Lamb, Peter v Moss, Thomas Ervin

Re: PETER LAMB
And: THOMAS ERVIN MOSS
And: BRUCE RAYMOND BROWN (1983) 76 FLR 296
N.S.W. G63 of 1983
Administrative Law - Crown - High Court and Federal Judiciary

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Sheppard(1) and Fitzgerald(1) JJ.

CATCHWORDS

ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act - applicant seeking to have reviewed "decisions or conduct" of a stipendiary magistrate in committal proceedings - whether the magistrate made a "decision" or "engaged in conduct" for the purpose of a "decision" - whether decisions of an "administrative character" - whether decisions or conduct "under an enactment" - the Court's discretion under the Administrative Decisions (Judicial Review) Act.

Judiciary Act 1903, ss. 68, 69, 71

Crimes Act 1914, ss. 86, 86E

Administrative Decisions (Judicial Review) Act, ss. 3, 5, 6, 7, 8, 9 to 11, 12, 13, 15, 16, 18

Justices Act (N.S.W.) 1902, ss. 21, 41, 41A, 42

Administrative Law - Judicial review - Whether court bound to hear application - Whether bound to grant relief - Discretion to refuse relief - Magistrate making decisions during committal proceedings for federal offence - Justices Act 1902 (N.S.W.), s. 41 - Judiciary Act 1903 (Cth), s. 68(2) - Administrative Decisions (Judicial Review) Act 1977 (Cth).

Crown - Decision - Class of decisions to be reviewed - Whether conduct engaged in for purpose of making decision - Magistrate making decisions during committal proceedings for federal offence - Justices Act 1902 (N.S.W.), s. 41(4) - Judiciary Act 1903 (Cth), s. 68(2) - Administrative Decisions (Judicial Review) Act 1977 (Cth).

Crown - Administrative Decisions (Judicial Review) Act 1977 (Cth) - Decision of magistrate during committal proceedings for federal offence - Whether made under an enactment - Justices Act 1902 (N.S.W.), s. 41(4) - Judiciary Act 1903 (Cth), s. 68(2) - Administrative Decisions (Judicial Review) Act 1977 (Cth).

High Court and Federal Judiciary - Federal Court of Australia - Supervisory jurisdiction - Review of administrative decisions - Magistrate hearing committal proceedings for federal offence - Order of review in exceptional cases - Justices Act 1902 (N.S.W.), s. 41 - Judiciary Act 1903 (Cth), s. 68(2) - Administrative Decisions (Judicial Review) Act 1977 (Cth).

HEADNOTE

A magistrate during committal proceedings for a federal offence determined that there was a prima facie case for another offence and proposed that the proceedings continue under s. 41(4) of the Justices Act 1902 (N.S.W.). The first respondent sought unsuccessfully to have witnesses recalled for cross-examination and sought a stay of proceedings. On an appeal from a finding of jurisdiction to review those decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth),

Held, dismissing the appeal: (1) Once the jurisdiction of the court is properly enlivened by a sufficent application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) there is an obligation on the court to entertain that application. However the existence of that obligation is not inconsistent with the discretionary power which exists under the Act to refuse relief.

(2) It is in the exercise of that discretion that the court will exercise control over the circumstances in which and the stage at which judicial review will be embarked upon and the court's discretion is not limited to what is to occur when it comes to the question of whether to grant or refuse final relief.

(3) There is no limitation, implied or otherwise, which restricts the class of decision which may be reviewed under the Act to decisions which finally determine rights or obligations or which may be said to have an ultimate or operative effect.

Director-General of Social Services v. Chaney (1980) 47 FLR 80; Director-General of Social Services v. Hangan (1982), distinguished.

Riordan v. Parole Board of the Australian Capital Territory (1981) 34 ALR 322; Roberts v. Garrett (1982) 40 ALR 311, not followed.

Huston v. Costigan (1982) 45 ALR 559, followed. Ross and Heap v. Costigan (1982) 59 FLR 184, applied.

(4) The magistrate's opinion that a prima facie case had been established and his determination to continue with the proceedings constituted one or more decisions which are reviewable if of an administrative character and made under an enactment.

(5) The refusal to grant a stay of proceedings was not such a decision; the refusal to allow further cross-examination of Crown witnesses may not be a decision but it was conduct engaged in for the purpose of making a decision.

(6) The decisions were clearly of an administrative character R. v. Davison (1954) 90 CLR 353; R. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; Sankey v. Whitlam (1978) 142 CLR 1, applied.

(7) The decisions were made under an enactment, s. 68(2) of the Judiciary Act 1903 (Cth), which extends the operation of the Justices Act 1902 (N.S.W.) and makes s. 41 applicable to committal proceedings for federal offences.

Australian National University v. Burns (1982); Parkes Rural Distributors Pty Ltd v. Glasson (1983) 48 ALR 601, followed.

Obiter: The power to make an order of review under the Act in respect of committal proceedings should be exercised only in most exceptional cases, especially in respect of a decision in the course of proceedings.

HEARING

Sydney, 1983, June 9-10; October 12. #DATE 12:10:1983

APPEAL.

Appeal from a decision of St John J. of the Federal Court of Australia dismissing an objection to the competency of an application under the Administrative Decisions (Judicial Review) Act 1977.

D. F. Rofe Q.C., J. S. Williams and M. W. Inglis, for the applicant.

M. W. Mackrell and M. B. Smith, for the first respondent.

H. K. Roberts, for the second respondent.

Cur. adv. vult.

Solicitor for the applicant: B. J. O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the first respondent: Dawson Waldron.

Solicitors for the second respondent: Crown Solicitors Office.

B.A.G.

ORDER

1. Appeal dismissed with costs.

Orders accordingly.

JUDGE1

This is an appeal from a decision of St. John J. dismissing an objection to the competency of an application to the Court under the Administrative Decisions (Judicial Review) Act 1977 ("the Act").

On 31 March 1978, the first respondent, Thomas Ervin Moss, a medical practitioner, was charged on the information of the appellant, Peter Lamb, with an offence under para 86(1)(e) of the Crimes Act 1914 ("the Crimes Act"). The information alleged that, between 1 July 1972 and 31 March 1978 at Sydney in the State of New South Wales, Dr Moss conspired with certain named persons and divers unknown persons to defraud the Commonwealth of Australia. Committal proceedings were subsequently commenced before the second respondent, Bruce Raymond Brown, a New South Wales stipendiary magistrate appointed under the Justices Act 1902 (N.S.W.) ("the Justices Act").

On 29 November 1982, after all the evidence for the prosecution had been taken in an extraordinarily lengthy hearing, the stipendiary magistrate, who has appeared in these proceedings only to abide the order of the Court, found that a prima facie case had been made out against a number of defendants, including Dr Moss, in respect of a different offence against s.86 of the Crimes Act. It is not in dispute that, in an appropriate case, it would be open to a stipendiary magistrate to form and proceed upon such a conclusion notwithstanding the variation from the original offence charged. The stipendiary magistrate did not proceed further on 29 November but adjourned the committal proceedings to 2 December 1982.

On 2 December 1982, a number of applications was made to the stipendiary magistrate by Counsel on behalf of Dr Moss. One application was for a direction, "that certain witnesses should be recalled for further cross-examination in the light of the fact that Your Worship has found no prima facie case in respect of the charge as laid in the original information". Another application was for a stay of the committal proceedings as an abuse of process. The stipendiary magistrate refused those applications and adjourned the committal proceedings to 20 December 1982. On that date the stipendiary magistrate indicated that he did not propose to order that Dr Moss be discharged at that stage of the committal proceedings but intended to proceed under sub-s. 41(4) of the Justices Act, which is set out below.

On the same day, 20 December 1982, an application was made in this Court to review the decisions or conduct of the stipendiary magistrate. An objection to competency was filed on 30 December 1982. The objection was argued before St. John J. who dismissed it with costs on 17 March 1983. The present appeal is brought from his Honour's decision.

It is not in contest that this Court is not concerned with s.86E of the Crimes Act, which was repealed during 1982 by Act No. 67 of 1982. The immediately relevant statutory provisions, apart from para 86(1)(e) of the Crimes Act which makes a conspiracy to defraud the Commonwealth an indictable offence, are to be found in the Judiciary Act 1903 ("the Judiciary Act") and s.41 of the Justices Act. The latter is, of course, an Act of the New South Wales Parliament, not the Parliament of the Commonwealth.

Section 68, which is contained in Part X of the Judiciary Act "Criminal Jurisdiction - Division 1 - Application of Laws", provides so far as may be relevant:

"68(1) The laws of each State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for -

(a) their summary conviction; and

(b) their examination and commitment for trial on indictment; and

(c) their trial and conviction on indictment; and

(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith,

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth committed within that State or Territory, or whose trial for offences committed elsewhere may lawfully be held therein.

(2) The several Courts of a State or Territory exercising jurisdiction with respect to -

(a) the summary conviction; or

(b) the examination and commitment for trial on indictment; or

(c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State or Territory, or who may lawfully be tried within the State or Territory for offences committed elsewhere.

(3) Provided that such jurisdiction shall not be judicially exercised with respect to the summary conviction or examination and commitment for trial of any person except by a Stipendiary or Police or Special Magistrate, or some Magistrate of the State of Territory who is specially authorized by the Governor-General to exercise such jurisdiction.

(4) The several Courts of a State or Territory exercising the jurisdiction conferred upon them by this section shall, upon application being made in that behalf, have power to order, upon such terms as they think fit, that any information laid before them in respect of an offence against the laws of the Commonwealth shall be amended so as to remove any defect either in form or substance contained in that information.

. . .

