 401 of the Criminal Procedure Act 2009 (Vic) (“the CPA”), which applies to federal committal proceedings by virtue of s 68(1) and/or s 79 of the Judiciary Act1903 (Cth).
[1]The magistrate ordered that the informant pay 80% of the costs of Messrs Brady, Hutchinson and Leckenby, but those orders are not the subject of this proceeding. I understand that separate judicial review proceedings have been issued, but not served, in respect of those costs orders.
By originating motion dated 22 November 2013, the informant seeks judicial review of the costs order, under either order 56 of the Supreme Court (General Civil Procedure Rules 2005 (“the Rules”), or s 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).
The informant alleges that “the costs order was vitiated by error because the prior decision to discharge [Mr Wong] in relation to the bribery offence was infected by jurisdictional error.” In the originating motion, the informant identifies the following grounds of alleged jurisdictional error:
(a) The magistrate misconceived the nature of his function and powers in that he failed to apply the correct test in deciding to discharge Mr Wong; and/or
(b) The magistrate failed to take into account relevant considerations, namely the inferences available from the evidence that were capable of supporting a conviction; and/or
(c) The magistrate’s decision not to commit Mr Wong for trial in relation to the alleged conspiracy was unreasonable.
It is not necessary for me to consider at this stage the particulars provided in respect of each of those alleged jurisdictional errors, given the limited nature of the current application before me.
On 11 December 2013, the Commonwealth Director of Public Prosecutions filed a direct indictment against Messrs Wong, Brady, Hutchinson and Leckenby in respect of the alleged Nepalese conspiracy.[2]
[2]The CDPP’s power to directly indict an accused who has not been committed to stand trial comes from s 6(2D) of the Director of Public Prosecutions Act 1983 (Cth).
At the first directions hearing in this proceeding, Mr Wong indicated that he wished to challenge the court’s power to quash the costs order. Alternatively, if the court did have such power, Mr Wong wished to argue that the court should decline to grant relief in the nature of certiorari, in the exercise of its discretion, for public policy reasons. In his written outline, Mr Wong said it would be contrary to public policy to uphold a challenge to the costs order, when that would necessarily involve a collateral attack on the decision to discharge (which was said not to be amenable to judicial review). In the course of oral submissions prior to the setting down of the preliminary questions, such a collateral attack was also said to amount to an abuse of process (particularly in circumstances where a direct indictment had been filed).
As those matters related to discrete issues of law, would take a relatively short time to argue, and had the potential to render a full hearing of the judicial review proceeding unnecessary, I acceded to Mr Wong’s application that they be determined as preliminary questions under r 47.04 of the Rules.
On 13 December 2013, after hearing argument about the form of the questions, I ordered that the following questions arising in this proceeding be heard and determined separately:
(a) Does the court have power in this case to make an order for, or in the nature of, certiorari quashing the order of the first defendant, dated 25 September 2013, that the informant pay the second defendant’s costs of the proceeding … pursuant to:
(i) Order 56 of the Rules; or
(ii) Section 16(1) of the [ADJR Act]?
(b) If the answer to question (a)(i) or (ii) is in the affirmative, would the court, in the exercise of its discretion, refuse to quash the order, even if the grounds in the plaintiff’s originating motion were made out?
For the reasons which follow, I have concluded that the preliminary questions should be answered:
Question (a)(i) Yes
Question (a)(ii) No
Question (b) No
The magistrate’s reasons for making the costs order
Section 401(1) of the CPA relevantly provides that “the costs of, and incidental to, all criminal proceedings in the Magistrates’ Court are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent the costs are to be paid.”
In determining to order costs in favour of Mr Wong, the magistrate applied the well-established principles formulated by the majority in Latoudis v Casey.[3]
[3](1990) 170 CLR 534 (“Latoudis”).
In Latoudis, the High Court was considering the power granted by s 97(b) of the Magistrates (Summary Proceedings) Act 1975 (Vic), to order an informant to pay a defendant “such costs as [the court] thought just and reasonable” when a magistrate dismissed an information in a summary proceeding.
