Lovell, A.F. v Zempilas, Constantine & Jacobsen, Johannes

[1990] FCA 699

JUDGMENT NO ........ .,...... .-- 6 9 4 ~ 7t+-

C A T C H W O R D S

ADMINISTRATIVE LAW - prerogative writs - prohibition - pending criminal proceedings in State Court - proceedings carried on by Director of Public Prosecutions - officer of the Commonwealth - whether State Court amenable to jurisdiction of Federal Court in prohibition - whether Court should interfere in exercise of State Court jurisdiction - relevant considerations - application alleging criminal proceedings abuse of process and oppressive - power of State Court to regulate its own proceedings in case of abuse of process - fragmentation of criminal proceedings by external review - high threshold discretionary judgment - application dismissed.

Director of Public Prosecutions Act s.6(1)

Judiciarv Act 1903 s.39B

Lane, The Australian Federal Svstem 2nd Edition

-	R v. Murrav and Cormie: Ex parte the Commonwealth (1916) 22
CLR 437
Jaqo v. District Court of New South Wales (1989) 87 ALR 577

v. Moss (1983) 76 FLR 296

REGISTRY

S n o w v. Deputv Commissioner of Taxation (1987) 14 FCR 119
Wellinaton Financial Resources Ptv Ltd v. Terre Enterprise Ptv
Ltd (1986) ATPR 48,116
State Enerav Commission of Western Australia v.

Australia Ptv Ltd (1987) 14 FCR 1

AVON FRANCIS LOVELL v. CONSTANTINE ZEMPILAS and JOHANNES
JACOBSEN

No. WAG 131 of 1990

FRENCH J.
PERTH
5 DECEMBER 1990

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT	)
OF AUSTRALIA
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1 No. WAG 131 of 1990
B E T W E E N :	AVON FRANCIS LOVELL

Applicant

and

CONSTANTINE ZEI-IPILAS

First Respondent

and

JOHANNES JACOBSEN

Second Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:	FRENCH J.
DATE OF ORDER:	5 DECEMBER 1990
WHERE MADE:	PERTH
THE COURT ORDERS THAT:

1.        The application is dismissed.

1. The applicant to pay the respondents' costs of the

   application and the costs of the respondents in the

   proceedings in the Supreme Court.

NOTE:  Settlement and entry of Orders is dealt with

in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT	)
OF AIISTRAT,TA	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1 No. WAG 131 of 1990
B E T W E E N :	AVON FRANCIS LOVELL

Applicant

and

CONSTANTINE ZEMPILAS

First Respondent

and

JOHANNES JACOBSEN

Second Respondent

CORAM:  FRENCH J.
5 December 1990

ReASONS FOR JUDGMENT ON MOTION TO DISMISS APPLICATION

On 22 June 1990 Avon Francis Lovell was charged on the complaint of Johannes Jacobsen, an officer of the Australian Federal Police, made in the following terms:

"...On the 6th day of November 1989 at Perth... AVON FRANCIS LOVELL did without

relating to another person, namely Donald	authorisation divulge taxation information
Leslie Hancock to other persons, such taxation information being disclosed to him in breach of a provision of a taxation law, contrary to Section 8XB(l) (b) of the Taxation Administration Act 1953."

He was requlred to appear in the Court of Petty Sessions at Perth before His Worship Mr Zempilas SM on 8 October 1990. On

2 October 1990 Lovell filed an ex parte motion in the Supreme

Court of Western Australia seeking an order that Mr Zempilas and the Director of Public Prosecutions show cause why a writ of prohibition should not issue to permanently stay the hearing of the complaint on the ground that it constituted an abuse of the court's process and/or oppression against Lovell. The first return date for the motion was 8 October when it came before M r Commissioner Kakulas QC. Mr Courtis appeared for Lovell. There was no appearance for the respondents. On that day the following orders were made:

1.   The complainant Johannes Jacobsen be substituted as second respondent in lieu of the Director of Public Prosecutions.

2 .    The notice of motion and this order be served upon the second respondent within 48 hours of this order.

3.   The order, notice of motion and supporting affidavits be served upon the Director of Public Prosecutions within 2 4 hours.

4.   The substituted second respondent to have leave to file and serve affidavits in opposition to the orders sought by Friday 12 October at 2 pm.

5.    There be liberty to apply on 24 hours notice after service of papers upon the Director of Public Prosecutions.

6.   The motion be adjourned to Monday 15 October 1990.

On Monday, 15 October, the motion came on again before
Malcolm CJ in the Supreme Court. The Director of Public
Prosecutions was represented by Senior Counsel. Counsel for
Lovell then consented to orders in the following terms:

1.   The application against the first respondent be and is hereby dismissed.

2. The application against the second respondent be transferred to the Federal Court of Australia pursuant to s.6(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987.

3.   All questions of costs are reserved to the Federal Court.

Following a committal hearing before M r G. Ajduk SM, Lovell was, on 26 October 1990, committed for trial to the District Court of Western Australia. His first appearance before that Court will be tomorrow, 6 December. There will evidently be no substantive trial at that time.