(7) The procedure referred to in sub-section (1) and the jurisdiction referred to in sub-section (2) shall be deemed to include procedure and jurisdiction in accordance with provisions of a law of a State or Territory under which a person who, in proceedings before a court of summary jurisdiction, pleads guilty to a charge for which he could be prosecuted on indictment may be committed to a court having jurisdiction to try offences on indictment to be sentenced or otherwise dealt with without being tried in that court, and the reference in sub-sections (1) and (2) to "any such trial or conviction" shall be read as including any conviction or sentencing in accordance with any such provisions.

(8) Except as otherwise specifically provided by an Act passed after the commencement of this sub-section, a person may be dealt with in accordance with provisions of the kind referred to in sub-section (7) notwithstanding that, apart from this section, the offence would be required to be prosecuted on indictment, or would be required to be prosecuted either summarily or on indictment.

(9) Where a law of a State or Territory of the kind referred to in sub-section (7) refers to indictable offences, that reference shall, for the purposes of the application of the provisions of the law in accordance with that sub-section, be read as including a reference to an offence against a law of the Commonwealth that may be prosecuted on indictment.

(10) Where, in accordance with a procedure of the kind referred to in sub-section (7), a person is to be sentenced by a court having jurisdiction to try offences on indictment, that person shall, for the purpose of ascertaining the sentence that may be imposed, be deemed to have been prosecuted and convicted on indictment in that court.

(11) Nothing in this section excludes or limits any power of arrest conferred by, or any jurisdiction vested or conferred by, any other law, including an Act passed before the commencement of this sub-section."

Sections 69 and 71, which are contained in Division 2 of Part X of the Judiciary Act - "Indictable Offences", provide so far as may be relevant: "69(1) Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor-General appoints in that behalf.

(2) Any such appointment shall be by commission in the Queen's name, and may extend to the whole Commonwealth or to any State or part of the Commonwealth.

71. When any person is under commitment upon a charge of an indictable offence against the laws of the Commonwealth, the Attorney-General or such other person as the Governor-General appoints in that behalf may decline to proceed further in the prosecution, and may, if the person is in custody, by warrant under his hand direct the discharge of the person from custody, and he shall be discharged accordingly."

Sections 21, 41, 41A and 42 of the Justices Act provide, so far as may be presently material:

"21. An information may be laid before a Justice in any case where any person has committed or is suspected to have committed any treason or other indictable offence -

(a) in New South Wales;

(b) on the high seas, or in any creek, harbour, or other place in which the Admiralty of England have or claim to have jurisdiction;

(c) on land beyond the seas, when for such offence an indictment may legally be preferred in New South Wales.

"41(1) Whenever a person charged with an offence upon an information under section 21 appears or is brought before a Justice or Justices voluntarily upon summons or upon apprehension under or without warrant or in custody for such or any other offence, the Justice or Justices shall take the evidence for the prosecution in manner hereinbefore provided.

. . .

(1B) (a) Subject to this section, the evidence for the prosecution shall be taken in the presence of the defendant.

. . .

(2) After all the evidence for the prosecution has been taken the Justice or Justices shall -

(a) if he or they is or are of opinion that such evidence is not sufficient to warrant the defendant being put upon his trial for an indictable offence, forthwith order the defendant, if in custody to be discharged as to the information then under inquiry;

(b) if he or they is or are of opinion that a prima facie case has been made out, proceed as hereinafter provided.

(3) . . .

(4) (i) Where the evidence for the prosecution has, in the opinion of the Justice or Justices, established a prima facie case, he shall -

(a) say to the defendant: "Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be recorded, and may be given against you in evidence at your trial"; and

(b) before the defendant makes any statement in answer, inform the defendant and give him clearly to understand that he has nothing to hope from any promise or favour and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he then says may be given in evidence against him upon his trial notwithstanding such promise or threat.

(ii) Whatever the defendant then says shall be recorded by one of the means referred to in section 36(4).

(iii) Such statement if taken down in writing shall be read over to the defendant and shall be signed by the Justice or Justices.

(iv) Such statement -

(a) if taken down in writing, may be given in evidence at the trial of the defendant without further proof unless it be proved that the Justice or Justices by whom it purports to be signed did not in fact sign it;

(b) if in the form of a transcript, certified in the prescribed manner, of a record (other than in writing) made pursuant to paragraph (ii), may be given in evidence at the trial of the defendant if it is proved on oath that the record so made is a true record of the statement made by the defendant and that the transcript is a correct transcript of the record so made.

(v) Nothing herein shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the defendant, made at any time, which by law would be admissible as evidence against him.

(5)(i) After the defendant has made such statement, or if he makes no such statement, the Justice or Justices shall ask him if he desires to give evidence himself or to call any witness on his behalf.

(ii) Any evidence then given by or on behalf of the defendant shall be taken by the Justice or Justices in manner hereinbefore provided in respect of evidence for the prosecution.

(6) When all the evidence for the prosecution and for the defence has been taken the Justice or Justices shall -

(a) if he or they is or are of opinion that on such evidence the defendant ought not to be put upon his trial for an indictable offence, forthwith order the defendant, if in custody, to be discharged as to the information then under inquiry,

(b) if he or they is or are of opinion that the evidence is sufficient to warrant the defendant being put on his trial for an indictable offence, or if the evidence raises a strong or probable presumption of the guilt of the accused, commit the defendant for trial.

41A.(1) The Justice or Justices making any order discharging a defendant as to the information then under inquiry may in and by such order adjudge that the informant shall pay to the clerk of the court to be by him paid to the defendant such costs as to such Justice or Justices seem just and reasonable.

(2) The amount so allowed for costs shall in all cases be specified in such order.

(3) The provisions of sections 82, 83 and 84 relating to orders for the payment of costs shall, mutatis mutandis, apply to and in respect of orders for the payment of costs made pursuant to this section.

42.(1) Where a person is committed for trial, the committing Justice or Justices shall, subject to the Bail Act, 1978, commit him to prison, there, subject to that Act, to be safely kept until the sittings of the Court before which he is to be tried or until he is delivered by due course of law."

The Issues:

The "decisions or conduct" of the stipendiary magistrate which Dr Moss seeks to have reviewed are described in the Application for an Order of Review in the following terms:

1. The applicant not be discharged as to an information alleging an offence under Section 86(1)(e) of the Crimes Act, 1914.

2. A prima facie case had been made out against the applicant in respect of an offence under Section 86(1)(e) of the Crimes Act 1914.

3. The first respondent proceed to deal with the applicant pursuant to Section 41(4) of the Justices Act, 1902 (NSW) IN respect of an offence under Section 86(1)(e) of the Crimes Act, 1914.

4. An application on behalf of the applicant that certain witnesses be recalled for further cross-examination by Counsel for the applicant be refused.

5. An application on behalf of the applicant for a stay of committal proceedings against the applicant in respect of an offence under Section 86(1)(e) of the Crimes Act, 1914 be refused.

There is some confusion underlying the above description of the "decisions or conduct" which is reflected by a lack of precision and detail in the grounds which are stated in the Application.

The basis for paragraph 5, supra, was an assertion that it would be an abuse of process for the stipendiary magistrate to commit Dr Moss for trial unless certain undertakings were given concerning evidence which would be called for the prosecution at the trial. Counsel for Dr Moss relied upon the decision of Rath J. in Miller v. Ryan (1980) 1 N.S.W.L.R. 93 (see also R. v. Canterbury and St. Augustine's Justices; ex parte Drake (The Times, 19 March 1983)). We are not concerned whether a magistrate hearing committal proceedings may decline to continue with those proceedings on the ground that they are an abuse of process. What is here alleged to involve abuse is related not to the conduct of the committal proceedings but at most involves the power of the trial court to ensure fairness if necessary by a stay or dismissal at the trial: cf Barton v. The Queen (1980) 147 C.L.R. 75. In any event, the committal proceedings have not yet progressed to the point at which the magistrate is required to decide whether Dr Moss is to be committed for trial. The stay application, on the basis on which it was made, was plainly premature at the stage at which the committal proceedings had arrived when the application for review was made to this Court.

Paragraph 5 aside, the complaints sought to be raised by Dr Moss, broadly stated, are that the prosecution evidence could not sustain the finding by the magistrate of a prima facie case or, if it could, that the conclusion was erroneous because the magistrate misdirected himself in the approach which he adopted. Paragraph 4, supra, although expressed to raise a separate matter for review, is really directed to raising an additional complaint in respect of the magistrate's opinion that a prima facie case had been established by the prosecution evidence and that the committal proceedings should therefore continue. Broadly, the contention for Dr Moss to which paragraph 4 is direcected is that, if a charge is varied, an accused is entitled as of right to further cross-examine witnesses in respect of the reformulated charge before an opinion is formed by the magistrate on the prosecution evidence or, alternatively, that such a right of further cross-examination was necessary to avoid injustice in the subject committal proceedings.

The magistrate's opinion that a prima facie case had been established is the subject of paragraph 2 of the "decisions or conduct" sought to be reviewed. Paragraphs 1 and 3 relate to consequences which, by the Justice Act, follow from the formation of such an opinion. It is convenient to deal with the objection to competency by reference to such matters collectively, reflected as they are by the stipendiary magistrate's determination on 20 December 1982 to proceed with the committal inquiry pursuant to sub-s. 41(4) of the Justices Act.

The Court's Jurisdiction:

Section 8 of the Act gives the Court jurisdiction to hear and determine applications made to it under that Act. The right to apply for an order of review under the Act is given by sub-s. 5(1) to a "person who is aggrived by a decision to which this Act applies", by sub-s. 6(1) to a person who is aggrived by "conduct" in respect of which another person "has engaged, is engaged, or proposes to engage . . . for the purpose of making a decision to which this Act applies", and by s.7 to a person who is aggrived by another person's failure to make a decision to which the Act applies. By sub-s. 3(1), unless the contrary intention appears, a refusal to make a decision constitutes a failure to do so.

Sub-section 3(1) also contains other definitions. Unless the contrary intention appears, "'decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, whether in the exercise of a discretion or not, under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1". For present purposes, "enactment" means an Act of the Commonwealth Parliament or part of such an Act.