All members of the court agreed that there is not a complete analogy between the awarding of costs in summary criminal proceedings and in civil proceedings; in particular, it is not correct to say that there is a general rule that “costs follow the event” in criminal proceedings.
Nevertheless, Mason CJ and Toohey J both said that in ordinary circumstances an order for costs should be made in favour of a defendant against whom a prosecution has failed.[4] Similarly, McHugh J said that a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for costs.[5] Those three judges all acknowledged that the conduct of the successful defendant – before the charge is laid, or in defending the prosecution – may justify a refusal of costs.[6] Brennan and Dawson JJ dissented, holding that a successful defendant in a criminal proceeding could have no expectation as a general rule that costs would be awarded in their favour.[7]
[4]At 544 (Mason CJ); at 565 (Toohey J).
[5]At 569 (McHugh J).
[6]At 544 (Mason CJ); at 565 (Toohey J); at 569 (McHugh J).
[7]At 545 (Brennan J); at 561 (Dawson J).
The reviewability of the decision to discharge
The parties agree that a magistrate’s decision to commit or discharge an accused person is not reviewable by this court under order 56.
In Potter v Tural,[8] the Court of Appeal considered the long line of authority in this State for the proposition that neither an appeal nor certiorari (nor equivalent relief under the Administrative Law Act 1978 (Vic)) is available in relation to a decision to commit or discharge at committal. Batt JA (with whom Tadgell JA and Callaway JA agreed on this point) noted that the earlier cases had said that the basis for that principle was because the decision was ministerial, not judicial. His Honour said that “the better view … is now considered to be, not the ministerial nature of the order, but the fact that it determines nothing save the sufficiency, in the magistrate’s opinion, of the evidence to put the defendant upon trial for an indictable offence.”[9]
[8](2000) 2 VR 612.
[9]At [20].
However, Potter concerned committal proceedings in relation to a State offence, not a federal offence. It is well-established that decisions made in committal proceedings in respect of an offence against Commonwealth law are subject to judicial review under the ADJR Act.[10] It has been said that the discretionary jurisdiction should only be exercised in “an exceptional case”, because of the undesirability of fragmenting the criminal process.[11] The jurisdiction was also narrowed in 2000 by the introduction of s 9A, which limits the rights of a defendant (but not the Crown) to seek judicial review under the ADJR Act. But the fact remains that, in this case, the informant could have sought judicial review of the magistrate’s decision to discharge Mr Wong, under the ADJR Act.
[10]Lamb v Moss (1983) 76 FLR 296; Yates v Wilson (1989) 168 CR 338 (“Yates”); Lovell v Adjuk (1991) 28 FCR 565; Thorp v Abbotto (1992) 34 FCR 366; Bayley v Ackland (1994) 36 ALD 15; Australian Securities Commission v Burns (1994) 33 ALD 584.
[11]Yates at 339.
The nature of the informant’s challenge to the costs order
The informant does not:
(a) Dispute that it was appropriate for the magistrate to apply the principles enunciated by the majority in Latoudis;
(b) Assert that the magistrate erred in the way in which he applied those principles; or
(c) Assert that there is any other independent flaw in the decision to make the costs order.
Rather, the informant seeks to have the costs order quashed on the basis that the prior decision to discharge Mr Wong in relation to the bribery offence was infected by jurisdictional error. The informant relies on the general administrative law principle that where a decision affecting rights and liabilities is contingent on an anterior decision, an error in the anterior decision may provide the basis for judicial review of the final decision.
Mr Wong’s initial position was to argue that where there is an anterior decision which is relevantly flawed, which led to an ultimate decision which is not, in itself, relevantly flawed, certiorari may lie to quash the anterior decision but not the ultimate decision. Applying that principle in this case, Mr Wong said that certiorari would not lie in respect of the costs decision, even if there was jurisdictional error in the discharge decision. In the alternative, Mr Wong says that the discharge decision and the costs decision are so separate and discrete as to prevent the costs order from being quashed on the basis of any error in the discharge decision.