The transferred application came on for directions in this Court on 26 November 1990. There were two motions returnable on that day. One on behalf of the substituted second respondent Jacobsen, sought an order that the application be dismissed with costs under 0.20 r 2 ( ) The other, filed by Lovell, sought an order that the District

Court of Western Australia be substituted as first respondent	in lieu of M r Zempilas (against whom the application had
already been dismissed in any event). It also sought an order staying the proceedings of the District Court until final determination of the substantive application. Evidence before this Court included an affidavit of William Ian Nairn, Deputy Director and Officer in Charge of the Perth Office of the Director of Publlc Prosecutions. In that affidavit he
indicated that the Director of Public Prosecutions was carrying on the conduct of the proceedings against Lovell and had done so since 26 March 1990 when he was first charged for offences later replaced by the charge laid on 22 June. The current criminal proceedings are carried on by the Director of Public Prosecutions under s.6(1) of the Director of Public Prosecutions Act. Nairn's affidavit concluded:

"By virtue of the provisions of the DPP Act and the conclusion of the committal proceedings the Second Respondent has no role in directing the conduct of, or the carrying on of, any further proceedings against the Applicant in respect of the said offence. His role is to attend at Court to give evidence and to conduct any further investigations which this Office sees fit to request."

I take it from this and the history of the matter to date, that the charge against Lovell will be embodied in an indictment to be laid and prosecuted by the Director of Public Prosecutions under the provisions of his Act. And it does not appear that that is in dispute. Nor, in the circumstances, is

application is now the Director of Public Prosecutions rather	it controversial that the proper second respondent to the
than Jacobsen. Recognising that fact, counsel for Lovell moved orally to substitute the Director for Public Prosecutions as second respondent.
The jurisdiction of this Court invoked by the application is that conferred by s.39B of the Judiciarv Act 1903, which provides:

"39B(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(2) The reference in sub-section (1) to an officer or officers of the Commonwealth does not include a reference to -

(a)	a person holding office under the Industrial Relations Act 1988 or the Coal Industry Act 1946; or
(b)	a Judge or Judges of the Family Court of Australia."

The Director of Public Prosecutions is an officer of the Commonwealth and therefore amenable to the statutory jurisdiction. The Judges of the District Court, it being a State Court, albeit exercising federal jurisdiction in relation to the proposed charge, are not officers of the Commonwealth and not directly amenable to the jurisdiction - B

v. Murrav and Cormie: Ex parte the Commonwealth (1916) 22 CLR

437 at 452, 464 and 471. It may be arguable that the Judges of the District Court are amenable to prerogative review by

being "pendent partles" in a case in which the primary	this Court in the exercise of its accrued jurisdiction, they
exercise of the jurisdiction relates to the conduct of an officer of the Commonwealth - see generally Lane, The Australian Federal Svstem 2nd Edition, p.648. But assuming that they are so amenable, the question remains whether the Court should entertain the invocation of such jurisdiction in relation to pending criminal proceedings.
The substantive application for prohibition is brought on the basis that the criminal proceedings instituted against Love11 are oppressive and an abuse of process. As to the merits of that contention it is unnecessary for me to comment although I have read the affidavits filed in support of the application. But if the prosecution is an abuse of process that is a matter which can be raised and argued in the District Court, which may stay its own proceedings in order to prevent any abuse - Jaao v. District Court of New South Wales
(1989) 87 ALR 577. Nothing has been demonstrated on the
materials before me to support the proposition that this Court should interfere in the proceedings pending in the District Court on the basis that such proceedings are an abuse of the process of that court. This Court does, in exceptional cases, review the decisions of magistrates to commit persons for trial on offences under federal law. That is on the basis that the committing magistrate exercises an administrative function under federal law. And even then, as was said by the Full Court in v. Moss (1983) 76 FLR 296 at 326 the power
to make an order of review under the Administrative Decisions in respect of committal proceedings
should be exercised only in most exceptional cases.
I do not exclude the possibility that there may be a class of case in which this Court would restrain the prosecution of proceedings in another court by an officer of the Commonwealth. The Court has the power in some cases to restrain persons subject to proceedings in its jurisdiction from pursuing related civil actions in other courts. One example is the Commissioner of Taxation, who may be restrained from pursuing recovery proceedings in a State Court while subject to an application for judicial review in this Court - see Snow v. Deoutv Commissioner of Taxation (1987) 14 FCR 119. But even in those cases the discretion to restrain a party from proceeding in another court must be exercised with reference to consideratlons of comity and convenience between courts - Wellinoton Financial Resources Ptv Ltd v. Terre Enterprise Ptv Ltd (1986) ATPR 48,116 at 48,120; State Enerw Commission of Western Australia v. Fluor Australia Ptv Ltd (1987) 14 FCR 1 at 12-13. Assuming the relevant jurisdiction exists and that the Court has power to stay the prosecution of the actlon against Lovell, its intervention would involve an unacceptable intrusion on the jurisdiction of a State Court quite capable of addressing the issues raised by the application. It would also result in a most undesirable fragmentation of the trial process. In my opinion the application should not be entertained further. And although in one sense it may be said that the Court thereby anticipates
on the most favourable view of Lovell's case, that to prolong a discretionary judgment, that judgment is sufficiently clear,

the proceedings in this Court would be to waste the time and money of all concerned. The application will therefore be dismissed with costs.

I certify that the proceeding
seven (7) pages are a true copy of the
Reasons for Judgment of his Honour

Justlce French.

Associate: ~ / L u &

Date:  5 ~ J G V 1990

Counsel for the Applicant: Mr J. Courtis

Solicitors for the Applicant: Claudio Russo Shaw

Counsel for the Respondent: Mr P. Macliver

Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 26 November 1990

Date of Judgment: 5 December 1990