Other sub-sections of s.3 elaborate upon both what constitutes a "decision" and what constitutes "conduct" for material purposes. It is sufficient, in the present case, to set forth sub-ss. 3(2), (3), (4) and (5) which respectively provide:

(2) In this Act, a reference to the making of a decision includes a reference to -

(a) making, suspending, revoking or refusing to make an order, award or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing,

and a reference to a failure to make a decision shall be construed accordingly.

(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.

(4) In this Act -

(a) a reference to a person aggrieved by a decision includes a reference -

(i) to a person whose interests are adversely affected by the decision; or

(ii) in the case of a decision by way of the making of a report or recommendation - to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and

(b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.

(5) A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation.

The Rival Contentions:

The primary contention for Dr Moss was that the magistrate's opinion that a prima facie case had been established and his determination to proceed with the committal proceedings constituted a decision of an administrative character made under the Judiciary Act. His alternative argument was that the magistrate had done an "act or thing preparatory to the making of a decision" of an administrative character under the Judiciary Act, and thus had "engaged in conduct for the purpose of making" such a decision by reason of sub-s. 3(5) of the Act. On this hypothesis, according to counsel for Dr Moss, a number of different "decisions" could be pointed to. It was submitted that the magistrate's performance in due course of his functions specified in sub-s. 41(6) of the Justices Act, would if not otherwise a decision, involve the making of a recommendation or report within sub-s. 3(3) of the Act. Alternatively, the contention was raised that the magistrate's conduct of the committal proceedings was for the purpose of a decision by the Attorney-General (or his delegate - sub-s. 3(8) of the Act) under s.69 or s.71 of the Judiciary Act. The appellant disputed each element of each of the alternative bases on which the matter was put forward for Dr Moss. St. John J. upheld Dr Moss' primary contention.

Committal Proceedings and Discretion
under the Judicial Review Act

(a) Committal Proceedings

Before proceeding to consider the specific questions raised by the objection to competency, it seems to us desirable to notice the difficulties which have been encountered in other courts in connection with the supervision of committal proceedings and to address the question of the nature and extent of this Court's discretion in proceedings under the Act.

Committal proceedings have long formed an element of criminal justice in Australia. In Barton v The Queen (supra) Murphy J. (147 C.L.R. at pp. 108-9) expressed doubt as to the desirability of committal proceedings in modern times, at least in certain types of cases. He said that a trend had developed in New South Wales in which conspiracy, fraud and various corporate charges had become delayed because of committal proceedings which went on for months or years and were often interrupted by excursions into the Supreme Court for rulings on points of law or procedure and that such committal proceedings had become a disgrace to the administration of criminal justice in New South Wales. The present committal proceedings against Dr Moss were before the Supreme Court as early as 1979: see Moss v. Brown (1979) 1 N.S.W.L.R. 114. Further, Murphy J. in Barton v. The Queen (supra), expressed the view that the need for committal proceedings in respect of indictable offences has influenced the trend in Australia to turn indictable offences into summary ones and to create new offences as summary rather than indictable offences, with the consequence that fewer defendants were entitled to trial by jury.

The views of Murphy J. were not shared by other members of the Court in Barton v. The Queen (supra). In the opinion of Gibbs ACJ (As the Chief Justice then was) and Mason J., with whom Aickin J. agreed, committal proceedings constitute an important element in the protection which the criminal process gives to an accused person, notwithstanding that the scope of the protection is diminished to some extent by the circumstance that the Attorney-General can file an ex officio indictment irrespective of the decision of the magistrate in the committal proceedings and indeed whether or not committal proceedings are held. Such an ex officio indictment was described as "a rare exception to the general rule" (p.99). Compare per Stephen J. at p.104. Gibbs A.C.J. and Mason J. said in their joint judgment (at p.100) that committal proceedings constituted such an important element in the protection of the accused that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair. "To deny an accused the benefit of committal proceedings is to deprive him of a valuable protection uniformly available to other accused persons, which is of great advantage to him; whether in terminating the proceedings before the trial or at the trial." (pp. 100-101). Stephen J. (at p.105) agreed that committal proceedings were an important part of the protection ordinarily afforded to an accused in the criminal process and that the absence of committal proceedings occasions an "obvious detriment" to the accused in the loss of the opportunity of being discharged by the committing magistrate. He did not, however, accept that committal proceedings were, in all but exceptional circumstances, an essential pre-requisite to a fair trial. Nor did Wilson J.: p.117. Stephen, Murphy, and Wilson JJ. all emphasised the right of the Attorney-General to file an indictment independently of committal proceedings.

There has been, for a considerable period, controversy in New South Wales as to whether the New South Wales Supreme Court has power to make declarations affecting committal proceedings. For example, in Connor v. Sankey (1976) 2 N.S.W.L.R. 570, the majority of the New South Wales Court of Appeal, Moffitt P., and Reynolds J-A., Street C.J. dissenting, held that the Court did not have power and accordingly declined to deal with a claim for a declaration that a magistrate was incorrect in holding that informations purportedly laid under s.86 of the Crimes Act against Mr Whitlam, who had recently ceased to be Prime Minister of Australia, and three other gentlemen who had been in his Ministry, disclosed an offence known to law. In Sankey v. Whitlam (1978) 142 C.L.R. 1, Gibbs A.C.J. held (at p.22) that the view that there was no power to make such a declaration was incorrect, citing the judgment of Walsh J. in Forster v. Jodedex (Aust) Pty Ltd (1972) 127 C.L.R. 421 at p.428. At p.23, in Sankev v. Whitlam, Gibbs A.C.J. said:

"There is no reason in principle why a declaration should not be made that committal proceedings have been invalidly instituted or wrongly continued against the person seeking the declaration."

Notwithstanding these comments, it seems that the controversy in New South Wales is not at an end. For example, in Moss v. Brown, supra, the New South Wales Court of Appeal said (at p.132) that the jurisdictional questions concerning its power to deal with such applications "would require review of a number of decisions of this Court in the light of the judgment of the High Court in Sankey v. Whitlam . . .". See also Coles v. Wood (1981) 1 N.S.W.L.R. 723, per Moffitt P., with whom Samuels J.A. agreed. An additional question concerning the New South Wales Supreme Court's power arises in relation to applications for declaratory relief which concern interlocutory stages of committal proceedings. In Sankey v. Whitlam, supra, Gibbs A.C.J. said (at p.25):

"The question whether the power to grant declaratory relief extends to enable the Court to declare that particular evidence is admissible or inadmissible, or that the evidence led by an informant is sufficient to make out a prima facie case, is a much more difficult one, because it is not so clear in such cases, that the plaintiff has any right' even within the wider sense of that word, in respect of which he can seek relief."

That question is still unresolved so far as we are aware: see, e.g. Perry v. Nash (1980) 32 A.L.R. 177 per McLelland J. (at p.180) and Conwell v. Tatfield (1981) 1 N.S.W.L.R. 595, per Moffitt P. (at pp 603 and 605) and per Glass J.A. (at p.605). In the same case, however, Street C.J., who presided, expressed the view that "the course of authority recognizes that declaratory jurisdiction extends to the determination of disputed matters arising within committal proceedings. . . ." (at p.601).

It is obviously unnecessary to pursue those questions in these proceedings. More relevant are questions concerning the manner of exercise of whatever discretion exists to grant or refuse declaratory relief.

The general approach of the courts to the grant or refusal of a declaration is well established: see, e.g., Salmar Holdings Pty Ltd v. Hornsby Shire Council (1971) 1 N.S.W.L.R. 192, per Mason J.A. with whom Moffitt J.A. agreed (at p.201 and p.203-204) and Forster v. Jododex Australia Pty Ltd, supra, at pp. 437-438 per Gibbs J., with whom other members of the High Court, including Mason J., agreed on this point. Circumstances must exist for the making of a declaration but, subject to that requirement, the discretion to grant or refuse relief must be exercised by balancing the individual features of each particular case. Whatever be the practical effect, dismissal on a discretionary ground does not in point of law determine substantive issues so as to prevent their litigation in other appropriate proceedings: Coles v. Wood (1981) 1 N.S.W.L.R. 723 per Moffitt P., with whom Samuels J.A. agreed; cf. per Hutley J.A. (p.727).

Of recent years, there has been considerable attention to these principles in relation to attempts to obtain declarations in respect of committal proceedings, particularly in New South Wales. Various considerations have been alluded to; e.g., that not merely committal for trial but committal proceedings themselves involve detriment to an accused; that committal usually follows from a determination that a prima facie case is established by the prosecution evidence; the power of the magistrate to commit on a charge revealed by the evidence which is different from that alleged in the information; the tentative nature of the magistrate's determinations; the power of the Attorney-General to present an ex officio indictment or to refuse to present an indictment notwithstanding committal; and the undesirability of discontinuity, disruption or delay in the well-established procedures of the criminal law; see, Bacon v. Rose (1972) 2 N.S.W.L.R. 793, at pp.797-798; Bourke v. Hamilton (1977) 1 N.S.W.L.R. 470, at pp.479-480, 482, 485, 493; Sankev v. Whitlam, supra, pp. 22, 24, 83; and Barton v. The Queen, supra, p.104. It is necessary to balance the interests of the accused with the interests of the Crown on behalf of the community: cf. Barton v. The Queen (supra at p.101).

In Bacon v. Rose (supra), Street C.J. in Eq. (as the present Chief Justice of New South Wales then was) considered that, if proceedings had been instituted in the face of an express statutory provision, it would be appropriate to make a declaration. In Sankey v. Whitlam (supra), it was held proper to declare that offences charged were not known to the law. In Bourke v. Hamilton (supra), Needham J. held that a declaration should be made if it was clearly established that no examining magistrate, properly directing himself as to the law, could conclude that a prima facie case had been established on any charge.