The court’s power to quash the costs order
The informant has not sought to have the discharge decision quashed under the ADJR Act. Rather, the CDPP has chosen to exercise his power to directly indict, leaving the informant to seek to quash only the costs order.
Identifying the jurisdictional basis for the court’s review of the costs order is complicated by the fact that the committal proceeding was one in the exercise of federal jurisdiction.
Because the alleged Nepalese conspiracy is an offence under the Criminal Code, the committal proceeding involved an exercise of federal jurisdiction under s 68(2) of the Judiciary Act. Although the costs order was made under s 401 of the CPA, that provision is picked up and applied in relation to a federal committal proceeding by s 68(1) and/or s 79 of the Judiciary Act.
The power to award costs under s 401 is not a free-standing power, divorced from the committal proceeding that preceded its exercise. It follows that both the discharge decision and the costs order were made “under a law of the Commonwealth”[12] and in the exercise of federal jurisdiction.
[12]Laws that are picked up and applied by the Judiciary Act are applied as laws of the Commonwealth (sometimes described as “surrogate Commonwealth laws”): Commonwealth v Mewett (1997) 191 CLR 471 at 553-4; Maguire v Simpson (1977) 139 CLR 362 at 376-7; Putland v R (2004) 218 CLR 174 at [4].
It is well-established that, in deciding whether to commit or discharge an accused, a magistrate exercises administrative power. But it is necessary to determine whether the costs order was made in the exercise of judicial or administrative power, in order to determine the appropriate procedure for any review of the costs order:
(a) If the costs order is administrative, it is reviewable under s 16(1) of the ADJR Act.[13] This court may exercise jurisdiction under that Act by reason of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth);[14]
(b) If the costs order is judicial, then review under the ADJR Act is not available. In those circumstances, this court has jurisdiction under one or more of s 85 of the Constitution Act 1975 (Vic), order 56 and/or s 39 of the Judiciary Act.
[13]The ADJR Act relevantly applies to “a decision of an administrative character” made “under a Commonwealth enactment” (s 3).
[14]Jurisdiction under the ADJR Act would be a “special federal matter” (as defined in s 3 of the Cross-vesting Act). By reason of s 6 of the Cross-vesting Act, such a matter must be transferred to the Federal Court unless the State court makes an order under s 6(3), which it may do only if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceedings, other than reasons relevant to the convenience of the parties. Whether such an order would or should be made in this proceeding does not arise as part of the preliminary questions.
It is therefore necessary to characterise the nature of the power to make the costs order.
Judicial or administrative power?
The power to order costs is commonly, but not exclusively, judicial in nature. Administrative bodies may also be given a power to order costs.
Both the informant and Mr Wong accept that in making the costs order, the magistrate was exercising judicial, not administrative, power. I agree with that proposition, for the following reasons, even though there seems to be no direct authority on the point.
In constitutional law cases, it is often necessary to characterise a power as judicial or administrative, in order to determine whether a body has been validly or invalidly exercising Commonwealth judicial power. It has long been recognised that “no single combination of necessary or sufficient factors identifies what is judicial power.”[15] The mere fact that the Parliament has assigned a decision to a judicial or administrative body is not conclusive of the constitutional character of the decision.[16]
[15]Commonwealth v Alinta Limited (2008) 233 CLR 542 at [93] (Hayne J).
[16]Ibid at [37] (Kirby J).
In their joint judgment in Brandy v Human Rights and Equal Opportunity Commission,[17] Deane, Dawson, Gaudron and McHugh JJ said:
Difficulty arises in attempting to formulate a comprehensive definition of judicial power not so much because it consists of a number of factors as because the combination is not always the same. It is hard to point to any essential or constant characteristic. Moreover, there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not.
[17](1995) 183 CLR 245 at 267.
In an oft-quoted passage in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Ltd,[18] Kitto J said:
[A] judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons.