In Sankey v. Whitlam (supra), Gibbs A.C.J. said (at pp. 25-26):

"In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. . . . a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. Although these remarks may be no more than mere 'administrative cautions' (cf. Ibeneweka v. Egbuna ((1964) 1 W.L.R. 219 at p.224) I nevertheless consider that if a judge failed to give proper weight to these matters it could not be said that he had properly exercised his discretion."

In the same case, Stephen J., with whom Aickin J. agreed, said (at p.80) that in many cases refusal of relief as an exercise of discretion "may be called for so as to avoid interference with the due and orderly administration of the law and with the proper exercise by magistrates of their functions in committal proceedings". Mason J. said (at pp 81-82):

". . . a plaintiff for declaratory relief in relation to committal proceedings needs to show some special reason why the court should grant the relief sought in lieu of allowing the committal proceedings to pursue their ordinary course. . . . "

In Moss v. Brown (supra), the New South Wales Court of Appeal said (at p.132):

". . . the occasions in which this Court should, in the proper exercise of its discretion, entertain applications for orders in the nature of prerogative remedies or declarations in relation to committal proceedings, must be extremely rare. For example, a statement of intention or a revocable decision concerning the future conduct of the inquiry, or an interim refusal to adopt some course, could hardly provide an appropriate basis for the exercise of any jurisdiction which the Court has."

See also Perry v. Nash (supra at p.180); Conwell v. Tuckfield (supra at p.601); Atkinson v. United States of America Government (supra at p.235); and compare Imperial Tobacco Ltd v. Attorney-General (1981) A.C. 718, at pp.741, 742, 746, 752.

It is sufficient, for immediate purposes, to observe that there is a considerable body of authoritative judicial opinion that exceptional circumstances will generally be required before a superior court will consider interfering in committal proceedings, particularly at an interlocutory stage. Failure to permit criminal proceedings to follow their ordinary course will, in the absence of special circumstances, constitute an error of principle, as Gibbs C.J. pointed out in Sankey v. Whitlam, supra, at p.26.

(b) The Court's Discretion under the
Judicial Review Act

The pattern of judicial attitudes revealed by the foregoing observations can only have present materiality if a discretion exists in this Court to refuse relief in respect of an application for review under the Act notwithstanding that the conditions precedent to the exercise of the Court's power to grant relief are fulfilled.

Rights to make an application in respect of a decision to which the Act applies, in respect of conduct engaged in for the purpose of making such a decision, and in respect of a failure to make such a decision are conferred on persons aggrieved by ss. 5, 6, and 7 respectively. The grounds upon which an order may be sought are specified in those sections. The manner in which applications are to be made is specified in s.11, which also deals with the time for making applications. A person interested in proceedings under the Act may apply to the Court to be made a party to the application (sub-s. 12(1)), and the Court may, in its discretion, grant such an application conditionally or unconditionally or refuse it: sub-s. 12(2). The Attorney-General may intervene: s.18. The court is given jurisdiction to hear and determine applications made to it by s.8. With qualifications which are not immediately relevant, s.9 excludes the jurisdiction of State Courts in respect of, inter alia, matters which may be reviewed by this Court under that Act.

There is no need in this case to consider whether the Act exhaustively defines the Court's powers in proceedings under that Act, or whether the Court's other powers, e.g. under the Federal Court of Australia Act, also apply: cf. Thomson Australian Holdings Pty Ltd v. Trade Practices Commission (1981) 37 A.L.R. 66 at p.73. Attention can conveniently be confined to the Act. Leaving aside such powers as the Court may have for interlocutory purposes (see e.g. ss. 13, 13(a) and 15), the provision of the Act specifically dealing with the powers of the court in respect of applications under the Act is s.16 which provides:

"16.(1) On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:

(a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the Court specifies;

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;

(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing of which the Court considers necessary to do justice between the parties.

(2) On an application for an order of review of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Court may, in its discretion, make either or both of the following orders:

(a) an order declaring the rights of the parties in respect of any matter to which the conduct relates;

(b) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing or the refraining from the doing, of which the Court considers necessary to do justice between the parties.

(3) On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Court may, in its discretion, make all or any of the following orders:

(a) an order directing the making of the decision;

(b) an order declaring the rights of the parties in relation to the making of the decision;

(c) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties.

(4) The Court may at any time, of its own motion, or on the application of any party, revoke, vary, or suspend the operation of, any order made by it under this section."

Section 10 of the Act, so far as may be presently relevant, states:

"10.(1) The rights conferred by sections 5,6 and 7 on a person to make an application to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision -

(a) are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and

(b) shall be disregarded for the purposes of the application of sub-section 6(3) of the Ombudsman Act 1976.

(2) Notwithstanding sub-section (1)-

(a) the Court, or any other court, may, in a proceeding instituted otherwise than under this Act, in its discretion, refuse to grant an application for a review of a decision, conduct engaged in for the purpose of making a decision, or a failure to make a decision, for the reason that the application has been made to the Court under section 5, 6 or 7 in respect of that decision, conduct or failure; and

(b) the Court may in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision for the reason-

(i) that the applicant has sought a review by the Court, or by another court, of that decision, conduct or failure otherwise than under this Act; or

(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

(3) In this section, 'review' includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order."

Nowhere, except in para 10(2)(b), does the Act expressly empower the Court to refuse relief, although obviously that power must exist when no basis for relief is established.

The principles for determining whether a court has a discretion to refuse relief notwithstanding that a case for relief is shown are not really in doubt although their application frequently occasions difficulty. Examples abound. Many are collected in Pearce on Statutory Interpretation, 2nd Edition, Chapter 11, especially paragraphs 230-236. Additional modern instances include the decision of the Full Court of this Court in Owens v. Australian Building Construction Employees and Builders Labourers Federation (1978) 19 A.L.R. 569 at pp. 577-578; see also Re Reilley (1979) 23 A.L.R. 357 and Re Dunsborough Districts County Club Inc. (1982) W.A.R. 321. No doubt the distinctions are fine but they exist. No useful purpose would be served by an attempt at analysis and comparison of the various cases. The leading Australian authorities are Smith v. Watson (1906) 4 C.L.R. 802 and Ward v. Williams (1955) 92 C.L.R. 496. Shortly stated, the principles which those decisions establish may be summarized sufficiently for present purposes as follows:

1. The word "may" is always permissive or facultative in its meaning, and is never obligatory.

2. Prima facie, when the word "may" is used to confer a power, the exercise of the power is not compulsory.

3. However, the contrary may emerge from the enactment by which the power is granted; although the word "may" is always permissive in a particular enactment its operation may be such as to oblige the Court to act. This may appear in a number of ways; for example, from the general scope and objects of the enactment, the nature or purpose of the power, the character of the person or tribunal to whom or to which the power is given or of the functions of that person or tribunal, the conditions upon which the power is exercisable, and/or the identity of the person or class of persons for whose benefit the power is conferred.

4. Thus, where a jurisdiction is given to a court, generally, at least, the conferral of the jurisdiction carries with it the duty to entertain applications for the exercise of that jurisdiction.

5. (a) Permissive language may be used in such a case because it is for the court to determine the existence and validity of the claim.

(b) Further, such language is consistent with the existence of a discretion in the court as to the kind of relief to be granted in the event that the claim is established.

(c) Such language does not necessarily indicate a discretion to refuse relief notwithstanding the establishment of the claim.

6. Conversely, the existence of a duty to exercise a jurisdiction does not of itself necessarily establish the further obligation to grant relief upon application and upon satisfaction of the existence and validity of the claim. (See, also, Re Carl Zeiss Pty Ltd's Application (1969) 122 C.L.R. 1 at p. 5, per Kitto J.)

7. Given that such a discretion exists, it must be exercised judicially on grounds which go to the scope and purpose of the enactment.

8. The existence, nature and extent of a court's jurisdiction granted in permissive language by an enactment cannot be determined merely by reference to the use of the word "may", but depends upon the construction of the relevant statutory provision in the context of the enactment as a whole.

The application of these principles to the Act leaves no doubt but that, once the jurisdiction of the Court is properly enlivened by a sufficient application, there is an obligation on the Court to entertain that application: cf. R. v. Commonwealth Court of Conciliation and Arbitration (1949) 78 C.L.R. 389, at p.398. However, as has been noted, the existence of that obligation is not inconsistent with a power in the Court to refuse relief notwithstanding that the statutory preconditions to a grant of relief are satisfied. In our opinion, such a discretion does exist under the Act, but that conclusion is not solely dependent upon the language in which the Court is given power in s.16.

Each of sub-ss. (1), (2) and (3) of s.16 must be read subject to the implicit proviso that the specified relief may be granted only if a basis for relief under the Act is established. Subject to that, the narrower view of those sub-sections would limit the discretion to the selection of the appropriate form of order from the designated categories. However, the natural meaning of the language used is apt to confer upon the Court a discretion both as to whether or not to grant relief, provided that a basis for relief is established, and, if relief is to be granted, as to the form of relief; cf. Evans v. Friemann (1981) 35 A.L.R. 428 at p.435, per Fox J.; Cox v. Lightly (unreported judgment of Neaves J. delivered on 1 July 1983). The words "in its discretion", are emphatic of the discretionary nature of the Court's power.