[18](1970) 123 CLR 361 at 374.
The informant referred me to several single instance decisions in which judges considered whether particular statutory powers to order costs were judicial or administrative in nature.
In Lansley v Knight,[19] a magistrate discharged the applicant at the end of committal proceedings, and ordered the payment of a fixed amount of costs in her favour. The applicant brought judicial review proceedings under s 5(1) of the Administrative Decisions (Judicial Review) Act 1989 (ACT), seeking to have the amount fixed for costs substantially increased. Miles CJ said:
[A]n order for costs made after the conclusion of committal proceedings in favour of the defendant … is a final determination of the rights of the parties in relation to the question of the costs of the committal proceedings that have been concluded, the parties being the informant and the defendant. The order in this case is that of a Magistrates Court, which, although given an administrative function in relation to committal proceedings, is essentially not an administrative body. It is difficult, in my view, to characterise a court order for costs as an administrative decision rather than a judicial determination.[20]
[19](1992) 110 FLR 295 (“Lansley”).
[20]Lansley at 297-8.
As a statement of general principle, I agree with Miles CJ’s observations. In fact, in that case, it is apparent from his Honour’s reasons that the application had proceeded before him without he or counsel having turned their minds to the proper characterisation of the costs order; everybody had simply assumed that judicial review under the ACT legislation was the appropriate mechanism for challenging the costs order. So, notwithstanding his opinion that the power to order costs was judicial, his Honour was prepared to assume for the purposes of his decision that it was administrative; otherwise, he would have had no power to determine the application and dismiss it.
In Stack v Commissioner of Patents,[21] Drummond J had to consider whether a statutory power to award costs, which was given to the Commissioner of Patents, involved an impermissible conferral of Commonwealth judicial power on an administrative body. His Honour held that the power to award costs was not necessarily stamped with an exclusively judicial character. Rather, he said that a “statutory power to award costs in respect of proceedings before a decision-maker, judicial or administrative, takes its character from the principal power to which the power to award costs must always be ancillary.”[22]
[21](1999) 161 ALR 531 (“Stack”).
[22]At [32].
Drummond J’s statement was cited with approval by Cooper J in GS Technology Pty Ltd v Secretary of the Copyright Tribunal,[23] a case which concerned the constitutional validity of a costs power granted to the Copyright Tribunal.
[23](1999) 59 ALD 146 at [15]-[16] (“GS Technology”).
In so far as Drummond J seemed to be asserting that a statutory power to award costs must always take its character from the principal power, that proposition is not supported by the authority upon which he relies, namely Cominos v Cominos.[24]
[24](1972) 127 CLR 588 at 591 (“Cominos”).
In Cominos, the High Court was considering the constitutional validity of the conferral of a costs power on State courts, which had been invested with Commonwealth power in respect of matrimonial causes. The husband sought to challenge a costs order which had been made against him; he argued that the power to order costs was non-judicial in nature, and therefore beyond the power of the Commonwealth to confer on a State court. The High Court unanimously rejected that contention. The particular passage to which Drummond J referred in Stack comes from the joint decision of McTiernan and Menzies J in Cominos:
In our opinion the challenge fails because it is a recognised part of judicial power to make orders of the sort authorised by the sections in question in the exercise of judicial power to hear and determine matrimonial causes. The powers conferred by the sections are ancillary too [sic], and take their colour from, the valid grant of jurisdiction to hear and determine matrimonial causes.[25]
[25]At 591.
The High Court was considering the particular legislation before it, and was not purporting to state an absolute rule as broad as that apparently suggested by Drummond J.
In any event, the decisions in Stack and GS Technology are also distinguishable from the current case, because they both concerned a costs power conferred upon an administrative body which otherwise was clearly exercising administrative power; so, both the nature of the body and the nature of the power pointed in the same direction.