There are broader indications arising from a consideration of the Act as a whole which confirm us in the view that the Court has such a power. We instance, firstly, the nature of the rights given by the Act and the class of persons to whom they are given. Of greater significance are the powers conferred on the Court when considered in conjunction with the grounds upon which it may give relief. Notwithstanding the particularity with which those grounds are stated, no narrow or restricted view of the operation of the Act is warranted. Its broad purpose was to invest this Court with jurisdiction to supervise administrative action in the Commonwealth sphere in all its aspects. The Act came into force at a time when courts, both in Australia and elsewhere, were in the process of expanding common law and equitable remedies with a view to ensuring, more so than was the case in the past, that the administration acted according to law. Those remedies were (and are) the prerogative writs (or orders in the nature thereof), the declaration of right and the injunction. Each of them is a discretionary remedy. The relief for which s.16 of the Act provides includes an order quashing or setting aside a decision, an order declaring the rights of the parties and an order directing any of the parties to do, or to refrain from doing, any act or thing. Each of these remedies has its parallel in the common law or equitable remedies previously available in the Supreme Courts of the States and still available in the High Court; cf. s.9 of the Act. It would be strange indeed if this Court, in administering an Act plainly intended to provide comprehensively for an improved system for judicial review of administrative action, were not to have the same wide discretion to grant or refuse relief as do courts dealing with applications for the traditional common law or equitable remedies.

The consideration of a number of the particular provisions of the Act supports this approach. Sub-s. 16(4) with its grant to the Court of power, either on application or even of its own motion, to revoke vary or suspend the operation of any order made by the Court under s.16, strongly suggests that there is no absolute right in an applicant for relief to relief of one kind or another once the basis of a claim for relief is established. The power of the Commonwealth Attorney-General to intervene in the proceedings under s.18, and the power of other persons to intervene under s.12 with the leave of the Court, without any indication that such leave is only granted to a person interested in establishing that no basis for relief exists, also point in the same direction. Finally, para. 10(2)(b) expressly provides one circumstance in which the Court has a jurisdiction to refuse relief, notwithstanding that a basis for relief is established. Unless that provision is to be read as impliedly excluding other reasons which might disentitle an applicant to relief, a construction which, no doubt, is arguable but is not in our view correct, s.10 constitutes a recognition of the existence of the discretion which we consider is to be found in the statute.

"Decision"

Against that background, we turn to the first question raised by the objection to competency, namely, whether the magistrate has made a "decision" or engaged in "conduct" for the purposes of a "decision" within the meaning of the Act. There are two elements in this issue, but we propose to assume initially that what has been done bears the requisite administrative character.

Particular difficulties have been encountered in determining what is relevantly a "decision" when what is in question is a ruling during the course of proceedings which does not of itself determine the outcome of the proceedings at that point. See, e.g. Re Davidson's Patents (1921) 1 Ch. 69; Registrar of the Workers' Compensation Commission of New South Wales v. F.A.I. Insurance Ltd (1977) 1 N.S.W.L.R. 422 at pp. 436 and 448; Co-operative Retail Services Ltd v. Secretary of State for the Environment (1980) 1 W.L.R. 271; R. v. Lands Tribunal; ex parte City of London Corporation (1981) 1 W.L.R. 985; Metropolitan Water Sewerage and Drainage Board v. Histon (1982) 2 N.S.W.L.R. 720 at pp. 722, 725 and 727-729; and Bland v. Chief Supplementary Benefit Officer (1983) 1 W.L.R. 262. It has been said that, in judicial proceedings, "the natural, obvious and prima facie meaning of the word 'decision' is decision of the suit by the Court": Rajah Tasadolug Rasul Khan v. Manik Chand (1902) L.R. 30 Ind. App 35, cited in Commonwealth v. Bank of New South Wales (1949) 79 C.L.R. 497 at p.625, but that obviously provides no basis upon which to accord to the word a similar prima facie meaning in respect of a decision of an administrative character.

The difficulty was first noticed in the subject context in Director-General of Social Services v. Chaney (1980) 31 A.L.R. 571 which concerned the Administrative Appeals Tribunal Act, not the Act. It is of course necessary in seeking to apply decisions on the one statute to cases involving the other to recognize that there are important differences; for example there is no counterpart in the Administrative Appeals Tribunal Act to either sub-s. 3(3) or of s.6 and sub-s. 3(5) of the Act.

Mrs Chaney lodged with the Administrative Appeals Tribunal an application to review a determination of the Director-General of Social Services which confirmed earlier determinations within his Department that she was not entitled to a Widow's Pension. The earlier determinations had been made at a time when no appeal lay to the Administrative Appeals Tribunal but the Director-General's confirmatory determination was made after the Administrative Appeals Tribunal (Social Services Act) Regulations had commenced operation.

When the application for review came before the President of the Tribunal (Davies J.), counsel for the Director-General argued that the Tribunal had no jurisdiction. The learned President ruled on the material before him that the Tribunal did have jurisdiction and, on Mrs Chaney's application, made an order which was directed to entitling Mrs Chaney to receive a pension pending the determination of the application for review or further order. The Director-General appealed to this Court under sub-s. 44(1) of the Administrative Appeals Tribunal Act which permits an appeal on a question of law from any "decision" in a proceeding before the Administrative Appeals Tribunal.

The Full Court, by a majority (Deane and Fisher JJ, Northrop J. dissenting), held that the appeal was incompetent. The leading majority judgment was delivered by Deane J. In an oft-quoted passage his Honour exposed the problem as follows (at p.590):

"The word 'decision' is a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word 'decision' may be apt to include the determination of any question of substance or procedure, . . . or the meaning of the word may be limited to a determinaion effectively resolving an actual substantive issue. When the word 'decision' has the last mentioned limited meaning, it can refer to any such determination, whether final or immediate . . . or be limited to referring only to a determination which effectively disposes of the matter in hand."

Little difficulty has been experienced with the initial choice presented in that statement. It has been generally accepted that it is an overt manifestation of the result of a decision-maker's thought processes, not unrevealed views, which may be the subject of review: see, e.g. per Northrop J. in Ricegrowers' Co-operative Mills Ltd v. Bannerman (1981) 38 A.L.R. 535 at p. 541. The question whether it is only an administrative determination which effectively disposes of the matter in hand which is a reviewable "decision" is not so easily answered and was not answered in Chaney's Case. What was there of concern was not what administrative decisions are reviewable by the Tribunal, but what decisions by the Tribunal may be appealed. The majority held that, subject to presently immaterial qualifications, only a determination which effectively disposed of proceedings before the Tribunal was a "decision" for the purposes of sub-s. 44(1) of the Administrative Appeals Tribunal Act.

It was not in question in Chaney's Case that the definition of "decision" in the Administrative Appeals Tribunal Act was not directly applicable to the construction of sub-s. 44(1): see per Northrop J. (at p. 585) and Deane J. (at p. 591) who said:

"Section 3(3) of the Act defines a reference in the Act to a 'decision' as including a reference to a litany of activities of both a positive and negative nature culminating in 'doing or refusing to do any other act or thing'. The provisions of s3(3) would seem more apposite to define a reference to the substantive 'decision' of the original decision maker than to confine the scope of a reference to a 'decision' of the Tribunal upon review. Subject to that qualification, the specific activities mentioned in the definition in s 3(3), which are in the nature of effective action rather than intermediate 'decision' on the path to such action, provide some indication that a reference to 'decision' in the Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination. The indication which s.3(3) provides to that effect is, however slight." (Emphasis added).

In our opinion, nothing in that passage warrants a conclusion that Deane J. was offering a considered opinion that, in sub-s. 3(3) of the Administrative Appeals Tribunal Act, "decision" meant, or prima facie meant, only "ultimate and operative" determinations, and not "intermediate determinations" in the administrative decision-making process.

In Riordan v. Parole Board of the Australian Capital Territory (1981) 34 A.L.R. 322, Lockhart J. at p. 329 expressed himself as disposed to give the word "decision" the same prima facie meaning in the Act which Deane J. had suggested it might have in sub-s. 3(3) of the Administrative Appeals Tribunal Act. No doubt, Lockhart J's opinion would have to be read as confined to sub-s. 3(2) of the Act which is analogous to sub-s. 3(3) of the Administrative Appeals Tribunal Act. At the least, some modification is made necessary in the case of the Act by sub-s. 3(3) and, perhaps more importantly by sub-s. 3(5). Under the Act not only may "doing or refusing to do any . . . act or thing" be a "decision" (para. 3(2)(g)), so may the making of a report or recommendation pursuant to an enactment before such a decision is made (sub-s. 3(3)); and "the doing of any act or thing preparatory to the making of" such a decision, although not itself a "decision", may constitute reviewable "conduct".

In Riordan's Case, what was sought to be reviewed was an opinion which had been expressed by the Parole Board of the Australian Capital Territory. Under s.19 of the Parole Ordinance 1976 (A.C.T.), when a non-parole period expired, the Parole Board was required to form an opinion whether the information before it justified the release of the prisoner. If it was of the opinion that the information before it did not justify the prisoner's release, the Board was required to give the prisoner a statement in writing of the reasons for its opinion and an opportunity to be heard. A parole order could then only be declined if the prisoner either failed to request an opportunity to be heard or if the Parole Board, having taken into account any matters put to it by him, was of the opinion that the prisoner should not be released.

Lockhart J. pointed out that even if a prisoner failed to request that he be heard by the Parole Board, it did not follow that the Board was obliged to decline to make a parole order. It might change its opinion for a variety of reasons including any additional material which might be placed before it which it did not have when forming its earlier opinion. His Honour said (at p. 331):

"Nothing follows directly from the Board's initial opinion save that the machinery of s.19 is invoked to permit the applicant, if he so desires and, provided he makes his request in writing within the specified period, to be brought before the Board and put his case to it as to why he should be released on parole"

Accordingly, in his Honour's opinion, the Board's initial opinion was merely the catalyst which entitled a prisoner in respect of whom a non-parole period had expired to appear before the Board to put his case; it involved no adjudication or determination of an issue or, if it did, involved only the determination of an issue arising in the course of making an ultimate determination and not an ultimate determination itself. Lockhart J. proceeded on the basis that sub-ss. 3(3) and (5) of that Act did not arise for consideration. His Honour described the question to be decided in that case (at p.326) as whether the Parole Board's opinion was a "decision to which this Act applies" within the meaning of the Act and, his Honour said (at p.331) that the question whether the Board's opinion "answers the description of 'conduct engaged in for the purpose of making a decision'" was not a question which arose on the hearing of the objection to competency which was before him and so he would say nothing about it.

We think there may be a question concerning the proposition that the Parole Board's opinion was not an adjudication or determination of any issue. Further, we cannot accept that an interim opinion is necessarily not a reviewable decision.

In Roberts v. Garrett (1982) 40 A.L.R. 311, the applicant brought an application for review under the Act in respect of a ruling, rejecting a preliminary submission advanced by the applicant, which had been given in the course of proceedings before a Tribunal established by s.16 of the Commonwealth Employees (Re-deployment and Retirement) Act 1979. McGregor J. upheld an objection to competency. His Honour said (at p.324):

"I consider that the majority here have done no more than give a ruling, necesarily interim, on a view they have formed of an argument. This is not a 'decision', still less one of an 'administrative character'. . . . The majority have, I consider, after giving a ruling, then merely recorded an intention to resume the hearing of the appeal which they undertook on the requirement of the applicant. Again, there is there, no decision or anything to be relevantly described as of an 'administrative character'."

Later McGregor J. expressed the opinion that the applicant was not "a person presently 'aggrieved' by the interim ruling or . . . the present intention to resume the hearing". His Honour's view that the applicant had not been shown to be a person whose interests were or would be adversely affected was, as we understand it, dependent upon the opinion which he had earlier stated that the Tribunal had not "expressed a concluded view". However, we have some difficulty in seeing why a party to proceedings is not a person aggrieved when a submission which, if accepted, would resolve proceedings in the party's favour, is either rejected or not accepted. A person who can show a grievance beyond that of an ordinary member of the public is a person aggrieved: see Toohey's Ltd v. Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 per Ellicott J. (at p. 79),a statement which has been approved on a number of occasions by the Full Court (see for example Ricegrowers Co-operative Mills Limited v. Bannerman (1981) 38 A.L.R. 535; and Fowell v. Ioannou (1982) 45 A.L.R. 491 at p. 504; see also sub-s. 3(4)). Roberts v. Garrett, like Riordan's Case,lends support to the proposition that such an interim ruling as was there in question is not a reviewable decision under the Act.

On the other hand, in Huston v. Costigan (1982) 45 A.L.R. 559, Toohey J. held that a refusal by a Royal Commissioner to discontinue hearing evidence which related to charges pending against the applicant was a reviewable decision within the meaning of the Act. His Honour (at p.562) derived support from the opinion of Ellicott J. in Ross and Heap v. Costigan (1982) 41 A.L.R. 319 that the Royal Commissioner's proposal to question witnesses regarding certain matters affecting the applicants was (perhaps more accurately might be) a "decision" and was, in any event, conduct for the purpose of making a decision. As Toohey J. there pointed out, that aspect of Ellicott J's judgment was not challenged on appeal: cf. Lloyd v. Costigan (unreported judgment of the Full Court delivered 9 May 1983).

In Director-General of Social Services v. Hangan (1982) 45 A.L.R. 23, Fitzgerald J. said (at p.46) that the position remains that there is no automatic test which can be universally applied to say whether or not a particular determination is a reviewable "decision". Even had Deane J. in Chaney's Case, supra, expressed a concluded view that "intermediate" determinations are never reviewable, there would in appropriate cases remain scope for debate as to whether a particular determination was properly characterized as merely "intermediate". Hangan's Case, like Chaney's Case, concerned the Administrative Appeals Tribunal Act, not the Act. As we have already mentioned, the latter includes material provisions which are not to be found in the former, especialy sub-s. 3(3), s.6 and sub-s. 3(5). As a result of those provisions, any distinction which might be able to be drawn for the purposes of the Administrative Appeals Tribunal Act between "intermediate" and "ultimate and operative" determinations becomes increasingly obscured when attention is turned to the Act.

The review of the authorities we have undertaken reveals, in our opinion, some inconsistency in the approaches of various of the judges of the Court as to what is a decision for the purposes of the Act. This is understandable. The legislation has been in force for little more than three years. The factual situations which have been presented to the Court for consideration have been many and varied. Judges have understandably adopted a pragmatic and a cautious approach to the question of construction which is involved. Care has been taken not to decide more than has been necessary in order to dispose of the instant case. The advantage of this approach has been the leaving open of the question of the meaning of "decision" pending the acquisition by the Court as a whole of a sufficient experience to give it more understanding of the ramifications of what is involved.

In our opinion this case raises more squarely than any in the past the problem of what is a reviewable decision. We are required to express a more precise view about it than has so far been necessary. We have been assisted in our task by the judgments to which we have referred and our knowledge of the accumulated experience which the Court has had in administering the Act.

The attribution of a wide meaning to "decision" in the Act to include any decision of an administrative character seems to us to accord with the broad list of activities which are included in the non-exhaustive statutory definition of the word in sub-s. 3(2) which are further expanded in sub-s. 3(3). The very presence of the latter sub-section is, in our opinion, incompatible with the notion that only ultimate and operative determinations are reviewable. Furthermore, such an approach seems to us to be consistent with the Schedules to the Act. It is unnecessary in these proceedings to say more and it is therefore inappropriate to enter upon the as yet unresolved question as to the proper use of those Schedules in the interpretation of the Act: compare Evans v. Freeman (1981) 35 A.L.R. 428 at p.434 and Tooheys Limited v. Minister for Business and Consumer Affairs (1981) 36 A.L.R. 64 at p.73; affirmed 42 A.L.R. 260, with Australian National University v. Burns (1982) 43 A.L.R. 25; see, generally, Pearce on Statutory Interpretation p.72 para. 92.

In our opinion, there is no limitation, implied or otherwise, which restricts the class of decision which may be reviewed to decisions which finally determine rights or obligations or which may be said to have an ultimate and operative effect. Such a conclusion is, in our opinion, in accordance with the plain legislative intention revealed by the words of the Act.

We acknowledge that to some the giving of a wide meaning to "decision" in the Act may be disturbing. There will be concern that the proper administration of government will be unduly delayed, and in some cases stultified, by a proliferation of applications to the Court, some perhaps made without any real prospect of success, but in the hope that the very making of them may tend to achieve an applicant's purpose. There will be concern also that the Court's list will become unduly congested making it less able to provide the expeditious service which is so clearly desirable in this field. And there will finally be anxiety that the limited funds of legal aid agencies may be unnecessarily depleted by premature, and even baseless, applications. But in Australian National University v. Burns (1982) 43 A.L.R. 25, Bowen C.J. and Lockhart J. said (p.30):

"Commonwealth legislation in the field of administrative law is intended to seek a balance between justice to the individual and efficiency of administration, between private rights and public advantage. The administrative process must be efficient in the sense that government policy must be implemented effectively. Nevertheless the achievement of that objective must be consistent with fair play to the individual. The community must be satisfied that the administrative process is conducted with due regard to maintaining a balance between the public interest which it advances and the private interest which it distrubs. The legislation was intended to provide remedies for wrongs done to individuals whose interests are adversely affected by administrative decisions."

The matters to which their Honours refer constitute a public interest which is not less important than the expeditious implementation of government policies and decisions and the due administration of government in its various aspects. If that administration is not being carried out according to law, it cannot be said to be "due" in any real sense of the term.

In any event this Court is not justified in taking any narrow view of the wide language used by Parliament in the Act because of fears that the floodgates will open. To us the language is clear and unambiguous and requires such a meaning to be ascribed to it.

To those who have the concerns which we have mentioned we would say that it should not be overlooked that we have earlier concluded that this Court has conferred upon it a wide discretion to grant or refuse relief in a particular case. It is in the exercise of that discretion that the Court will exercise control over the circumstances in which and the stage at which judicial review will be embarked upon. Furthermore, it should be understood that the Court's discretion is not limited to what is to occur when it comes to the question of whether to grant or refuse final relief. By s.15 of the Act there is no automatic stay of the operation of a decision upon the making of an application to the Court. It will always be for the Court carefully to consider whether a stay should be granted. One of the matters that will be taken into account is whether the application has been made prematurely. Whilst an opportunity to apply for a stay would always be permitted, except perhaps in the most exceptional circumstances, if the opportunity is not availed of there may be no reason why ongoing proceedings, such as committal proceedings, should not be continued: cf. Moss v. Brown (supra) at pp. 131-132.

It should finally be noted that the interpretation to be placed on the word "decision" in the Act will necessarily have a bearing on the relationship between the jurisdiction of the Federal Court and Courts of the States in this field. This is because s.9 precludes the Court of a State from exercising jurisdiction to review decisions to which the Act applies. The jurisdiction of State courts to review matters under federal enactments (e.g. by declaration) expands or contracts according as a narrow or a wide meaning is accorded the word "decision" in the Act (see Clyne v. Deputy Commissioner of Taxation (1983) 1 N.S.W.L.R. 110, and Nomad Industries of Aust. Pty Limited v. Federal Commissioner of Taxation (1983) 83 A.T.C. 4480). Any vagueness or uncertainty in the scope of the word "decision" in the Act could only lead to the growth of a grey area between the jurisdictions of the Federal and State Courts in this field, which would be most undesirable. A broad practical approach to the language of the Act, on the other hand, will not only accord with the evident legislative policy but will also more likely result in a consistent and logical relationship between this Court and State Courts and reduce the grey area of jurisdictional uncertainty.

We therefore conclude that the Magistrate's opinion that a prima facie case had been established and his determination to proceed with the committal proceedings constituted one or more decisions which are reviewable if of an administrative character and made "under an enactment". The decisions are those, review of which was sought, in paragraphs 1, 2 and 3 of the Application. For reasons earlier given the refusal of the Magistrate to grant the application mentioned in paragraph 5 is not a proper subject for review. That leaves the refusal by the Magistrate to grant the application mentioned in paragraph 4 that certain witnesses be recalled for further cross-examination. We have already pointed out that paragraph 4 is really directed to raising an additional complaint in respect of the magistrate's opinion that a prima facie case had been established by the prosecution evidence and that the committal proceedings should therefore continue.