In contrast, s 401 of the CPA confers a costs power on a judicial body, but in relation to both judicial and administrative functions. I agree with the informant’s contention that, in the case of s 401, the nature of the body ought to be given greater weight than the nature of the decision to which it is ancillary. If the power conferred by s 401 was regarded as taking its character from the principal power, then the nature of the s 401 power would vary depending on whether the principal power was judicial (in the case of summary criminal proceedings) or administrative (in the case of committal proceedings). The power conferred on a single body by a single section is better regarded as having a single character – in this case, a judicial character, because it has been conferred on a court.
For these reasons, I agree with the parties’ contention that in making the costs order the magistrate was exercising judicial, not administrative, power. But, if I was wrong in relation to that, the costs order would still be amenable to judicial review, albeit under the ADJR Act, not order 56.
Relationship between the costs order and the discharge decision
As mentioned earlier, the informant does not assert that there is any independent flaw in the decision to award costs. Rather, he asserts jurisdictional error in the underlying discharge decision, which he says the costs decision followed (both logically and chronologically).
In his written outline of submissions, Mr Wong asserted that certiorari only enabled the quashing of an impugned order or decision on the basis that it was infected by some relevant flaw. He said that certiorari would not lie to quash the legal effect of a decision on the basis that some other decision was infected by reviewable error. He cited as authority for that proposition the High Court decision in Craig v South Australia.[26] He also asserted that Hot Holdings Pty Ltd v Creasy[27] was authority for the proposition that where there is a relevantly flawed anterior decision, which led to an unflawed ultimate decision, certiorari may issue to quash the anterior decision, but not the ultimate decision. In fact, neither Craig nor Hot Holdings is authority for such propositions.
[26](1994) 184 CLR 163 (“Craig”).
[27](1995) 185 CLR 149 at 158-162 (“Hot Holdings”).
In Craig, the court discussed in some detail the nature of the jurisdiction to grant relief in the nature of certiorari, either for jurisdictional error or error on the face of the record; but it did not make any statement along the lines suggested by Mr Wong.[28]
[28]Either at the pages specified by him, namely 175-6, or elsewhere.
Hot Holdings concerned a decision made under the Mining Act 1978 (WA), the general scheme of which was as follows. A mining warden had to consider all applications for mining tenements, and report to the relevant Minister recommending the grant or refusal of each application. Wardens had power to conduct a ballot, for the purpose of deciding who had priority in respect of a mining tenement for which there were multiple applicants. The Minister had the ultimate power to decide whether to grant or refuse an application for a tenement, whether or not the warden recommended its approval.
In Hot Holdings, the court considered whether certiorari lay to challenge a particular decision by a warden to conduct a ballot. The warden had not yet reported to the Minister, and the Minister had made no ultimate decision to grant or refuse any application. The question before the court was whether the decision of the warden had a sufficiently immediate impact on the rights of the applicants to satisfy the requirements of certiorari. The majority[29] held that a preliminary decision or recommendation, if it is one which constitutes a condition precedent to the exercise of power that will affect legal rights, will have the requisite effect upon rights to attract certiorari. Since the Minister was required to take the warden’s recommendation into account, the warden’s discretion had a discernible legal effect on the Minister’s exercise of discretion. Hence, certiorari lay to challenge the warden’s decision to conduct a ballot.
[29]Brennan CJ, Gaudron and Gummow JJ; Dawson and Toohey JJ dissenting.
Hot Holdings did not involve any consideration of the basis on which the ultimate decision (the Minister’s decision) might be reviewed, if and when it was made. In particular, the court made no findings or observations along the lines suggested in Mr Wong’s written outline (namely that where there is a relevantly flawed anterior decision, which led to an unflawed ultimate decision, certiorari may issue to quash the anterior decision, but not the ultimate decision).
I accept that, as a matter of general administrative law, where a decision affecting rights and liabilities is contingent on an anterior decision, an error in the anterior decision may provide the basis for judicial review of the final decision.[30] That is so even if the anterior decision does not itself affect rights and liabilities. In fact, in his oral submissions, Mr Wong seemed to accept the correctness of that proposition.[31]
[30]See for example: Plaintiff S10-2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at [46]-[48] (“S10”); Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at [54] (“Jarratt”).
[31]T48.
However, there is a dispute in this case as to whether the costs decision is relevantly contingent on or sufficiently connected to the discharge decision.
In oral submissions, Mr Wong argued that the decisions to discharge and award costs were so discrete and separate that an error in the discharge decision would not provide a basis for judicial review of the costs order.
Mr Wong pointed out that the discharge decision was made in the exercise of administrative power, whereas the costs decision was made in the exercise of judicial power. I accept that the two decisions involved the exercise of different types of power by the same body, but it does not follow automatically from that fact that the latter decision was not relevantly connected to the former.
Mr Wong also took the court to the various provisions in the CPA which govern the conduct of a committal. Even accepting that once the decision to commit or discharge is made under s 141(4) of the CPA, the committal is at an end, it does not follow (as Mr Wong asserts) that a costs decision under s 401 is not relevantly connected to the committal or discharge decision.
Nor does it matter for the purposes of judicial review that the anterior and ultimate decisions are made under different statutory provisions.
In some of the cases to which I was taken,[32] the anterior and ultimate decisions were made by completely different decision makers, at different times; but even that did not preclude the court from finding that the ultimate decision was relevantly connected to the anterior decision.
[32]For example, in S10 and Jarratt.
As previously discussed,[33] it is not correct to say that costs simply “followed the event” in this case. However, in applying Latoudis, the magistrate ordered costs in favour of Mr Wong because he had been successful at the committal hearing, and therefore had a reasonable expectation of obtaining his costs. That is to say, the costs order was relevantly connected to the discharge decision.
[33]At para [16] above.
Mahon v New Zealand[34] is a case which closely resembles the current situation. In that case, a judge conducted a Royal Commission into the Mount Erebus air crash. He concluded that the airline was at fault, and that there was a predetermined plan by some of its senior management to deceive about the cause of the crash. He reported his findings to the Governor-General, but his report had no legal effect. He also ordered the airline to pay a substantial amount towards the costs of the Royal Commission, under a statutory power to do so. The airline sought judicial review of the costs order.
[34][1984] 1 AC 808 (“Mahon”).
The Privy Council held that the judge’s findings against the airline had been made in the absence of probative evidence, and without giving persons affected by those findings the opportunity to rebut them. Those findings had formed the basis of the judge’s finding of a predetermined plan of deception, which in turn had been a major influence on the decision to order costs. It followed that the costs order had been made in breach of the rules of natural justice. The judge’s anterior decision and findings were legally flawed; those flaws provided a basis for quashing the costs order.
A legally flawed anterior decision may lead to error in the final and operative decision. The informant submits that the error in the final decision might be conceptualised the same as the anterior error (eg irrationality, breach of natural justice), or it might be conceptualised as taking into account an irrelevant consideration (namely, a decision that never ought to have been made). In fact, in the originating motion, the informant has chosen the first of those conceptual paths. The informant argues that, however it is conceptualised, the final order should not as a matter of principle be insulated from judicial review simply because the anterior decision may not be subject to judicial review.
For these reasons, preliminary question (a)(i) should be answered “yes”. That is to say, the court does have power in this case to make an order for, or in the nature of, certiorari quashing the costs order pursuant to order 56.
It follows that question (a)(ii) should be answered “no”.
Would certiorari be refused on discretionary grounds?
For the purposes of preliminary question (b), I must assume (without deciding) that the informant would be able to make good his allegations of jurisdictional error.
Public policy and abuse arguments
As mentioned earlier, when the preliminary questions were set down, Mr Wong’s primary submission was that it would be contrary to public policy and/or an abuse of process to grant certiorari in relation to the costs order because:
(a) This proceeding involves a collateral attack on a decision that is not itself amenable to judicial review (the discharge decision), and to allow that would bring the administration of justice into disrepute; and
(b) Because the CDPP has now laid a direct indictment against Mr Wong, neither the CDPP nor the informant can now litigate the discharge decision.