If that refusal does not constitute a decision, a question arises as to whether it may not constitute conduct for the purpose of making a decision to which the Act applies; s.6. The decision for the purpose of which the conduct was being engaged in might be the decision that there was a prima facie case or that the matter should proceed, or, more likely, it would be the decision which is provided for in sub-s. 41(6) of the Justices Act whether to commit Dr Moss for trial or not. Upon the basis of all that we have previously said such a decision must be within the Act provided, of course, it is of an administrative character and made under an enactment.

Inevitably, the statuory language presents difficulties in relation to what is conduct for the purpose of making a decision. It seems clear that sub-s. 3(5) of the Act provides an expansive and not an exhaustive definition. Apart from what is included by that sub-section, investigation is called for as to the purposive relationship between the conduct and some decision of the requisite character. Beyond that, concern is centred on whether conduct is "preparatory" to a decision. Not every prior step will be properly so described. It may often, if not always, be necessary to investigate the proximity of the connection between the conduct and the decision and perhaps to have regard to the intention with which the conduct occured. A further obvious potential difficulty which may intrude is the necessity for an applicant to be aggrieved by the conduct at a time when details of the actual decision may be unknown and, more particularly, when it may not be known whether the decision will be favourable or unfavourable. However, in view of the terms of sub-s. 3(5), perhaps even taking evidence and/or continuing with an inquiry may constitute conduct which can be called in question.

There is no need to examine such problems in detail in these proceedings. We see no reason to doubt that the magistrate's refusal to allow further cross-examination of Crown witnesses was conduct engaged in for the purpose of making a decision.

In view of the conclusion at which we have arrived, there is no call for us to consider the alternative bases upon which counsel for Dr Moss sought to resist the objection to competency.

Administrative Character

Senior counsel for the appellant was not concerned to question the nature of the proceedings before the magistrate. He conceded that they were ministerial or administrative in character: see Amman v. Wegener (1973) 129 C.L.R. 415,(at pp. 435-436)per Gibbs J., Sankev v. Whitlam (supra) per Mason J. (at p.83) compare Atkinson v. United States of America Government, (supra) per Lord Upjohn (at p.239); Pearce v. Cochiarro (supra), at pp.607-609. But he claimed that the magistrate's decision to find a prima facie case was nevertheless of a judicial character. That was because the magistrate, although acting administratively, was required in the discharge of his functions, to act judicially; see inter alia, Royal Aquarium and Summer & Winter Garden Society v. Parkinson (1892) 2 Q.B. 431 per Lopes L.J. at p.452, R. v. Electricity Commissioners ex parte London Electricity Joint Committee Company (1920) Limited (1924) 1 K.B. 171 per Atkin L.J. (at p.205).

What is presently in issue is only whether or not the particular decisions now sought to be reviewed are administrative in character. There is no call to consider here the proper characterization of other decisions which a magistrate may be called upon to make beyond those actually sought to be reviewed even though the power to make such other decisions may be connected, or ancillary, and such decisions may be called for in the same proceedings.

We are clearly of opinion that the fact that the magistrate was bound to act judicially, i.e. justly and fairly, provides no reason why the conclusion should be drawn that decisions made or to be made by him in the course of administrative proceedings were or would be of a judicial, rather than an administrative, character for the purposes of the Act. The decision as to whether there is, or is not, a prima facie case and, if there is, the further decision as to whether or not to commit an accused person for trial are the central steps in the administrative process which is involved. To say that a magistrate hearing committal proceedings is bound to act judicially is to do no more than to describe how he must perform his administrative function. It does not turn his decision into a judicial one nor does it make his decision judicial in character. Indeed, this is clearly established by authority: see, e.g. R. v. Davison (1954) 90 C.L.R. 353, per Kitto J. (at p.373), R. v. Trade Practices Tribunal ex parte Tasmanian Breweries Pty Ltd (1970) 123 C.L.R. 361, at p.373; Sankey v. Whitlam (supra), at p.80. For that reason alone the appellant's first submission should be rejected.

But there is a more particular reason connected with the operation of the Act itself which leads one to the same result. The Act recognises that many of the decisions which may be the subject of review pursuant to its provisions will be decisions of persons, bodies or tribunals that are bound to act judicially. This is most clearly seen from a consideration of the grounds upon which the Court may grant relief, particularly the ground provided for in para. 5(1)(a) of the Act which is that a breach of the rules of natural justice occurred in connection with the making of the decision. The rules of natural justice apply primarily to persons or bodies bound to act judicially whether in the discharge of administrative or judicial functions. So the Act was intended to expose decisions to review when a person or body acting administratively was bound to act judicially and thus afford to persons likely to be affected by a decision natural justice. The acceptance of the appellant's submission would be seriously restrictive of an important provision of the Act. To adopt it would run counter to the plain intendment of the legislation.

Under an Enactment

We are of opinion that the Magistrate's decisions or conduct, which are challenged in these proceedings, were under the Judiciary Act and, consequently, were "under an enactment" in the relevant sense.

Sub-section 68(2) of the Judiciary Act has received the attention of the Courts on a number of occasions and there is little difficulty in appreciating the manner of its primary operation in effecting a grant of federal jurisdiction or power to State Courts including power to conduct committal proceedings in respect of federal offences. Given that there is a State enactment which invests a State Court with jurisdiction - in this case, the investiture by the Justices Act of the Magistrates Court with jurisdiction to conduct committal proceedings in respect of State offences - sub-s. 68(2) "extends the operation of the State enactment" (which does not apply of its own force in relation to alleged offences against federal law) "and applies it" in relation to such offences: Seaegg v. R. (1932) 48 C.L.R. 251 in the joint judgment of Rich, Dixon, Evatt and McTiernan JJ. (at p.255); sub-s. 68(2) gives the State Court in respect of federal offences "a jurisdiction analogous, similar or corresponding to that of the State Court in respect of offences against the laws of the State" in Williams v. R. (No 1) (1933) 50 C.L.R. 536 per Starke J. (at p.543); cited with approval by Gibbs J. in Reg v. Bull (1974) 131 C.L.R. 203 (at p.258); the State Court has jurisdiction "by the joint operation" of sub-s. 68(2) and the State law, per Dixon J. in Williams (No. 1) (supra, at p.544); by their "combined effect", ibid per Dixon J. (at p.545); per Evatt and McTiernan JJ. (at p.549), cf. Peel v. R. (1971) 125 C.L.R. 447, per Walsh J. (at p.461) and per Gibbs J. (at p.465); sub-s. 68(2) "operates upon" the State law to give the State Court jurisdiction in respect of Federal offences, Williams (No. 1) per Dixon J. (at p.546) and in Williams v. R. (No. 2) (1933) 50 C.L.R. 551 (at p. 558); Peel v. R. (supra) per Gibbs J. (at p. 469); ". . . the method pursued (by sub-s. 68(2)) is . . . to take up and adopt" with respect to Commonwealth offences all the jurisdiction of the State Court with respect to State offences, per Dixon J. in Williams (No. 2) at p.559; cf. ibid at p.561; "when sec. 68(2) speaks of the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth, it recognizes that the adoption of State law must proceed by analogy" ibid per Dixon J. (at p.561); accepted in Peel v. R. (supra), per Walsh J. (at p.464), and per Gibbs J. (at p.469). These cases, especially Peel v. R. also establish that the existence of the jurisdiction implicitly carries with it the right and authority to invoke the jurisdiction.

In none of the cases on sub-s. 68(2) which we have found has it been necessary to analyse the position in respect of the powers of the State Court in the exercise of the Federal jurisdiction with which it is invested by that provision, and there has been little reference to sub-s. 68(1). Some guidance can, however, be obtained in relation to sub-s. 68(1) from judicial discussion of other sections in the Judiciary Act.

Just as the investiture of jurisdiction in State Courts which is effected by sub-s. 68(2) does not exclude the operation of sub-s. 39(2) of the Judiciary Act in criminal cases (R. v. Bull, supra, e.g. at p.258, per Gibbs J. and p.275 per Mason J.). so, presumably, s.79 of the Judiciary Act is not displaced in whole or in part by sub-s. 68(1). However that may be, there are marked similarities between the latter two provisions which make the decisions in respect of s.79, which has been the subject of considerable attention, apposite to sub-s. 68(1), which has been little considered.

The first matter to be noticed for present purposes is that the operation of s.79 is, broadly speaking, to pick up and apply State laws: cf. John Robertson and Co Ltd v. Ferguson Transformers Pty Ltd (1973) 129 C.L.R. 65. In this respect, s.79 is little different in effect from sub-s. 68(2). The State law is given effect in the exercise of federal jurisdiction not of its own force as a State law but by the force of the Judiciary Act as a federal law.

Section 64 of the Judiciary Act is another example of such a provision although, in other respects, it has a markedly different operation. In Maquire v. Simpson (1977) 139 C.L.R. 362, Barwick CJ. pointed out at p.369 that, in the exercise by a State Court of federal jurisdiction, ". . . the appropriate law to govern the rights of the parties must be derived directly or indirectly from the Commonwealth . . .". In the same case, Gibbs J. (at p. 377) spoke of the effect of s.64 as being to apply a State law not by its force as a State law but by force of Commonwealth law. In that case, his Honour described the effect of s.64 as being to "render applicable" a State law which otherwise did not bind by its own terms (p. 385). Earlier, he had quoted with approval (at p.382) the statement by Kitto J. in Asiatic Steamship Navigation Co Ltd v. Commonwealth (1956) 96 C.L.R. 397 at p.427, "that s.64 must be interpreted as taking up and enacting" other law, including State law, in suits in which s.64 is relevant. Similarly, in Maquire v. Simpson, supra, Mason J. said at (p.396) that State laws were "picked up and made applicable" by s.64, and Murphy J. (at p.408) said that s.64 "incorporates by reference" State laws and makes them applicable and that the State laws become "surrogate Commonwealth law"; cf. Williams (No. 2) (supra, at pp. 563-564) per Evatt and McTiernan JJ. in relation to sub-s. 68(2) of the Judiciary Act.