Accordingly, Mr Wong argued that the court would necessarily refuse to exercise its discretion to grant relief in the nature of certiorari, even if the informant could establish the requisite error below.
After the informant’s written outline pointed out the difference between the reviewability of committal decisions for Victorian and Commonwealth offences, Mr Wong did not press the abuse or public policy arguments in his oral submissions.
I agree that the public policy and abuse arguments (as originally framed) could not have succeeded (even if pressed), broadly for the reasons stated in the informant’s written submissions.
As to the argument set out in paragraph 66(a) above:
(a) As Mr Wong was charged with a Commonwealth offence, this proceeding does not involve a collateral challenge to a decision that is not amenable to judicial review; and
(b) The principle against collateral attack identified in Gianarelli v Wraith,[35] relied on by Mr Wong, is concerned with collateral attacks on judicial decisions of a final nature. The decision to discharge was administrative, not judicial, and does not finally determine rights and liabilities. The administration of justice would not be brought into disrepute by a collateral attack on an administrative decision of that kind.
[35](1988) 165 CLR 543 at 558.
As to the argument set out in paragraph 66(b) above:
(a) The prosecution accepts that the fact that the CDPP has directly indicted Mr Wong for trial means that neither the CDPP nor the informant could now successfully review the discharge decision under the ADJR Act (either because he would not be a “person aggrieved”, or because relief would be refused in the exercise of discretion”);
(b) However, this does not mean that relief in relation to the costs order must inevitably be refused as a matter of discretion. The costs order clearly affects rights and liabilities, and the informant is a person aggrieved by that order.
Other arguments
In oral submissions, Mr Wong advanced what were described as “two broad reasons”[36] why certiorari would be refused in this case in the exercise of discretion:
(a) This proceeding is in reality an attack on the decision to discharge, and such an attack should not be allowed, especially where it involves the examination of voluminous material from which inferences are drawn in a circumstantial case; and
(b) Such a collateral attack is not permitted where it involves an examination of the sufficiency of evidence.
[36]T73.
Inferences drawn from voluminous material
Mr Wong sought to rely on the decision of Wilcox J in Souter v Webb[37] as authority for the first of those propositions. In that case, the applicant sought judicial review, under the ADJR Act, of a magistrate’s decision to commit him for trial for possession of prohibited drugs.
[37](1984) 2 FCR 193 (“Souter”).
In Souter, the applicant sought judicial review on the basis that no prima facie case had been made out against him.[38] In order to determine the question of possession of the drugs, it would have been necessary to undertake a detailed examination of the evidence, and a consideration of proper inferences that might be drawn from the surrounding circumstances. Wilcox J said that such a detailed dissection was appropriate for trial, but not on an application for review of the decision to commit:
The court should entertain a submission for review, upon the ground that there is no prima facie case, of a magistrate’s decision to commit only where it is abundantly clear, without intricate consideration of the evidence, that there is a failure to establish a necessary ingredient in the charge. To depart from that principle is significantly to erode the requirement of exceptional circumstances, and to create the opportunity, in a substantial proportion of cases, for yet another review of the facts, additional to committal proceedings and a trial, with attendant costs and delays. Once it appears that the “no case” submission requires investigation of the minutiae of the evidence and the consideration of the proper inferences from circumstantial events then the stage has been reached at which it is proper to dismiss the application for review without further consideration.[39]
[38]Souter predated the amendments to the ADJR Act in 2000, which curtailed an accused person’s right to seek judicial review of the decision to commit.
[39]At 199-200.
Mr Wong argued that in the present case, by analogy, the court would refuse to grant certiorari if the court would be required to conduct a lengthy hearing, with an examination of voluminous materials, and a consideration of the sufficiency of the evidence in a circumstantial case.
There are several problems with Mr Wong’s argument that question (b) should be answered “no”, because of such considerations.
It is not clear whether the first ground of judicial review relied upon by the informant (namely, that the magistrate misconceived the nature of his function and powers, in that he failed to apply the correct test in deciding to discharge Mr Wong) would require a consideration of voluminous material.
The particulars to the second ground of judicial review (namely, that the magistrate failed to take into account relevant considerations), refer to some correspondence in February 2000, October 2001 and November 2001, and an alleged sham tender process. I have no idea how much evidence would need to be considered to determine that ground.
The final ground (namely, that the decision to discharge was so unreasonable that no reasonable magistrate could have made the decision) more clearly calls for an examination of all the evidence before the magistrate.
Mr Wong’s counsel made a number of submissions from the Bar table about the volume of material that would need to be considered, in order to determine the judicial review grounds raised in the informant’s originating motion. But there is very little evidence before me in relation to that matter. The parties agreed that the only evidence which needed to be before the court for the purposes of answering the preliminary questions was the affidavit of David Sewell, a solicitor employed by the CDPP, sworn on 22 November 2013, and the exhibits thereto (which occupy one lever arch folder). Whilst that evidence discloses the total number of court days spent on the Nepalese committal hearing, and gives some idea of the submissions made by the parties, it does not enable me to come to any firm conclusions as to how voluminous the task would be to consider any one or more of the informant’s judicial review grounds.
In any event, I agree with the informant that the argument about voluminous material is outside the scope of preliminary question (b) (which was set down for hearing with a very different issue in mind). Preliminary question (b) asks whether the court would, in the exercise of its discretion, refuse to quash the costs order, even if the grounds in the originating motion were made out. What Mr Wong now seems to be arguing is that the court should refuse to entertain the judicial review proceeding at all, because of the volume of material that would need to be considered in order to decide whether the grounds were made out. That seems to be a different question, which is not covered by question (b).
An examination of the sufficiency of evidence
As authority for Mr Wong’s second argument, he relied upon the High Court decision in Ousley v R.[40] In that case, the High Court said that a warrant issued by a judicial officer may be subject to collateral attack, if there appears to be an error on the face of the warrant, but not if it involves an examination of the sufficiency of the evidence giving rise to it. That principle is unobjectionable, but the case is very different from the present. Mr Wong sought to extrapolate from Ousley a broader principle, namely that judicial review would never be permitted if it would involve an examination of the sufficiency of evidence to commit or discharge. Ousley did not purport to state such a broad principle.
[40](1997) 192 CLR 69.
Furthermore, as with the argument about voluminous material, this argument is really outside the scope of preliminary question (b).
Fragmentation argument
During the course of oral submissions, Mr Wong also said that question (b) should be answered “no”, because otherwise there would be a fragmentation of the criminal proceeding. Asked to expand on that argument, Mr Wong said that he would not know what his position would be at trial, if he had to continue to litigate the judicial review proceeding.
Now that a direct indictment has been filed, no decision made by whichever other judge hears the judicial review proceeding would have a legal effect on the trial of the criminal proceeding in this court. Judicial review of the costs order would not fragment or interrupt the criminal process in any legal sense.
I accept that there will be a need to ensure that any hearings in the civil and criminal proceedings are listed in a way that does not cause prejudice or unfairness to Mr Wong and the other accused.
I also accept that it is possible that the outcome of the judicial review proceeding may have a practical effect on Mr Wong’s capacity to fund his defence of the criminal proceeding. However, there is at present simply no evidence before the court as to Mr Wong’s capacity to fund his defence (with or without the benefit of the costs to which he is currently entitled under the costs order). Issues relating to any of the accused persons’ capacity to fund their defence can be dealt with in the usual way in the criminal proceedings.
Accordingly, I am unable to conclude that the court would refuse to grant certiorari in the exercise of its discretion on some sort of fragmentation argument.
Conclusion
For these reasons, preliminary question (b) – which asks whether the court would, in the exercise of its discretion, refuse to quash the costs order, even if the grounds in the originating motion were made out – should be answered “no”.
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