There is, however, a serious limitation upon the operation of sub-s. 68(1) and of s.79, each of which only picks up and applies State laws so far as they are applicable. It has been held that it follows that in general, the effect of s.79 is that the State law must be applied according to its terms and the Court exercising federal jurisdiction cannot give it an altered meaning. The sole exception to the generality of that statement which has so far been recognized is that, insofar as a law of the class described is according to its own terms limited in its application to a State Court, s.79 renders it applicable to a Court which is not a State Court exercising federal jurisdiction: John Robertson and Co Ltd v. Ferguson Transformers Pty Ltd (supra), per Walsh J. (at p.83), per Gibbs J. (at p.88) and per Mason J., with whom Menzies J. agreed (at p.95); Maquire v. Simpson (supra), per Gibbs J. (at p. 376). A similar restriction to that contained in s.79 is expressed in sub-s. 68(1): see Williams (No. 2) (supra), per Dixon J. (at p.545); Pearce v. Cochiarro (supra), per Gibbs J. (at p.607), with whom Stephen Jacobs and Aickin JJ. agreed. We have found no recognition to date that, if the State law is according to its terms limited not only to a State Court but to the exercise of State jurisdiction by a State Court, sub-s. 68(1) or s.79 renders it applicable to the exercise of federal jurisdiction by either State or federal Courts. The presently material State law, s.41 of the Justices Act, is by its terms confined to committal proceedings in respect of alleged offences against State law: see e.g. sub-s. 41(1).

Nonetheless, there is authority which assumes to the contrary. A similar limitation was to be found in sub-s. 85E(5) of the Crimes Act, since repealed, which was the provision which was relied on as investing the State Magistrate with jurisdiction to conduct committal proceedings in respect of Commonwealth offences in Connor v. Sankey (1976) 2 N.S.W.L.R. 570 and Sankev v. Whitlam (1977) 1 N.S.W.L.R. 333. Section 41 of the Justices Act was assumed to be applicable in both cases: see Connor v. Sankey, (Street C.J. at p.602), (Moffitt P. at pp. 614-617), (Reynolds J-A at pp. 625-627) and Sankey v. Whitlam (Moffitt P. with whom Reynolds J-A agreed at pp. 352-353) and (Hutley J-A at pp. 361-363). It is instructive that, in those cases, the powers exercised by the Magistrate under s.41 seem to have been characterized as federal powers. Compare also R. v. Loewenthal; ex parte Blacklock (1974) 131 C.L.R. 338 at p.345 and Sankey v. Whitlam (1978) 142 C.L.R. 1, per Mason J. (at pp.93-94).

Possible doubts as to the operation of sub-s. 68(1) are, however, of little concern for present purposes. In the absence of some inconsistent Commonwealth statutory provision, the investiture of a State Court with federal jurisdiction carries with it the implication that that jurisdiction is to be performed in the ordinary and usual way in which the Court exercises similar State jurisdiction (Electric Light and Power Supply Corporation Limited v. Electricity Commission of New South Wales (1956) 93 C.L.R. 554; Russell v. Russell (1976) 134 C.L.R. 495). Although committal proceedings are not correctly described as judicial, the magistrate is commonly and not incorrectly described as a court: Pearce v. Cochiarro (supra) p.607. On this hypothesis, it is sub-s. 68(2) not sub-s. 68(1) of the Judiciary Act which applies s.41 of the Justices Act, but the result is the same.

The view that the magistrate's decisions or conduct was under an enactment is not in conflict with Australian National University v. Burns (1982) 43 A.L.R. 25 and Parkes Rural Distributors Pty Limited v. Glasson (Full Court, 21 July 1983, unreported).

Burns' Case decided that the University's decision to dismiss Professor Burns was made under his contract of engagement and not under the powers conferred by s.23 of the Australian National University Act 1946. Section 23 empowers the Council of the University to appoint academics and other officers and servants of the University and commits to it the entire control and management of the affairs and concerns of the University. Under the University Act, the Council is empowered to make, alter, and repeal statutes with respect to all or any of a large number of matters but no relevant subordinate statutes had been made. The Full Court held that, although s.23 was the ultimate source of the University Council's power to dismiss Professor Burns, the actual decision to dismiss him, which was founded upon a ground expressly provided for in one of the contractual conditions of appointment, not only was made under the contract but was not made under the Act. The case turned on its own special facts as was recognized by the acknowledgement that, in other cases, a single decision might be made under both contract and "under an enactment" for the purposes of the Act, and that whether that had occurred must depend on the circumstances of each case: see per Bowen C.J., and Lockhart J. (at pp. 34 and 34). The third member of the Court, Sheppard J., pointed out (at p.37) that the University Council had relied upon the contractual provision, and that only in the most indirect way could it be said that its decision was also under the Act. In Burns Case, s.23 of the University Act was obviously considered as a provision conferring powers in general terms to a body created by statute as essential incidents of its effective existence and thus as the ultimate source of all actions taken by that body. So considered, it is not difficult to accept that the action to dismiss Professor Burns which was taken under his contract of engagement and was not taken under the University Act. Compare Board of Fire Commissioners (New South Wales) v. Ardouin (1961) 109 C.L.R. 105, per Taylor J. (at p.124). Indeed it may be said the decision would not have been taken under that Act even if it had not been taken under the contract in the sense that the dismissal was wrongful because it was not authorised by the contract. Generally speaking, at least, there is no difficulty in accepting that contractual bargains, even where one party's power to contract stems from statute, may occupy a somewhat special position in relation to the review process.

The approach in Burns may be contrasted with Duncan v. Defence Forces Retirement and Death Benefits Authority (1980) 30 A.L.R. 165. In that case a dispute arose between the applicant and the respondent authority concerning whether, for the purpose of fortnightly superannuation contributions payable by the applicant which would be reflected in his retirements benefits, the applicant should be treated as holding the rank of Commander (his substantive rank) or Captain (his acting rank). The authority's opinion was of practical rather than legal consequence but was considered to be a "decision" by a Full Court consisting of Brennan, Keely and Lockhart JJ. A further question arose whether it was a decision made in the exercise of powers conferred by an enactment within the meaning of sub-s. 26(1) of the Administrative Appeals Tribunal Act. If it was, it was necessary to identify the power to make the administrative decision which the Tribunal was invited to review. The Full Court said (at p.170) that power was to be found in the provision of the statute which confided to the authority the "general administration" of the statute and that the authority acted as it did in its fulfilment of its function of administering the statute and in the exercise of the powers conferred upon it to do so.

In Parkes Rural Distributors Pty Ltd v. Glasson, supra, the applicant applied for an order of review in respect of a certificate that an amount had been overpaid to it and was repayable to the State of New South Wales. The certificate had been issued by an officer of the Australian Public Service who was, in accordance with an instrument made pursuant to a Commonwealth Act, appointed to be an "authorised officer" under a complementary New South Wales statute. Both the instrument under the Commonwealth Act and the State Act provided for the issue of such a certificate. The instrument provided how the amount was to be determined and the State Act required that it be determined in accordance with the instrument. By the State Act, the applicant became liable upon issue of the certificate to pay the amount certified to the State of New South Wales and that amount was recoverable in a Court of competent jurisdiction. By the Commonwealth Act and the instrument under it, the amount recovered by the State of New South Wales reduced the amount to which the State was entitled from the Commonwealth by way of financial assistance.

The majority, Bowen C.J., and Northrop J., held that the determinations evidenced by the certificate were made under the Commonwealth Act and instrument and thus "under an enactment" for the purposes of the Act, notwithstanding that such determinations were also made under the State Act. They further held that Parkes Rural Distributors was a "person who was aggrieved" within the Act, notwithstanding that it was the State Act which gave the determination an operation in respect of its legal rights and obligations. (See also Fowell v. Ioannou (1982) 45 A.L.R. 491 at p.504.) In the course of their judgments, their Honours accepted the views of Bowen C.J. and Franki J. in Ricegrowers' Co-operative Mills Ltd v. Bannerman (1981) 56 F.L.R. 443, 447 that a person is "aggrieved" for relevant purposes if he or she can show a grievance beyond that of an ordinary member of the public although no legal interest is at stake.

Neaves J. dissented because the authorised officer was appointed under the State Act and it was the State Act which gave the certificate an effect upon the rights and obligations of the applicant.

Conclusion

Thus far both the primary judge and this Court have been limited by the course which the prosecutor adopted in objecting to the competency of the proceedings.

The present proceedings must now go back to a single judge. Such matters as this should not be permitted merely to proceed to trial, with all possible interlocutory steps being called for, unless and until the real basis of complaint is identified and seen to be at least arguable. Further, the judge to whom the proceedings are remitted will have a discretion to refuse relief as we have pointed out. The exercise of that discretion will not necessarily call for a full investigation of the merits: see Ward v. Williams (supra, at p.514). In our opinion, the authorities referred to above provide a sound guide with respect to the principles to be applied. The power to make an order of review under the Act in respect of committal proceedings should be exercised only in most exceptional cases, especially in respect of a decision in the course of proceedings. Additional considerations might intrude at the final stage; for example, in respect of committal for trial and commitment to prison pending trial: cf. Sankey v. Whitlam, supra, per Mason J. at p.82; compare R. v. Governor of Brixton Prison; ex parte Scharaks (1964) A.C. 556; R. v. Governor of Brixton Prison; ex parte Armah (1968) A.C. 192. It is, however, not necessary to consider that question further in these proceedings. The only order which is now called for is that the appeal be dismissed with costs.

[1983] FCA 264

12 OCTOBER 1983